No Arbitration of Claims Against Scientology After Plaintiffs Had Left the Church

From Bixler v. Superior Court, decided Wednesday by the California Court of Appeal (Justices Laurence Rubin, Carl Moor, and Lamar Baker):

Petitioners … are former members of the Church of Scientology who reported to the police that another Church member [Daniel Masterson] had raped them. They allege that, in retaliation for their reports, the Church encouraged its members to engage in a vicious campaign of harassment against them. {[T]hey state no cause of action against Masterson for sexual assault. Instead, they allege causes of action against all defendants for stalking, physical invasion of privacy, constructive invasion of privacy, [and] intentional infliction of emotional distress ….}

After petitioners brought suit in superior court against the Church and related entities and persons, some of those defendants moved to compel arbitration, relying on agreements that provided all disputes with the Church would be resolved according to the Church’s own “Ethics, Justice and Binding Religious Arbitration system.” That system was created to decide matters “in accordance with Scientology principles of justice and fairness.” …

The contract on its face apparently applied to all litigation against the Church:

My freely given consent to be bound exclusively by the discipline, faith, internal organization, and ecclesiastical rule, custom, and law of the Scientology religion … in all my dealings of any nature with the Church, and in all my dealings of any nature with any other Scientology church or organization which espouses, presents, propagates or practices the Scientology religion means that I am forever abandoning, surrendering, waiving, and relinquishing my right to sue, or otherwise seek legal recourse with respect to any dispute, claim or controversy against the Church, all other Scientology churches, all other organizations which espouse, present, propagate or practice the Scientology religion, and all persons employed by any such entity both in their personal and any official or representational capacities, regardless of the nature of the dispute, claim or controversy.

But the court concluded that, as a matter of California law, the arbitration agreement couldn’t be enforced after the parties left the Church:

Individuals have a First Amendment right to leave a religion. We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues….

According to plaintiffs, Scientology forbids members from contacting police to report a crime committed by a member. It instructs members that reporting such incidents is considered a “high crime” and subjects the reporting member to punishment. Scientology utilizes so-called “Fair Game” tactics to “attack, harass, embarrass, humiliate, destroy, and/or injure individuals who Defendants declare to be an enemy of Scientology, known in Scientology as a ‘Suppressive Person’ ….” Masterson is a television actor; Scientology granted him special treatment when he achieved “celebrity status.” To that end, Scientology worked to prevent plaintiffs from reporting Masterson’s crimes and, once they did, declared plaintiffs Suppressive Persons. Scientology then mobilized an aggressive Fair Game campaign against them.

While the Fair Game campaigns against each plaintiff differed, collectively plaintiffs allege Scientology’s agents committed the following acts against them: surveilled them, hacked their security systems, filmed them, chased them, hacked their email, killed (and attempted to kill) their pets, tapped their phones, incited others to harass them, threatened to kill them, broke their locks, broke into their cars, ran them off the road, posted fake ads purporting to be from them soliciting anal sex from strangers, broke their windows, set the outside of their home on fire, went through their trash, and poisoned trees in their yards. This conduct was alleged to be pursuant to Scientology’s policies and procedures.

According to plaintiffs’ complaint, Scientology’s directives are that Suppressive Persons are to be silenced by whatever means necessary. Scientology instructs members “to damage the person’s professional reputation, file frivolous lawsuits, and harass and surveil ‘the enemy.'” Scientology’s “policies and procedures encourage and/or instruct followers to ‘ruin [the individual] utterly.'” …

In addition to events occurring while still a Scientology member, each petitioner alleged an invasive Fair Game campaign occurring entirely after she had left the church. Bixler alleged that she formally terminated her relationship with the Church in October 2016, then reported Masterson to the police. It was only after her report that she was declared a Suppressive Person and she and her husband were subjected to the Fair Game campaign.

Jane Doe #1 learned in June 2005 that she had been declared a Suppressive Person and was no longer permitted to engage in religious services at the Church. More than a decade later (after she asked the LAPD to reopen its investigation into Masterson), the Church commenced its Fair Game campaign against her. Jane Doe #2 ceased practicing Scientology entirely in 2004. In 2017, she reported Masterson’s assault to the LAPD, at which point the Fair Game harassment began….

This case involves both petitioners’ First Amendment rights to leave a faith and Scientology’s right to resolve disputes with its members without court intervention. When applied to a dispute that arose after petitioners left the faith, and which can be resolved on neutral principles of tort law, we find petitioners’ right to leave the faith must control….

An individual possesses an “inalienable First Amendment right to the free exercise of religion, which includes her right to change her religious beliefs ….” “The constitutional freedom to question, to doubt, and to change one’s convictions, protected by the Free Exercise and Establishment Clauses, is important for very pragmatic reasons. For most people, religious development is a lifelong dynamic process even when they continue to adhere to the same religion, denomination, or sect.”

California precedent counsels against enforcing agreements that would violate an individual’s right to change religions. The issue arose in In re Marriage of Weiss (Cal. Ct. App. 1996). There, prior to marrying her Jewish husband, a woman converted to Judaism and executed a written “Declaration of Faith,” in which she pledged to rear all their children “‘in loyalty to the Jewish faith and its practices.'” After the couple divorced, the woman returned to Christianity.  She was attending church and had enrolled the couple’s child in Sunday school. The child also attended a weekly club meeting at the church and had attended church summer camp. The father “acknowledged [the mother] had the right to expose the minor to her religion, but objected to the minor’s being indoctrinated in the Christian faith or being enrolled in any activity ‘that would be contrary to his Jewish faith.'”

The trial court refused to restrain the mother’s religious activity with the child. The father appealed, arguing the court erred in not enjoining the mother from engaging the child in Christian religious activity. The Court of Appeal affirmed, recognizing the rule in California that a parent cannot enjoin the other parent from involving their child in religious activities in the absence of a showing of harm to the child.

The father argued that the written antenuptial agreement should be enforced as an exception to that rule and that the mother should be bound by her promise. … [T]he Weiss court disagreed. The court concluded the agreement was legally unenforceable for two reasons: enforcement would result in improper judicial entanglement in religious matters and would violate the mother’s First Amendment right to change her religion.

