“Censorship by Zoom and Other Private Platforms”: The UC Academic Freedom Committee’s Concerns

Just released; it’s from the University’s Committee on Academic Freedom, which is an organ of the faculty (the Academic Senate) rather than of the administration.

The University’s responsibility to protect academic freedom and freedom of expression cannot be outsourced. As we all know, UC currently relies heavily on platforms such as Zoom to facilitate our teaching, research, governance, and the public dissemination of knowledge. UC cannot, however, rely on private companies to protect the academic freedom on which those core university functions depend.

The threats here are not just hypothetical. Zoom has already canceled political events and academic discussions at other institutions, after receiving complaints and finding violations of their terms of service.[1] UCAF’s worries go beyond the facts of particular prior cases, which vary in potentially important ways. UCAF is concerned about dangers evident in UC’s own contract with Zoom, under which Zoom retains largely unfettered discretion to control what content it hosts. We suspect that Zoom is not alone in this regard.

Zoom’s Terms of Service,[2] which incorporate by reference the company’s Community Standards,[3] currently prohibit all of the following:

  • “posting or sending hateful imagery,” where that is defined to include “symbols historically associated with hate groups (e.g. the Nazi swastika),” images of individuals altered “to include animalistic features,” and “logos, symbols, or images whose purpose is to promote hostility and malice against others based on” protected grounds such as race, gender, or religious affiliation;
  • “the celebration of any violent act that may inspire others to replicate it”;
  • depicting “any form of gory media related to death, serious injury, violence, or surgical procedures” or “media that depicts death, violence, or serious physical injury in graphic detail,” including depictions of “visible wounds” and “bodily fluids”;
  • nudity, which is restricted “by default,” though Zoom “may make allowances” when “the intent is clear” that nudity is shared for “educational or medical reasons”;
  • “impersonat[ing] anyone,” defined as “pretending to be someone you are not”;
  • “use [of] another’s name or image without their permission”;
  • engaging in activity that is false or misleading;
  • communicating “any material that is . . . indecent.”

Zoom encourages users to report violations of its Terms of Use and Community Standards through its online “Trust Form.”[4]

From swastikas portrayed in history classes to nudity in art studios, from clinical training in the medical schools to impersonation by our theater clubs, mock trial teams, and school mascots, members of the University of California routinely violate Zoom’s terms and standards in the course of regular instruction, research, and extracurricular activities. Of course, Zoom may never enforce its terms and standards to the absurdly broad extent that their vague language would allow. (Insofar as it would never do so, Zoom should have no objection to clarifying and limiting its contractual language.) Under our current contract, however, the power to decide what content to allow lies with Zoom, not the University. This is an astonishingly open-ended threat to the University’s ability to carry out its fundamental mission.

Zoom has the ability to censor University content on the basis of criteria—such as indecency, falsity, goriness, or the promotion of hostility—that would be unconstitutional for the University to employ in some contexts, and a serious violation of academic freedom in many other contexts. This will surely make companies like Zoom an attractive target for those seeking to influence what gets said, taught, and studied at the University. The University needs to take steps to guard against such outside influence now—particularly now, when UC is so thoroughly reliant on the services of companies like Zoom.

To their credit, our colleagues in Academic Affairs and Information Technology at UCOP had begun meeting to discuss these issues even before UCAF raised them. On December 4, 2020, in a letter to the Council of UC Faculty Associations (attached [see pp. 6-7 of this PDF]), the University Provost also addressed the problem, reaffirming in his letter “that the University of California is committed to upholding and preserving principles of academic freedom.” Bringing attention to these principles is always welcome, but the present threat to them requires a stronger response.

Provost Brown writes in his December 4 letter that “Zoom is a private company that has the right to set its own terms of service in its contracts with users.” This is true, but incomplete: the right to set contractual terms is not Zoom’s alone; the University of California is party to the contract as well. UC has already negotiated additions to its contract with Zoom on issues of data security and privacy. Protecting academic freedom is no less vital. The University of California has the responsibility—and fortunately also the stature and market power—to negotiate terms of service that do not just facilitate the University’s core activities, but preserve the academic freedom that makes them possible in the first place.

UCAF therefore requests that Academic Council call on the administration to take the following steps:

First, negotiate with Zoom for contractual terms that protect the academic freedom of UC faculty and other teachers and researchers, the freedom of scholarly inquiry of UC students, and the First Amendment rights of the entire UC community. Content on University of California Zoom accounts should be censored only if hosting it would cause Zoom to violate the law. Any other content limitations should be left to the University.