As Presiding Justice Klein wrote, “Further, in view of [the mother’s] inalienable First Amendment right to the free exercise of religion, which includes the right to change her religious beliefs and to share those beliefs with her offspring, her antenuptial commitment to raise her children in [the father’s] faith is not legally enforceable for that reason as well.”  While a parent’s religious freedom may yield to other competing interests, “‘it may not be bargained away.’ [Citation.]” …

Just like written antenuptial agreements to raise children in a particular faith are not enforceable against a parent who has left the faith, Scientology’s written arbitration agreements are not enforceable against members who have left the faith, with respect to claims for subsequent non-religious, tortious acts. To hold otherwise would bind members irrevocably to a faith they have the constitutional right to leave….

Scientology argues that petitioners simply agreed to be bound by Scientology dispute resolution procedures no matter what. As Scientology puts it, “An ‘irrevocable‘ agreement to ‘forever‘ waive civil proceedings and submit to Scientology Ethics and Justice Codes in ‘any dispute’ with Churches of Scientology is a condition for participation in the religion.” It argues that this agreement should be enforced like any other agreement.

Enforcing this provision without regard to petitioners’ First Amendment rights would mean that if the Church or a Church member committed any intentional or negligent tort against a former member of the Church, that former member would be bound by Scientology dispute resolution procedures regardless of the fact that the member had left the Church years, even decades, before the tort. In effect, Scientology suggests that one of the prices of joining its religion (or obtaining a single religious service) is eternal submission to a religious forum—a sub silencio waiver of petitioners’ constitutional right to extricate themselves from the faith. The Constitution forbids a price that high….

The Church of Scientology also argued that having this rule would discriminate against religious arbitration agreements, in favor of secular arbitration agreements. No, said the court, suggesting that a similar rule might apply to secular arbitration agreement as well:

[The Church] has provided no authority upholding an arbitration agreement ad infinitum, and the California case on which Scientology relies for this proposition is distinguishable. In Buckhorn v. St. Jude Heritage Medical Group (Cal. Ct. App. 2004), … [t]he Fourth District Court of Appeal [upheld an arbitration agreement provision in a contract], on the basis that his tort claims “stem[med] from the contractual relationship between the parties,” and were therefore within the scope of the arbitration agreement. Here, petitioners’ claims against Scientology do not stem from the contractual relationship; they stem from the alleged “Fair Game” campaign Scientology engaged in as retribution for reporting Masterson to police after they left the Church. This harassment allegedly arose because of petitioners’ relationship with Masterson and their reporting his conduct to police, not because of their prior affiliation with Scientology. Indeed, plaintiff Riales alleged a similar Fair Game campaign of harassment, and it is undisputed she was never a member….

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New York’s Liquor Store Lobby Fights Against To-Go Drink Sales by Bars, Restaurants


New York Gov. Kathy Hochul (D) announced this month that she hopes to make permanent the relaxed to-go alcohol rules her disgraced predecessor Andrew Cuomo adopted in March 2020, during the early days of the pandemic. As the name suggests, the looser rules allow bars and restaurants to sell alcohol beverages to go.

When the governor announced her proposal during her first annual State of the State address earlier this month, it was met mostly with applause. Leaders in the hospitality industry, which has been devastated by a one-two punch of Covid cases and related government restrictions, raised a glass to toast the plan.

“Cheers to Governor Hochul for announcing her support to permanently bring back drinks to go at restaurants and bars,” said New York City Hospitality Alliance head Andrew Rigie. “The drinks to go policy provides critically important revenue streams to struggling restaurants and bars and is extraordinarily popular with the public, unsurprisingly.”

Covid-era alcohol deregulation has served to provide a rare bit of welcome news during otherwise lousy times, as I explained in a July 2020 column applauding states for legalizing to-go drinks. Those states liked their to-go laws, too. Indeed, many commentators are confident alcohol-to-go sales are here to stay. And with good reason. Dozens of states around the country relaxed rules for to-go alcohol, including cocktails. While some states have reversed those gains, most haven’t. Over the summer, various outlets reported that at least a dozen states had made their to-go booze rules permanent.

New York State’s situation is a bit of an outlier. As The Hill explained in the wake of Hochul’s announcement, Cuomo actually let the state’s to-go drinks rules expire in June, months before he was forced to resign. Hochul’s move would not only bring back the exemption but also make it permanent.

But Hochul’s plans, while they’ve garnered widespread support, are facing some serious if predictable pushback in the form of powerful liquor store interests in New York State. That’s not a big surprise. As CNBC reported in May, liquor store lobbies have comprised the leading opposition against to-go cocktail legislation around the country. In New York State, liquor store interest groups are singing a familiar, sky-is-falling tune.

“This proposal will devastate our liquor stores, create a public health crisis, increase DWI incidents and underage sales, and upset the on- and off-premise system of distribution and sale of alcohol,” reads a hyperventilating statement by MetroPSA, a New York liquor-store lobby, that was reported by Wine Spectator last week.

Those claims are largely false, nebulous, and overblown. “Is there a downside to loosening booze rules?” I asked in 2020. “I don’t think so. While data suggest Americans have increased our alcohol consumption during the pandemic, harms tied to alcohol have also decreased. For example, data show drunk driving arrests are ‘down dramatically’ during the same period.”

Notably, some critics have rightly suggested that Hochul’s proposal doesn’t do enough or go far enough, or do much to reform the state’s outdated liquor laws. Steve Barnes, the Times Union‘s restaurant critic, explained in a great column last week that notes Hochul’s proposal seems to exclude tasting rooms, which had been part of Cuomo’s to-go plan and which are angry over having been excluded by the current governor’s remarks. Barnes also explains that making to-go alcohol sales permanent is just one of many necessary steps New York State lawmakers should take to improve the regulatory climate for producers and consumers in the state. Lamenting the fact that “corners of the state’s archaic booze laws still remain unaddressed,” Barnes explains, for example, that most alcohol producers in the state can’t ship directly to consumers in the state. 

As Barnes suggests, the least New York State lawmakers should do is pass a new, permanent law that allows bars, restaurants, tasting rooms, and other alcohol producers and sellers in the state sell drinks to go. Once they’ve done that, lawmakers should get to work on making other meaningful and lasting alcohol reforms that give sellers and buyers more choices.

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Two Years Without Twitter

On January 22, 2020, I decided to take a brief hiatus from Twitter. I made this decision shortly before the New York Times published my op-ed on impeachment. (Remember the first impeachment?!). I did not know how long my self-imposed exile would last, or whether I would have the discipline to stick with it.

Two years later, I am proud to be Twitter free. I still post links to my posts. I will click on a link to a tweet a friend sent me. And I occasionally use the direct messaging feature. But I never scroll through the timeline. I never check my notifications. If you’ve @’d me over the past year, I haven’t seen it. If you’ve screen-shotted my work to subtweet me, I have no clue. I suspect the fact that I do not respond emboldens some people to @ me with righteous indignation. More power to them.

Last year, when I marked my first year of Twitter sobriety, I commented:

In hindsight, I quit Twitter at just the right time. I missed the Senate impeachment trial. I missed the pandemic. I missed Blue June. I missed the racial justice marches over the summer. I missed the election. I missed the election litigation. I missed January 6, 2021. Yet, I was able to stay remarkably well informed. And, I would say, much happier and saner. Plus I have more time. I suspect I save hours every week–time much better spent elsewhere.

The past year, thankfully, has been less eventful. The impeachment trial was over in a blink of an eye. And the Biden administration has been refreshingly boring. Yes, we are still stuck in a pandemic, and the Supreme Court is still deciding COVID cases. Hopefully this time next year, we can all get back to regular order.

You should try and quit Twitter. Stop checking your timeline. Stop checking your notifications. The world will continue. And you can avoid the awful cesspool.

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The Real-World Conflicts in Yellowstone Can Be Solved by Markets, Not Drama


Yellowstone, the modern-day Western starring Kevin Costner, is one of the most popular shows right now. The series, which just wrapped up its fourth season, follows Costner’s John Dutton as he fights to preserve his family’s way of life on a sprawling ranch in Montana’s Paradise Valley. The action-packed drama has captured the attention of Americans across the country—many of them in small-market towns and cities in “flyover” states.

The show’s popularity—with its sometimes corny dialogue and Middle America–focused themes—has media elites scratching their heads. Vox called it “a watchable yet almost relentlessly three-out-of-five-stars TV show” and lamented that it “is not particularly interested in saying anything grand or sweeping about the world.” HBO’s Succession, which has a similar family business legacy theme, is an Emmy-winning darling of media critics, but it draws only a fraction of Yellowstone‘s viewership. Just 1.7 million viewers tuned in to Succession‘s season finale last month, compared to more than 11 million for Yellowstone‘s. A Yellowstone prequel starring Tim McGraw and Faith Hill that debuted last month, 1883, drew nearly 5 million viewers, making it the largest cable premiere since 2015.

Yellowstone‘s appeal, along with the apparent disinterest of the chattering class, reveals familiar red-state–blue-state cultural divisions. The show isn’t moralizing or preachy. But part of its appeal is how it features real-world issues facing heartland communities—topics that are often unfamiliar, or poorly understood, by coastal critics who might perceive Yellowstone as lowbrow.

Consider the show’s depiction of the tensions between urban and rural communities—whether in the context of disputes over water rights, property boundaries, or wildlife interactions. Our organization, the Property and Environment Research Center (PERC), which is based in Bozeman, Montana, near where Yellowstone takes place, recently published an entire magazine issue exploring issues in the show. Many of the plotlines involve big-city developers or transplants butting heads with locals who see the outsiders as a threat to their traditions and livelihoods, and the result is usually conflict instead of cooperation.

For instance, in the series premiere, developers from California sit in a Bozeman conference room looking over their plans to build a subdivision next to the Duttons’ ranch. When one wonders whether they can unilaterally dam a river, diverting it from the ranch to supply their vacation-home development with water and power, another says: “On our land, it’s our river. This isn’t California, gentlemen. This is Montana. We can do whatever we want.” It’s fantasy—a sophisticated Western water rights system known as prior appropriation emerged more than a century ago to preclude such a conflict-ridden approach—but it captures the urbanite-elite disdain for traditional ways of life that Yellowstone so often illustrates.

Take another example: the Duttons’ constant challenges with federal endangered species regulations. At various times throughout the show, the Endangered Species Act is either hamstringing the Duttons’ cattle-ranching business or being used by their adversaries as a weapon to remove them from the land. In one scene, a lawyer for a real estate investor devises a plan to use environmental regulations to attack the family with “a thousand little cuts.” In another, one of the Duttons’ cowboys shoots an endangered grizzly bear in self-defense, prompting a protracted investigation and an attempt by the Duttons to avoid legal punishment under the Endangered Species Act.

The basic problem with the Endangered Species Act is that it penalizes landowners who, like the Duttons, provide habitat for imperiled species. The show shines a light on the urban-rural divide between animal-loving city dwellers who want to save species and the rural landowners who bear the costs of doing so. This often pits endangered wildlife against landowners and leads to a “shoot, shovel, and shut up” approach that is bad for species as well as people. “When someone kills a bear,” says the local sheriff in the grizzly bear scene, “10,000 vegans send letters to their congressmen. You should have buried that thing in a hole before I got here because I ain’t the problem—the feds are!”

Other scenes depict challenges associated with wolves and livestock. As wolf populations have rebounded throughout much of the American West in recent decades, some states have created funds to compensate ranchers for livestock lost to wolves and other predators. Such programs have helped ranchers mitigate some of the costs of living with wolves, but they do little to turn wolves into economic assets in the eyes of rural landowners. For wolf recovery to be sustainable, strategies will need to benefit the local communities that bear the costs of providing habitat for the predators.