Second, identify other platforms that UC faculty, students, and staff can use as an alternative if censorship by Zoom occurs or is feared. Provost Brown’s recent letter encourages faculty to “contact their local Information Technology Department for recommendations as to other vendors.” But the threat of censorship is one that affects the entire University. It results from university-wide contracting. A university-wide solution is therefore appropriate. UC should make available backup platforms that can be used for courses and other events while UC’s negotiations with Zoom proceed (or, certainly, if its negotiations fail).

Third, since Zoom is not the only private platform or service the University uses to carry out its core activities, UC should identify other contracts that might raise similar threats to academic freedom and free speech. A renegotiated contract with Zoom could provide a model for negotiations with those contractors, as well as for other universities grappling with similar concerns.

The University of California has an opportunity to be a leader on this important issue. UCAF asks that Academic Council endorse this statement of concern and proposed responses. Thank you for your consideration.

Sincerely,

Brian Soucek, Chair
UCAF

[1] See, e.g., “Zoom Blocks Activist in U.S. After China Objects to Tiananmen Vigil,” N.Y. Times (June 11, 2020), https://ift.tt/37j6cLI; Letter from CUCFA to UC President Drake (Sept. 24, 2020), https://ift.tt/2MTpod5; Letter from AAUP to NYU President Hamilton (Oct. 28, 2020), https://ift.tt/2YIjEp2. But see “US Charges Ex-Zoom Employee with Shutting Down Tiananmen Square Events,” BBC.com (Dec. 19, 2020), https://ift.tt/2KJ00Wo.

[2] https://zoom.us/terms/

[3] https://ift.tt/3oNkxHC

[4] https://ift.tt/2MWB3rg

Disclosure: I’m a member of the UCAF (in my capacity as the Chair this year of the UCLA Academic Senate’s Committee on Academic Freedom), and I generally agree with this letter, but I didn’t take the laboring oar on it, and thus shouldn’t get any of the credit.

from Latest – Reason.com https://ift.tt/2MzBFU6
via IFTTT

Mandated Pandemic Hazard Pay for Grocery Store Workers Prompts Store Closures, Lawsuits

reason-grocery

California’s grocers are up in arms about city-level hazard pay laws that require them to compensate employees with “hero pay” wage premiums during the pandemic.

The California Grocers Association (CGA) has filed several suits in federal court to overturn these laws, while individual companies have announced that the new costs are forcing them to close stores.

On Wednesday, the CGA filed a lawsuit challenging the City of Oakland’s ordinance. The law, which passed on Tuesday and goes into effect immediately, requires some grocers to pay their workers a $5 hourly premium on top of whatever wage they were making before.

The law applies to employees at any “large grocery store,” defined as any store with at least 15,000 square feet that “sells primarily household foodstuffs for offsite consumption.” The law only applies to stores operated by companies with 500 or more employees nationwide.

Employers will be on the hook for that hazard pay until Oakland qualifies for the “yellow” tier in California’s Blueprint for a Safer Economy reopening scheme, which places counties in one of four color-coded tiers based on the severity of the pandemic. Yellow, the least restrictive tier, is supposed to indicate minimal spread of COVID-19.

The CGA’s complaint makes two arguments against Oakland’s hazard pay law. One is that it’s preempted by the National Labor Relations Act. Another is that the law violates the Fourteenth Amendment’s Equal Protection Clause by requiring only some grocery stores to pay the extra $5 an hour.

This, the suit says, has nothing to do with the city’s stated goals of protecting workers and everything to do with rewarding a connected interest group of employees represented by the United Commercial and Food Workers (UFCW).

“By design, the Ordinance picks winners and losers. It singles out large grocery companies with unionized workforces (i.e., UCFW 5’s members) without providing any reasonable justification for the exclusion of other employers or frontline retail workers,” reads the complaint. “The City’s stated objectives are merely an attempt to impose a public policy rationale on interest-group driven legislation for labor unions.”

The CGA has raised near-identical claims in two other lawsuits. One was filed against the city of Long Beach last month. The other, launched yesterday, targets the city of Montebello. Both jurisdictions are requiring grocery stores to pay workers an extra $4 per hour in hazard pay.

On Monday, the grocery store chain Kroger’s announced that it would be closing two grocery stores it operates in Long Beach, a Ralph’s and a Food 4 Less, because of the increased costs imposed by the city’s hazard pay ordinance.

A spokesperson for the company told the Los Angeles Times it had already spent $1.3 billion throughout the pandemic on bonus pay to workers and on safety measures to protect employees. From March through May of last year, the company provided a $2-an-hour pay bump, which was replaced by one-time bonus payments later that year.

Those store closures haven’t dissuaded cities from moving ahead with their own hazard pay laws. Proponents argue any store closures are just a scare tactic.

“They absolutely can afford this increase,” Los Angeles Councilman Paul Koretz said at the Tuesday city council meeting where a $5 hazard pay increase for grocery store workers was approved, reports the Times. “They absolutely should be paying this increase. And if they shut down stores, it’s just out of spite.”

It’s a strange theory that grocery stores are greedy enough not to want to pay out hazard pay, but not so greedy that they don’t mind shutting down profitable stores out of “spite.”

The more likely possibility is that companies are shutting down stores that can’t absorb a sudden, massive increase in their labor costs.

Grocery store workers are obviously operating under increased risks during the pandemic, and there’s an understandable desire to want to reward them for that extra assumption of risk.

But COVID-19 doesn’t eliminate the trade-offs and unintended consequences that come with top-down wage controls.

Some grocery store workers will see pay increases under these policies, while others will lose their jobs or have their hours cut. Consumers, many of whom are themselves struggling with the pandemic’s economic fallout, will absorb these pay increases through higher prices or avoid them by shopping at stores that aren’t subject to the mandates.

Even in a pandemic, central planning is hard.

from Latest – Reason.com https://ift.tt/2MWeK5j
via IFTTT

Federal Court Confirms That Shackling an Inmate During Exercise Is Cruel and Unusual Punishment

dreamstime_xxl_118175144

A federal court has ruled yet again that shackling an inmate in full restraints while exercising qualifies as cruel and unusual punishment, and that a warden who allegedly flouted that rule is not protected by qualified immunity.

The U.S. Court of Appeals for the Second Circuit confirmed last week that Angel Quiros, formerly the warden at the Northern Correctional Institute in Somers, Connecticut, violated M.A. Edwards’s Eighth Amendment rights when prison officials placed Edwards in restraints during his exercise time over a six-month period. Specifically, Edwards had his “hands cuffed,” with “leg irons on [his] ankles” and “a chain tether securing those two sets of restraints to one another.”

In 2014, a lower court gave Quiros qualified immunity, the legal doctrine that protects government officials from certain sorts of lawsuits if the alleged misbehavior was not “clearly established” in prior case law. In practical terms, that means courts often acknowledge that a civil servant infringed on a defendant’s rights but—without a court precedent—still award that civil servant protection from accountability. (See also: the time the U.S. Court of Appeals for the Ninth Circuit gave qualified immunity to two police officers who stole $225,000 during a search warrant, because no court precedent said that stealing under those specific circumstances was definitively wrong.)

This case initially followed that pattern. The United States District Court for the District of Connecticut ruled that, while every inmate has the right “to recreate free from restraints,” this was not a clearly established right. 

The Second Circuit countermanded that on appeal, allowing the case to go to a jury, which sided with Edwards in 2018. The district court then turned around and vacated that decision—a fairly uncommon move—maintaining that Quiros only had enough information to know of the violation for a short period of time, as opposed to the entire six months.

On appeal, Quiros raised that same concern, which the court rejected—citing Quiros’s own testimony. The warden also challenged the idea that an Eighth Amendment violation occurred at all, arguing that “the plaintiff was not deprived of the ability to attend outdoor recreation and to get fresh air and walk.” The Second Circuit wouldn’t have it.

“We have described the right at issue as that to ‘some opportunity to exercise,'” wrote Judge John M Walker, Jr., “and we cannot determine as a matter of law that the jury erred in finding that Edwards’s limited ability to shuffle around in full restraints while breathing fresh air constituted meaningful exercise.”

Quiros also argued that safety justified the restraints, thus undermining any constitutional claims. Again, no luck: “The jury was entitled to disagree,” wrote Walker. “The safety justification was undermined by testimony from Edwards, credited by the jury, that corrections officers would not always employ the most restrictive shackling method of full restraints when they were moving him out of his cell and around the facility.”

Bringing things full circle, Quiros again claimed qualified immunity—the same defense the Second Circuit rejected in 2015, which they again rejected in 2021. 