Similar issues are playing out in real time. Montana and Wyoming have both recently petitioned the feds to remove grizzly populations from the federal endangered species list, citing dramatic recoveries in recent decades and growing conflicts with rural landowners and residents. Despite attempts by the U.S. Fish and Wildlife Service to delist Yellowstone grizzlies dating back to 2005, the species remains listed in the region due to protracted litigation from environmentalists. Meanwhile, controversies over recent wolf-killing measures adopted in Montana and Idaho are prompting calls to relist wolves, which had previously been delisted. And in 2020, Colorado voters approved a ballot measure to reintroduce wolves in the state—in what amounted to a stark urban-rural split—angering rural residents who will bear the costs. Grim us-versus-them outlooks over wildlife turn disputes about species into all-or-nothing battles, ultimately undermining landowners’ incentives to help recover wildlife.

Strife doesn’t have to triumph. In the real-life Paradise Valley in Montana, ranchers face many of the same challenges as the Duttons—pressures to subdivide, the reality of being land-rich but cash-poor, and modern global economic shifts that increasingly make it difficult to stay in the business of bringing beef to market. To help address such challenges while also promoting conservation, PERC recently launched a new tool to reward landowners for providing wildlife habitat, funded entirely by local groups interested in conserving iconic Yellowstone wildlife. Last fall, we partnered with one ranch family to create the state’s first-ever “elk occupancy agreement“—a voluntary contract that compensates the family for setting aside 500 acres of land as winter habitat for the valley’s migratory elk herds.

Other similar free market arrangements are in the works in the valley, all with the same goal: to reward private landowners who voluntarily conserve habitat that does not benefit just them but also serves as a boon to Bozemanites and even faraway out of staters, many of whom may never vote the same way they would. More new tools will be needed to replace controversy with cooperation, and connect animal-loving urbanites to ranchers who provide habitat, especially given the national backdrop of polarized red-county–blue-county politics. Even as it exaggerates conflict on the screen, Yellowstone frequently alludes to the underlying institutions that are supposed to help settle conflicts over water, land, and other resources. While the show often chooses violence, we shouldn’t have to in the real world.

“There’s a war being waged against our way of life,” John Dutton says in the latest season. For many people across the country, this sentiment rings true. Yellowstone captures it, and, in the process, the attention of more viewers than most other television series. Media critics, along with conservationists and policy makers who care about these issues in the real world, dismiss it at their own peril.

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When Humanitarianism Prolongs the Inhumane


Humane: How the United States Abandoned Peace and Reinvented War, by Samuel Moyn, Farrar, Straus and Giroux, 400 pages, $30

There is a technology that could radically shrink, perhaps even end, incarceration as we know it. But it might make the whole world a prison in the process.

The tech in question is GPS, which allows the authorities to monitor people in real time. Strapped into an ankle bracelet and surveilled by satellite, a criminal can live under house arrest, traveling only to his workplace and other approved locations, paying a share of each paycheck to his victims. As such sentences become more common, there could come a time when only those convicts who pose an actual physical risk to others would be confined in a more traditional way—and even that might be accomplished in a manner more decentralized than those big, brutal penal institutions.

That would be both more efficient and more humane than the old system, and it would deliver victims actual restitution instead of some platitude about “closure.” Sounds good, right?

But the same system that could give greater liberty to people previously confined to cells could also mean less liberty for people who today are unincarcerated. Think of all the victimless crimes that are already on the books, and then imagine how the list might expand if critics couldn’t confront new legislation with the argument Are you sure you really want to put people in jail for that? Ever-larger groups of offenders could be put under ever-more-intrusive sorts of surveillance and restriction, walking the streets but not walking them freely.

You can spin scenarios where we get some version of the first option but not the second; you can spin scenarios where we get the second but not the first. But there’s also an uncomfortable possibility that the first will enable the second, with the state’s hand clasping us more tightly in some ways even as it loosens its grip in others. As Samuel Moyn writes in Humane, “there is no single arc to the moral universe that guarantees that progress comes without regress on other fronts. The one can even facilitate the other.”

* * * * *

Moyn’s book is about wars, not prisons. But the dilemma he describes is strikingly similar. Humane tells the tale of two struggles, the fight to end war and the fight to humanize it, and how one gradually came to supplant the other.

When Moyn writes about humanizing war, he doesn’t mean “humanitarian interventions” launched with promises to end a genocide or spread democracy—though the same people often embrace both ideas. He means making warfare itself more humane, by shielding the lives of noncombatants, outlawing the torture of POWs, and otherwise eliminating atrocities. Moyn, who teaches both law and history at Yale, offers a well-informed guide to how the laws of warfare were born and how they very gradually grew some teeth. Little bitty baby teeth, but teeth nonetheless.

But his account begins elsewhere, with an assortment of 19th century anarcho-pacifists—Leo Tolstoy, Adin Ballou, William Lloyd Garrison—who saw war itself as an atrocity. Garrison eventually made his peace with warfare, supporting the Civil War in order to bring slavery to an end. But Tolstoy drew the opposite conclusion from the abolition of chattel slavery: To him it showed that an ancient, seemingly permanent injustice was not inevitable after all, and that war perhaps could be eliminated one day as well. Moyn notes here that many reformers had fought not to stop slavery but to make it more bearable, “a project that coexisted comfortably with the strengthening of plantation discipline.” Tolstoy would not settle for that sort of reform.

That era’s push to humanize the battlefield was led by people with little interest in ending warfare altogether, and their earliest efforts to write their ideas into law had little impact on how combat was conducted. The peace movement had more momentum, helping inspire a series of arbitration agreements and disarmament treaties and, in 1928, the nobly intended if utterly ineffective Kellogg-Briand Pact, in which a host of nations formally agreed to outlaw war.

Those arbitration agreements were particularly popular. “The idea,” Moyn explains, “was to encourage or force states into a system in which nonpartisan outsiders would adjudicate all or at least some of their differences.” Unlike Kellogg-Briand, this actually got results: The 19th century saw “more than 150 actual instances of arbitrated compromise between states, in circumstances that might otherwise have led to armed strife.” It was a more flexible, decentralized version of what later organizations like the League of Nations and the United Nations were supposed to accomplish. In fact, Moyn notes, “it was widely believed that a system of arbitration between states would avoid the trouble of setting up a more formal international organization of nations.”