The denial of qualified immunity does not mean a defendant has been found guilty; it merely gives the plaintiff the right to sue. In other words, an official awarded the legal protection is thus spared from facing the possibility of accountability, not accountability itself. The latter comes in the form of a jury’s decision—something that, in this case, already came down three years prior. 

“The jury reasonably determined, upon sufficient evidence, that Quiros knowingly violated Edwards’s clearly established right to meaningful exercise under the circumstances and lacked a sufficient justification for doing so,” notes Walker. “We will not disturb the jury’s finding that Quiros was not entitled to qualified immunity.”

from Latest – Reason.com https://ift.tt/3axTwCW
via IFTTT

Dumping the Trump travel ban was a blunder

My latest op-ed, on Lawfare, argues that the Biden administration’s first big counterterrorism blunder was getting rid of the Trump travel ban:

How, you might ask, could undoing such an unpopular and racist order possibly be a mistake? The answer is that, by the time of its revocation, the Trump travel ban had become something quite different from its starting point. Under pressure from the courts and the press, the leadership of the Department of Homeland Security (DHS) had reshaped Trump’s order into a calibrated security tool that depended not at all on the majority religion of the countries it affected.

One of DHS’s great successes since 9/11 has been finding a way to let huge numbers of people into the country each day without giving up on security. The key is knowing more about each traveler, so that the government can make good risk-based decisions about who to admit. But that data-driven strategy only works if the U.S. has a minimum of cooperation from other governments. If the traveler’s home government makes it easy to obtain a fake identity, or if it refuses to tell the U.S. about travelers with criminal or terrorist ties, a border security system that depends on traveler data will fail.

The original travel ban executive orders, issued in January and March of 2017, weren’t grounded directly in the need for such cooperation. Instead, to determine which countries were subject to the ban, the orders simply borrowed their list from past congressional and executive designations. But these orders did contemplate that the temporary ban would be followed by an interagency effort to determine the kind of information needed to admit future travelers. DHS took this as a mandate to put the ban on a new footing—one that would support its data-driven, individualized assessment of travelers by encouraging deeper cooperation from other governments.

Many commentators have jeered at the idea of Republicans joining the Trump administration in the hope of contributing to government by sanding the rough edges off Trump’s instincts and turning them into good policy. But this is such a case. DHS officials were able to transform Trump’s off-the-cuff rhetoric into a defensible and important contribution to U.S. border security.

By September 2017, DHS’s work was adopted in a presidential proclamation. It did not judge a handful of countries by the ethnicity or religion of their citizens; nor did it borrow its list from other legal contexts. Instead, the department had ranked 200 countries by how much help they give the U.S. in deciding who can safely be admitted to this country.

It is an unfortunate fact that some governments don’t issue reliable identity documents, or don’t bother to tell Interpol when one of their citizens’ passports is stolen, even though such a passport can be used for a long time outside the country of issuance. Other governments are reluctant to share the criminal or terrorist records of their citizens, and a few are so hostile that the U.S. can’t count on them for any help in spotting terrorists.

The U.S. has a pretty good idea which countries are doing a good job on these and other measures of cooperation. In fact, in its initial review, DHS found almost 50 countries whose identity systems or information sharing with the U.S. needed improvement. It told them all that their citizens could be caught in an expanded and revamped travel ban.

No one wanted to end up on the new list. DHS was able to open talks, not just with the least helpful governments but with any that didn’t meet the highest standards. The result was heartening. Nearly 30 countries provided document exemplars that could be used to spot fake IDs. According to testimony by Assistant Secretary Elizabeth Neumann, three countries agreed to issue more secure passports. Nearly a dozen agreed to share more information about known or suspected terrorists.

I have negotiated such information sharing agreements with other countries on behalf of DHS, and getting even one new agreement is an accomplishment. DHS’s achievement here is impressive.

https://ift.tt/3awyzbv

from Latest – Reason.com https://ift.tt/2Li5JCW
via IFTTT

Thanks to Colorado’s Reforms, Cops Who Forced Children To Lie on the Pavement at Gunpoint Might Be Held Accountable

Gilliam-stop-8-2-20

In Aurora, Colorado, police officers ordered a terrified 6-year-old girl out of a car at gunpoint and then tried to handcuff her, only to find that they couldn’t because the girl’s wrists were too small. You might think the cops would have second thoughts about the choices that led to such a situation. But according to Police Chief Vanessa Wilson, everything the officers did that day—when they forced the crying girl to lie on the pavement along with her mother, her 17-year-old aunt, and two teenaged cousins even though none of them had done anything wrong and none of them posed any sort of threat—was by the book.