Many pacifists put their faith in the League of Nations as well, and in the broader concept of forming a world federation. But that idea wasn’t universally shared. Moyn points out that William Borah, the progressive Republican senator from Idaho, backed the Kellogg-Briand Pact while opposing the League. Borah’s was arguably the more consistent anti-war position: Scratch those world-federalist dreams, and you’ll often come across calls for a policing arm that keeps the peace by force. The United Nations certainly hasn’t been a very pacific organization—and while many world federalists would attribute that to its dominance by a well-armed superpower, a more egalitarian U.N. would still have those blue-hatted troops at its command.

There was less room for the old peace movement in the wake of World War II, but the dream of a world without war stayed alive. And while there’s an obvious overlap between the desire to end warfare and the desire to sand away its ugliest effects, there are places where those paths diverge. As the U.S. escalated the Vietnam War—not exactly a conflict free of civilian carnage—it nonetheless announced that it would follow “the humanitarian principles enunciated in the Geneva conventions.” Meanwhile, anti-war activists focused on the idea that the war itself was illegal.

The latter, with their sometimes rather creative interpretations of international law, sounded more like attorneys pursuing a longshot case than Tolstoyan radicals. (The law treated a war between countries differently than a civil war, for example—and so, Moyn reports, the anti-war Lawyers Committee Concerning American Policy in Vietnam “spent most of its time arguing that South Vietnam was not truly a state.”) But even after the My Lai massacre of 1968 put war crimes near the center of the Vietnam debate, the protesters’ ultimate aim was to end the intervention, not to humanize it.

Moyn contrasts the reaction to the My Lai massacre with the reaction to the Abu Ghraib scandal of 2004, which arguably did more to mobilize opposition to war crimes than opposition to war. That’s certainly the impact it had in Washington. Barack Obama was widely seen as an anti-war insurgent when he ran for president, but while “the most egregious infractions of the prior administration were disowned,” Moyn writes, “Obama’s lawyers claimed authority to continue war indefinitely across space and time, devising formal legal frameworks for targeted killings.” War would be less grisly but also omnipresent.

The resulting synthesis is still essentially intact today. Even former President Donald Trump, a man who skylarked publicly about targeting terrorists’ families, didn’t dislodge it: “He mainly aimed to take the policies of his predecessors further than they had,” weakening Obama’s rules but keeping the basic framework in place.

* * * * *

Needless to say, modern warfare is nowhere near as humane in practice as it is in the rhetoric of the warmakers. Drone strikes regularly hit the wrong targets, and even a narrowly focused killing can have vast and awful secondary consequences. (If NATO’s Libyan airstrikes had killed no civilians, they still would have worsened a gruesome conflict.) But as a thought experiment, Moyn invites us to imagine a day when expertly programmed autonomous drones never hit the wrong man. Even then, he argues, we would have attained “not eternal peace but endless control.”

And would those drones limit themselves to blocking terrorist attacks? Or would the control apparatus turn its automated system of surveillance and violence on smugglers, or migrants, or perhaps the leaders of a nonviolent rebellion in an allied state? Just as a carceral GPS system can be applied to an ever-growing list of offenders, so might this new eternal war. Indeed, the two systems could converge.

Wars today are both fewer and less lethal than in the last century, and that is surely a good thing. It is always better for civilians to be spared bombardment and for jailers to renounce torture. We should celebrate the shifts that make anything more humane.

But we can’t let such reforms mark the boundaries of our goals. “A future of bloodless global discipline is a chilling thing,” Moyn writes, even if bloody global discipline is chillier still. To avoid that fate, we need a “project of challenging hierarchy in all its forms.” Otherwise, the same changes that made those hierarchies less brutal might transform the planet into a battlefield without frontiers and a prison without walls.

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Court Concludes, for TRO, that Federal Disability Law Does Require School Districts to Mandate Masks

From Judge Marilyn Horan’s opinion Monday in Doe 1 v. N. Allegheny School Dist. (which takes the opposite view from today’s decision I note below):

The timing of this TRO motion has left this Court with limited options. School was set to resume tomorrow [Jan. 18] with a masking optional policy. The Court’s ability to conduct a full TRO analysis has been limited to the briefing and argument of the parties. This case and claims are better addressed following a period where the parties have conducted discovery and/or potentially undertaken the proper administrative routes. The prudent and practical approach, given the potential negative impacts on the putative Plaintiffs’ health and education, is that a reasonable period of maintaining the status quo is necessary.

At this stage, the School District has offered the accommodation of cyber school to students who are immunocompromised. The School Board’s proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students’ educational needs and potential family needs to assist their homebound children. In addition to providing mask guidance and information on community spread, the CDC has also advised that “[s]tudents benefit from in-person learning, and safely returning to in-person instruction continues to be a priority.”

In weighing this accommodation, the Court finds, for purposes of this TRO only, that effecting a cyber school only option upon immunocompromised students when faced with optional masks versus burdening the District with students conducting universal masking is not a reasonable accommodation and such violates the spirit of the ADA as enacted by Congress. The School Board’s proffer of the cyber school accommodation fails to account for the impact to the immunocompromised students’ educational needs and potential family needs to assist their homebound children. The Court cannot say, at this stage, that such accommodation meets the protections provided for under the ADA and Section 504….

Both the ADA and Section 504 of the Rehabilitation Act require Plaintiffs to establish that: “(1) they are qualified individuals with a disability within the meaning of Section 504 of the Rehabilitation Act or ADA; (2) they will be excluded from participation in or denied benefits of such services, programs, or activities of the public entity; and (3) their exclusion, denial of benefits, or discrimination occurred by reason of their disability.” The ADA prohibits discrimination that includes “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”

When a state entity, like a school board, fails to make reasonable modifications to its facilities and practices, a party may sue the school board by bringing a claim known as a failure to accommodate claim. A failure-to-accommodate claim differs from other ADA claims in that the plaintiff is not required to show that his injury was the result of purposeful discrimination….

For the purposes of their ADA and Section 504 claims, Plaintiffs and Defendants both agree that Plaintiffs are qualified individuals with disabilities. At the September 22, 2021 Board meeting, the Board reimplemented a mask mandate, based upon express criteria, one of which was a benchmark provision for universal masking based upon when the community transmission rate was at a rate of “substantial” or “high.” As of September 22, 2021, the Delta variant was circulating amongst the community with a community transmission rate of 513 cases per day and a 6.0% positivity rate. As a consequence, for the majority of the 2020-2021 and 2021-2022 school years to date, masks have been mandated within the District. Although wearing masks in the District has been inconvenient and controversial, this mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty.

On December 8, 2021, despite the fact that the community transmission rate was measured at a positivity rate of 10.2% of a total of 3,277 infections for the week beginning December 5, 2021 and still within the “high” category, the Board voted to make masks optional within the District beginning January 18, 2022, conditioned upon whether the Pennsylvania Department of Health’s mask mandate was lifted and the Pennsylvania Supreme Court’s stay order was no longer in effect. As of December 10, 2021, the Pennsylvania Supreme Court vacated the Department of Health’s mask mandate. Thus, the mask optional policy would become effective in the District on January 18, 2022.

The December 8, 2021 Board action also removed the provision that masks were to be required to be worn within the District whenever the community transmission rate was within the “substantial” or “high” categories. The Board provided no explanation for why it decided to lift the mask mandate when the transmission rate was in a category of “high” or for why it removed the community transmission rate categories of “substantial” and “high” as benchmarks for when to require masking within the District.

Presently, since September 22, 2021, the Omicron variant has emerged. The Omicron variant is even more highly transmissible than the Delta variant. As such, the community transmission rate is currently at 3,500 infections per day and a 37.1% positive rate, which is six times higher than the positivity rate on September 22, 2021, when the Board reinstated the mask mandate and established criteria for when masks should be worn in the District based upon rates of community spread. The transmission classification remains at its highest category of “high.”

At this early stage in the litigation and with the little record yet developed, it is curious that, while the Board determined in September 2021 that mandating masks, based upon the transmission rate categories of “substantial” and “high,” was manageable, appropriate, and reasonable, but that in December 2021, when the transmission rates were increased and the category was still at a status of “high,” that the Board voted to eliminate the benchmark and make masks optional. Beyond December and in light of the proliferation of the Omicron variant, which has resulted in significantly increased numbers of infections within the population, with particular increases in infection rates for children, it is concerning that the District has not acted to reinstate the masking mandate and transmission rate categories to avoid the optional masking policy’s January 18, 2022 effective date.

Turning to the Plaintiffs in this case, Child Doe 1 is alleged to have medical conditions that can be classified as immunocompromised, which presents legitimate concerns and risks to health and life from COVID-19 exposure and infection. The Plaintiff has alleged that significant expert opinions exist within the medical and infectious disease fields to support that a layered approach, which includes vaccination, masking, quarantining, contract tracing, social distancing, and increased building ventilation are all required to effectively reduce the spread of COVID-19. It is the combination of these measures that make them effective and, without any one of them, individuals with disabilities, like Plaintiffs and those similarly situated, are at increased risk of contracting the virus and severe illness or death.

Plaintiffs allege that the increased risk of infection due to optional masking within the District creates a barrier to attending in-person classes with their non-immunocompromised peers. The Plaintiffs also allege that the District has failed to make reasonable accommodations for them to access educational services and has placed them at increased risk of physical harm. The Board has provided no explanation for whether it took into consideration any needed accommodations for disabled students in the District when it made the decision to lift the school mask mandate.

Plaintiffs, John and Jane Doe 1, make claims on behalf of Child Doe 1, as an immunocompromised student, plus claims for a class of similarly situated students. The record has not yet been developed to ascertain whether the asserted class will be qualified or have standing. However, at this stage the court will consider that Child Doe 1 is immunocompromised and that John and Jane Doe 1 on behalf of Child Doe 1 have sufficiently established a likelihood of success on their claim that the District’s optional masking policy has the effect of excluding Child Doe 1 from in-person attendance at public school or has otherwise denied Child Doe 1 the opportunity to participate in the in-person services of the District and that any such exclusion is based upon Child Doe 1’s disabilities.

In December, the District removed the benchmark that it had established and implemented for mask mandates when the community transmission category was “substantial” or “high.” Said benchmark and its implementation provided an effective and manageable accommodation to enable immunocompromised students to attend in-person classes with their non-disabled peers. In such circumstance, Plaintiffs have demonstrated a likelihood of success on the merits of their ADA and Section 504 claims based upon the failure of the District to provide a reasonable accommodation for immunocompromised students within the District….

The Court finds that Child Doe 1 is likely to suffer irreparable harm if such access to the District is denied on account of the District’s optional mask policy. The ADA and Section 504 of the Rehabilitation Act mandate that disabled plaintiffs must have equal access to opportunities using the least restrictive means possible. Denying immunocompromised Plaintiffs the opportunity to access educational opportunities in the District will cause the immunocompromised Plaintiffs to suffer irreparable harm.

Additionally, Plaintiffs’ Complaint and Brief in Support of the Temporary Restraining Order suggest that masking is part of the layered approach used to help slow the rate of transmission of COVID-19. The rate of transmission in the community has increased in recent weeks due to the spread of the Omicron variant. The optional masking policy increases risks to the health and wellbeing of the Plaintiffs and all students in the District. Further, immunocompromised students at higher risk are less able to safely attend classes in-person with an optional masking environment. In such circumstances, Plaintiffs have demonstrated a likelihood of establishing that they will suffer irreparable harm….

Students have been wearing masks in the District for the majority of the 2020, 2021, and 2022 school years to date. The mask mandate status has been attained and maintained within the District without unreasonable expenditure or difficulty. The Defendants cite no evidence in their Brief of how masks place an undue burden upon the District. As such, the District not will experience significant hardship if the District again requires the wearing of masks in school….

Additionally, and as Plaintiffs suggest in their Brief, wearing masks slows the transmission of COVID-19. As such, requiring masks in the District weighs in favor of the public interest because it will help to slow the spread of COVID-19 ….

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Will the En Banc 9th Circuit Extend the Second Amendment’s Losing Streak to 51 Cases?