In a lawsuit filed last week, the little girl’s mother, Brittney Gilliam, argues that Wilson’s attitude exemplifies her tolerance of Fourth Amendment violations, racial profiling, and excessive force. Gilliam’s case, which names Wilson, the city, and five officers as defendants, will test the value of a groundbreaking Colorado law that allows people to sue cops who violate rights guaranteed by the state constitution. That 2020 law, which legislators passed along with other reforms in response to the death of George Floyd, does not allow officers to claim “qualified immunity,” a court-invented doctrine that shields police from federal civil rights claims unless their alleged misconduct violated “clearly established” law.

The case, which attracted international attention last year because a bystander video of the August 2 incident went viral, began when Gilliam, a 29-year-old food service worker at the Denver County Jail, set out with her daughter (identified as “L.T.” in the complaint), Gilliam’s 17-year-old sister (“E.G.”), and two nieces (12-year-old “N.J.” and 14-year-old “T.T.”) on a “Sunday funday” outing, a welcome relief from “months of being cooped up due to COVID-19.” Since businesses closed by pandemic-related restrictions were reopening, they planned to have their nails done and get ice cream afterward. But when they arrived at the nail salon in Gilliam’s SUV, they found it was closed. Gilliam and the girls were sitting in the parked car as she used her smartphone to find an open salon when a police car pulled up behind them and two officers, Darian Dasko and Madisen Moen, got out with their guns drawn.

Pointing their guns at Gilliam’s car, Dasko and Moen demanded that she and the girls put their hands out the windows, which they did. Gilliam, alarmed and perplexed by this sudden show of force, asked what was going on. “I will tell you once you get out,” Dasko said.

It turned out that the officers had mistaken Gilliam for a car thief because a license plate scanner erroneously identified her vehicle as stolen. Although the numbers matched, the stolen vehicle was a motorcycle registered in Montana, not an SUV registered in Colorado. Gilliam repeatedly offered to show the cops her car registration, which would have shown she was the legal owner, but they were not interested.

Dasko and Moen forced Gilliam and her four minor passengers out of the car at gunpoint and ordered them to lie on their stomachs with their arms stretched in front of them and their palms against the pavement. Two more cruisers carrying several more officers arrived. The officers handcuffed Gilliam, N.J., and E.G. They tried unsuccessfully to handcuff L.T., the little girl in the pink tiara who can be seen in the picture above. Since her wrists were too small, they kept her on the pavement, along with T.T. The officers patted down Gilliam and all of the girls, because you can never be too safe.

During this ordeal, L.T. was sobbing and asking for her mother while clinging to her cousin’s hand. A crowd of about 15 bystanders gathered, amazed and appalled by the officers’ behavior. One of them, who captured the scene on her cellphone, exclaimed, “They have guns drawn on kids!”

More squad cars arrived, the complaint says, and “as many as fourteen” officers were ultimately present. The cops eventually let L.T. and T.T. sit up, but they kept them on the pavement for about 15 minutes. N.J. and E.G. were kept in handcuffs for about the same amount of time. Gilliam was similarly restrained in the back of a patrol car for more than 10 minutes. She was detained for more than two hours, until several sergeants arrived.

Since that traumatic experience, the lawsuit says, “T.T. cannot get the terrified screams of her cousins out of her mind. The girls struggle to sleep and eat. All are in therapy to attempt to help them deal with what happened that day.” The complaint adds that “all of the Plaintiffs now fear police officers, and the minor Plaintiffs would be afraid to contact the police in the future, even if they were in danger and in need of assistance.”

The sergeants who arrived at the scene the day of the encounter explained that the officers had followed official policy throughout the incident. Wilson concurred in a statement she issued after local prosecutors declined to bring charges against Dasko and Moen.

“Despite the disturbing fact that terrified children were ordered out of a vehicle at
gunpoint and placed face-down on the ground, our conclusion is that there is not evidence beyond a reasonable doubt that the APD [Aurora Police Department] officers involved unlawfully, intentionally, knowingly, or negligently violated any Colorado criminal law,” Chief Deputy District Attorney Clinton McKinzie said in a January 8 letter to Wilson. “What happened to the innocent occupants is unacceptable and preventable, but that alone is an insufficient basis to affix criminal culpability to the two officers involved in the initial contact.”

McKinzie’s boss, District Attorney George Brauchler, nevertheless urged Wilson to reconsider the department’s policies and practices. “The errors in information-sharing, training, and procedure that led to these innocent people being subjected to this police encounter must be investigated further and prevented from happening again,” Brauchler said. “These kinds of things should not be taking place on the streets in our community. I’m still of that mind. But my conclusion doesn’t make it criminal. We just don’t have enough to prosecute them for a crime.”

Wilson apologized to the family and offered to cover the children’s psychotherapy bills. “This was a horrible mistake and one that I hope we can at least correct for the kids,” she said last month. “We must allow our officers to have discretion and to deviate from this process when different scenarios present themselves. I have already directed my team to look at new practices and training.”

The implication, of course, is that the officers did nothing wrong under the policies in force at the time. That fact, Gilliam’s lawsuit argues, reflects a broader pattern of policies, customs, and practices that invite police abuse, including unconstitutional searches, illegal detention, trumped-up arrests, and excessive force. “APD officers have a history of committing police brutality, especially against Black victims, and racially profiling Black individuals,” says the complaint, which describes about 30 examples, including the 2019 death of Elijah McClain. Several of those cases led to monetary settlements.

From 2013 through 2019, the complaint notes, “APD ranked 8th out of the 100 largest cities in the United States for most police killings per capita.” The lawsuit also cites statistics suggesting that black people are disproportionately likely to be mistreated by Aurora police.

The fact that Brauchler declined to prosecute the officers who detained Gilliam and the four girls does not mean they cannot be held civilly liable for the incident. The lawsuit argues that the cops violated Article II, Section 7 of the Colorado Constitution—which, like the Fourth Amendment, prohibits “unreasonable searches and seizures”—by detaining and searching the family without probable cause or reasonable suspicion. It says they violated the same provision by using excessive force. The complaint also argues that the cops violated the plaintiffs’ right to equal protection of the laws because they treated Gilliam and the girls differently than they would have treated similarly situated white citizens.

Under the reforms that the Colorado legislature enacted last summer, the officers are not protected by qualified immunity, meaning that Gilliam need not prove the rights they violated were “clearly established” at the time. In practice, that requirement means plaintiffs cannot bring federal civil rights claims unless they can locate precedents with nearly identical facts. The upshot is that police officers can get away with outrageous conduct as long as they find novel ways to abuse people.

Even if Gilliam wins damages, however, the officers she sued probably will not have to pay a dime. To address the concern that personal liability would have a chilling effect on law enforcement, legislators included a provision that requires municipalities to indemnify cops in such cases unless “the peace officer’s employer determines that the officer did not act on a good faith and reasonable belief that the action was lawful.” If local officials make that determination, officers are personally liable for up to $25,000 each. But that seems unlikely, since Wilson already has determined that her officers terrorized Gilliam and the three girls in accordance with her department’s policies.

from Latest – Reason.com https://ift.tt/3awv9Wd
via IFTTT

Upcoming Virtual Speaking Engagements [Updated and Reposted]

Zoom

NOTE: I have reposted this, because a number of events have recently been added.

While I hope that vaccination changes things over the next few months, for now only virtual  speaking engagements are possible. Last semester, I gave virtual talks “at” a variety of institutions, in the United States and abroad, including Harvard, Yale, Cornell, the University of Virginia, Columbia, and others. If nothing else, I am much more comfortable speaking on Zoom and other similar systems than I was before!

Below is my list of online speaking for the spring semester. I am open for business for additional events.if you would like to invite me to give a “virtual” talk about any of my areas of expertise (described in more detail at my website here) at your own university, think thank, or other similar organization, please feel free to contact me.

Unless otherwise noted, they are open to the public, not just students and faculty at the relevant institution. All time are US eastern time (again, unless otherwise noted).

Many of these events are about my recent book Free to Move: Foot Voting, Migration and Political Freedom. But I am happy to talk about other issues within my expertise as well. The latest and most timely addition may be the second impeachment of Donald Trump (my writings on the subject were cited in the House Judiciary Committee impeachment report).

I will update this post regularly, with new speaking engagements, and additional information about existing ones.

January 29, Osher Lifelong Learning Institute, University of California, San Diego, 10-12 AM Pacific time/1-3 PM eastern. “Free to Move: Foot Voting, Migration, and Political Freedom.” More detailed description and registration information available here. My understanding is that this event is open only to paying UCSD Osher Institute participants.