Heller was decided in 2008. Two years later, McDonald incorporated the Second Amendment. In the past thirteen years, the Second Amendment has had barely any impact on federal law. Invariably, lower courts have upheld all manner of gun control regulations, and the Supreme Court has denied reviewed. Leading the charge has been the Ninth Circuit. The government is undefeated in Second Amendment cases, amassing a record of 50-0. And whenever a three-judge panel actually finds a gun law unconstitutional, without fail, the case is reversed en banc. These numbers come, of course, from Judge VanDyke’s dissent in Duncan v. Bonta. You see, Judge VanDyke and his colleagues on the Ninth Circuit are frustrated. In case, after case, after case, they are on the losing end of decisions. I imagine Judges Higginson and Costa from the Fifth Circuit can relate. They should start a support group–Dissenters Anonymous.

Now, VanDyke has tried something different. He actually managed to write a unanimous panel opinion declaring unconstitutional restrictions on firearms. Ventura County prohibited the sale of firearms for 48-days during the start of the pandemic, even as other commercial ventures remained open. This victory will be short-lived. We all know what is going to happen next. The Ninth Circuit, with a few more Biden nominees aboard, will en banc this case faster than you can say Reinhardt! Maybe in a year or so, when we are up to the Omega variant, the Ninth Circuit will drop a 200-page opinion that upholds the gun regulations under intermediate scrutiny. Then, one year later, the Supreme Court will deny certiorari over harsh dissents from the Court’s conservatives.

Frankly, this entire process is a waste of time. So, Judge VanDyke tried something new– write an “alternative” draft en banc opinion–or a fauxpinion, if you will–that reverses his panel opinion.

Since our court’s Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump-start on calling this case en banc. Sort of a win-win for everyone. 

But wait, there’s more. VanDyke adds an element of Mystery Science Theater 3000 to his concurrence.

To better explain the reasoning and assumptions behind this type of analysis, my “alternative” draft below will contain footnotes that offer further elaboration (think of them as “thought-bubbles”). The path is well-worn, and in a few easy steps any firearms regulation, no matter how draconic, can earn this circuit’s stamp of approval.

VanDyke’s fauxpinion is a masterpiece. If you just read above the line, it could have come from any of the Ninth Circuit’s luminaries. Truly, it is pitch perfect. If you read below the line, VanDyke points out how vapid the majority’s jurisprudence is. A few of my favorites:

FN2: We refer to strict scrutiny as a theoretical matter—a thought-experiment, really. Our court has never ultimately applied strict scrutiny to any real-life gun regulation.

FN4: And second, once we’ve concluded that a challenged regulation does not place a “substantial burden on Second Amendment rights,” it’s really game over. A regulation that we’ve already determined does not substantially burden the Second Amendment can be upheld easy-peasy under our watered-down intermediate scrutiny test.

FN8: Whew. Hard work done. It’s all downhill from here!

FN11: But trust us, this is heightened scrutiny. So very heightened.

FN12: Again, it doesn’t matter much what we say here. Once we’re allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it’s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.

What happens next? Well we will probably get an en banc call and reversal. Though, the court may decide this case is not worth fighting over, given how egregious Ventura County’s restrictions were. Hey, the Supreme Court may even summarily reverse this opinion under Tandon v. Newsom. There may be some value to at least let the Second Amendment win once, to prove that the deck is not stacked against the right to keep and bear arms. Also, the easiest way to shut up that guy in Reno is to deny en banc! Think about it!

Or, the Ninth Circuit can take a cue from the Supreme Court, and declare VanDyke’s majority opinion dicta, and find that the actual holding appears in VanDyke’s concurrence–minus the snarky footnotes.

VanDyke’s concurrence concludes, “You’re welcome.”

You’re welcome.

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Federal Disability Law Doesn’t Require School Districts to Mandate Masks

So holds today’s opinion by Judge William S. Stickman IV (W.D. Pa.) in Doe 1 v. Upper Saint Clair School Dist.:

Plaintiffs … allege that their children are “medically fragile disabled students” and that permitting families and students to choose whether to mask will subject them to increased risk of catching COVID-19 and increased risk of harm from the virus. They allege that, in light of their children’s medical conditions, the School Board’s decision to make masking optional violates both Title II of the Americans with Disabilities Act … and Section 504 of the Rehabilitation Act of 1973 ….

To be clear, Plaintiffs do not allege that the policy adopted by the School Board hinders their own child’s ability to wear a mask. Rather, they allege that, by permitting other students and families to choose whether to wear masks, the policy violates the cited statutes. Plaintiffs … [ask, in effect,] that, notwithstanding the vote of the School Board, universal masking would be ordered to remain in place for an indefinite period, provided that transmission of COVID-19 remains “substantial” or “high” in Allegheny County…. Their request for injunctive relief is premised on the position that universal masking is the only reasonable accommodation to which they are entitled under the ADA and the Rehabilitation Act….

There is no question that the School District has enacted a number of safety measures designed to curb the spread of COVID-19 [including physical distancing, cleaning and ventilation, contact tracing, diagnostic and screening testing, and efforts to provide vaccinations to school communities]…. Critically, the Plan also provides for the following “[a]ppropriate accommodations for students with disabilities with respect to health and safety policies”: “The School District will review additional mitigation options for staff members and students who are at higher risk for severe illness, including necessary accommodations under the ADA, Section 504, or the IDEA.” During argument, these provisions were referenced by counsel for Defendants, who explained that accommodations granted to students “who are at higher risk for severe illness” include a variety of measures, including distancing, special seating in classrooms and, if necessary, at-home instruction or virtual classes.

Despite those safety measures and possible accommodations, Plaintiffs take the position that the only reasonable accommodation appropriate in light of child Plaintiffs’ conditions is a requirement of universal masking in the School District … so long as transmission of COVID-19 in Allegheny County is at a “substantial” or “high” level.