February 4, 12-1:15 PM, Harvard Law School: “Free to Move: Foot Voting, Migration, and Political Freedom” (Sponsored by the Harvard Crimmigration Clinic). Free registration available here.

February 8, 12-1 PM, Committee for Justice: “Court-Packing, Term Limits, and Judicial Reform,” panel on “Supreme Court Packing and Reforms: Proposals & Prospects.” The other panelists are Prof. Joshua Braver (Univ. of Wisconsin Law School), and Tom Jipping (Heritage Foundation). Free registration available here.

February 9, 12:30-145 PM (approximate), Indiana University, McKinney School of Law: “The Second Impeachment of Donald Trump. Sponsored by the Indiana University Federalist Society.

February 11 and 18, 8-9 PM, Speakeasy: “How to Get Your Academic Book Published.” This is a two-part series intended for academics, policy analysts and others who want to learn the nuts and bolts of how to write a book and get it published with an academic publisher. I will answer questions and give individualized advice to participants in the second half of each sessio. Sign-up information available here. There is a $40 fee for both talks combined.

February 23, 3-4:30 PM, NYU Law School: “Free to Move: Foot Voting, Migration, and Political Freedom” (sponsored by the Classical Liberal Institute). With commentary by NYU law professors Richard Epstein (one of the world’s leading experts on property rights and libertarian legal theory) and Rick Hills (leading federalism scholar). Free registration here.

March 4, 7:30-8:45 PM, CSI/CUNY: “Free to Move: Foot Voting, Migration, and Political Freedom” (sponsored by the Legal Studies Institute annual lecture series—rescheduled from 2020). Registration information and link TBA.

from Latest – Reason.com https://ift.tt/3pLcWui
via IFTTT

SCOTUS To Decide if Cops Need More ‘Elbow Room’ To Conduct Certain Warrantless Home Searches

ddpphotos423684

In Cady v. Dombrowski (1973), the U.S. Supreme Court introduced a legal doctrine that has come to be known as the “community caretaking exception” to the Fourth Amendment. The case centered on a warrantless police search of a car that had been disabled and towed after an apparent drunk driving accident. The police “frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions,” the Court said. And that sort of “caretaking ‘search,'” the ruling continued, “conducted…of a vehicle that was neither in the custody nor on the premises of its owner…was not unreasonable solely because a warrant had not been obtained.”

In the coming months, the Supreme Court will hear arguments in a new case that asks whether that exception to the Fourth Amendment’s normal search warrant requirement should be extended to cover warrantless police searches of homes and residences.

The case is Caniglia v. Strom. It originated in 2015 when Cranston, Rhode Island, police paid a “well call” on 68-year-old Edward Caniglia. His wife had been unable to reach him after they had a fight and she was worried that he might be suicidal. So she called the authorities. The police took Caniglia to the hospital, where he was examined by a nurse and a social worker and discharged that same day. Meanwhile, the police entered his home without a warrant while he was gone and seized his two handguns. The present case centers on Caniglia’s claim that this warrantless police action violated his Fourth Amendment rights.

Caniglia lost before the U.S. Court of Appeals for the 1st Circuit last year when that court upheld the officers’ actions under the community caretaking exception to the Fourth Amendment. The circuit court did acknowledge that its decision “extended the community caretaking exception beyond the motor vehicle context.” It justified that extension on the grounds that doing otherwise would place too many restrictions on the cops. The community caretaking doctrine, the 1st Circuit declared, “is designed to give police elbow room to take appropriate action.”

Caniglia now wants the Supreme Court to overrule that lower court decision. Extending the community caretaking doctrine “into the home—the most protected of all private spaces—would create a loophole in the Fourth Amendment’s warrant requirement wide enough to drive a truck through,” Caniglia and his lawyers told the justices. “So long as an officer reasonably claims to be taking care of the community, he can disregard the Fourth Amendment’s protections.”

Oral arguments in Caniglia v. Strom have not yet been scheduled.

from Latest – Reason.com https://ift.tt/3jj4iRx
via IFTTT

Joe Biden Wants His Stimulus To Help ‘People Who are Hurting,’ Like Families Making $120,000 a Year

cnpphotos203365

In pressing his case for a deficit-funded $1.9 trillion legislative response to the COVID-19 pandemic and its effects on the economy, President Joe Biden has consistently argued for bigness as a virtue. After a meeting with a group of Senate Democrats yesterday he tweeted: “One thing is clear: we all agree that now is the time for big, bold action to change the course of the pandemic and begin economic recovery.” The real risk, he said, “isn’t that we do too much—it’s that we don’t do enough.”