Moreover, Plaintiffs’ request is without limitation on duration. While Plaintiffs’ counsel expressed hope that COVID-19 infection numbers fall beneath the “substantial” threshold this year, and suggested that the requested relief is limited to this year, there is no guarantee that will occur. Moreover, the specific relief requested by the TRO and proposed order would require masking indefinitely, so long as the number of cases is “substantial” or higher. (Tr. at 14-15) (“Since the science and the medicine tells us that a virus doesn’t go away by a deadline, we have to use a different metric. And the metric we’re doing is the one that medical professionals rely upon, and its that if the COVID transmission rate, per the CDC for Allegheny County only, is in the substantial or high basis, then masking should stay in place.”)….

With a population of 1.216 million, 607 cases per 7 days would be enough to bring Allegheny County into the “substantial” category. The CDC’s definitions were calibrated to the earlier Delta variant of COVID-19, rather than the significantly more transmissible Omicron variant, which currently accounts for nearly all new infections. With COVID-19 becoming endemic and with a much more transmissible variant, one wonders whether the numbers will ever be low enough to fall below the “substantial” category and/or whether each winter, as respiratory infections seasonally increase, the number will again increase to a level requiring masking under Plaintiffs’ position.

Plaintiffs seem to acknowledge that this could be an issue, and their counsel conceded that the CDC “may revise those guidelines. And if they revise them based upon the level of Omicron, they may up the number of transmissions so that the barometer they’re using makes it more flexible.”

While not alone dispositive, the unreasonableness of Plaintiffs’ position is highlighted by its unprecedented nature. Although immunocompromised children have always been present in our schools, and communicable diseases have always circulated, prior to COVID-19 there was never an argument for mandatory, indefinite, universal masking in schools-much less the argument that the failure of a school district to mandate universal masking constitutes a violation of federal law. Aside from cases addressing COVID-19, the Court was unable to locate a single case where a court held that a reasonable accommodation for an immunocompromised or otherwise vulnerable person was to require all other students and staff of a school, or constituents of an institution or community, to wear a mask or any other type of personal protective equipment.

The unreasonable nature of Plaintiffs’ position is further highlighted by the fact that, while it imposes an unprecedented requirement upon the School District—i.e., mandate universal masking of all students, faculty, and staff or violate the ADA and the Rehabilitation Act—it is not guaranteed to be effective. In other words, Plaintiffs may still become infected with COVID-19. It is common knowledge that wearing a mask is no guarantee against infection. Counsel for Defendants stated that, even with universal masking, the School District still had a number of cases since the onset of Omicron. Moreover, Plaintiffs’ request does not specify a particular type of mask—notwithstanding the fact that public health authorities have called into question the effectiveness of, for example, cloth masks against the Omicron variant.

 For these reasons, the Court holds that Plaintiffs’ request for the indefinite imposition of universal masking will not be found to be a reasonable accommodation when the claims are finally decided on the merits. {See, e.g., L.E. v. Ragsdale (N.D. Ga. Oct. 15, 2021) (“While Plaintiffs may prefer a mask mandate and other stricter policies, Defendants are not required to provide Plaintiffs with their preferred accommodation. So long as Plaintiffs are offered meaningful access to education—and the Court finds that they have been—Defendants have adequately accommodated Plaintiffs and their disabilities.”).} …

The Court [also] holds that granting this TRO would risk imposing substantial harm upon the School District and that doing so would run contrary to the public interest. Specifically, the Court believes that granting the relief sought would risk upsetting the system of popular governance of schools that is an important part of our system of layered and answerable government.

The sole accommodation demanded by Plaintiffs would supersede the democratic vote of the School Board on an issue that elicits strong feelings not only from Plaintiffs, but also from other members of the public. Further, the legal theory proffered by Plaintiffs unduly amplifies the authority of CDC recommendations while, at the same time, severely curtailing the practical authority of the people, through their elected school directors, to make decisions on matters of prudential judgment.

Plaintiffs’ position if accepted, would essentially graft the recommendations of the CDC into the ADA and the Rehabilitation Act. And as a practical matter, elevating CDC recommendations to the level of law would serve to take many decisions relating to health policy and directly impacting citizens out of the hands of their elected representatives and put them into the hands of unknown and unanswerable CDC decisionmakers and unelected and unanswerable federal judges.

There is no question that COVID-19 has challenged every American institution. This Country will continue to face challenges that have scientific or technical considerations which are informed by experts within or outside of government. Governments at all levels would do well to weigh and consider the advice offered by those experts. However, in a democratic republic, the ultimate answer to the question of “who decides” must be the people through their elected and answerable representatives.

In this case, the Court believes that the entry of a TRO would damage the independence and authority of the School Board—the directly elected body entrusted by State law with setting policy for the School District. It would lead, in practical effect, to the elevation of CDC recommendations beyond their appropriate level of authority and to the exclusion of local, democratic authority over matters of prudential judgment. The Court holds that these considerations weigh in favor of a finding that entry of a TRO would be contrary to the public interest….

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Profs Get Preliminary Injunction against University of Florida

The professors who were blocked by the University of Florida from offering expert testimony in a voting rights lawsuit against the state have won a significant legal victory for their academic freedom claims. The university had claimed that such expert testimony was a violation of the university’s conflict of interest policy. That claim caused an outcry among academic freedom advocates, including the Academic Freedom Alliance. The university eventually revised its policy and allowed the professors to work with the parties in the voting rights litigation. Nonetheless, the professors sought an injunction from a federal judge preventing the university from returning to a similar policy in the future. The suit previously survived a motion to dismiss, and today the judge issued a sharply worded opinion granting the preliminary injunction.

It’s worth pausing to note just how shocking Defendants’ position is. Defendants all but recognize that Plaintiffs are speaking in their private capacity on matters of public concern. Yet Defendants claim the right to restrict that speech if they determine—in their unlimited discretion—that the viewpoint expressed in Plaintiffs’ speech would harm an ill-defined “interest” of the University. And what are UF’s interests? Why must Defendants regulate Plaintiffs’ speech? How does Plaintiffs’ speech prevent the efficient delivery of government services, impair discipline, workplace harmony, or employer confidence? Despite being given not one, not two, but four chances to articulate either in writing or at oral argument how Plaintiffs’ speech disrupts UF’s mission, Defendants cannot or will not say.

The full opinion can be found here.

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