Biden all but dismissed a counterproposal by a group of Senate Republicans, who presented him with a plan to scale back the package to a little more than $600 billion—still fairly large by any historical comparison, especially following the roughly $4 trillion worth of COVID relief passed last year. It was simply “not in the cards.” 

Biden isn’t totally averse to compromise, he told House Democrats on a call. But, he said, “We have to take care of the people who are hurting.”

Whatever it is you think of when you hear the words “people who are hurting,” I suspect it does not include two-earner families with stable jobs making $120,000 a year. Yet that’s who Biden’s plan would help. 

That is not just speculation or extrapolation based on an outline of his plan. That is the explicit position staked out for Biden by his press secretary, Jen Psaki, who said the following at a press briefing this week. 

There are some, you know, bottom lines I think the President has—which he has conveyed in the meeting last night and reiterated to us this morning—which is, you know, to put it simply or accessibly for people: You know, he believes a married couple—let’s say they’re in Scranton, just for the sake of argument; one is working as a nurse, the other as a teacher—making $120,000 a year should get a check. That’s in his plan.  In the plan presented by Republicans, they would not get a check. 

And his view is that at this point in our country, when one in seven American families don’t have enough food to eat, we need to make sure people get the relief they need and are not left behind. 

The juxtaposition between families who do not have enough food as a category of people that Biden wants his stimulus to help and a two-earner family with a solid six-figure income is more than a little jarring. It is certainly possible to be in a precarious financial position, to feel financially strapped and stretched, with six figures in earnings, and COVID-19 has exacerbated some challenges for families, particularly where schooling is concerned. But Psaki’s hypothetical $120,000 family is not struggling to afford enough food. 

Indeed, families with incomes like Psaki describes have, by some measures, done relatively well during the pandemic. Personal savings rates have hit record highs, and job losses have largely been concentrated in a few industries, and a few categories of workers, most of whom ordinarily make quite a bit less than Psaki’s imaginary stimulus beneficiaries. 

As the U.S. Chamber of Commerce recently pointed out in a letter to Biden, Census Bureau data show that “a majority of households with less than $50,000 in income have experienced a loss of employment income, a majority of household with more than $50,000 in income–including those between $50,000 and $150,000–have not experienced any loss in earned income.” 

The COVID-19 recession, in other words, has not hit everyone equally. As an analysis of Biden’s relief package by the University of Pennsylvania team behind the Penn Wharton Budget Model (PWBM) notes, “Unemployment has been disproportionately concentrated among lower wage and young workers in specific sectors, e.g., retail and leisure and hospitality.”

Much of this is a result of public reticence in the face of a deadly novel virus. But it’s not surprising to see that the industries facing the biggest challenges are also those that have been most affected by mandatory closures and other state restrictions on commerce. Meanwhile, the report notes, most other sectors of the economy “now appear to be operating at near pre-recession levels.” 

This is a hospitality recession that has had devastating effects on a class of relatively young, relatively low-income service workers—but not on two-income families currently earning $120,000 a year.

Even some of Biden’s own economic advisers are reportedly uncomfortable with the breadth and expansiveness of his plan, particularly when it comes to the distribution of checks. “At least two of the president’s top economic advisers, Heather Boushey and David Kamin, have privately expressed reservations about the size of the checks and at what level they would begin to phase out for higher-income people,” Bloomberg News reported earlier this week. 

Meanwhile, Biden’s plan to go big would come with long-term macroeconomic costs. The Congressional Budget Office often notes that, all else being equal, larger debt burdens drag down economic growth. The PWBM analysis published this week attempted to put a price tag on the long-term cost of Biden’s $1.9 trillion plan: While it would increase gross domestic product (GDP) by 0.6 percent in 2021, the model projects that “the additional public debt resulting from the Biden plan would decrease GDP by 0.2 percent in 2022 and 0.3 percent in 2040.” 

Yes, these projections are based on economic models, and as with all models, there are limitations and caveats. But this sort of conclusion is broadly in line with what macroeconomists have long thought about the long-term effects of persistently high national debt levels. 

Biden has said he might be willing to negotiate the household income thresholds for the checks he plans to send out, though he is not willing to budge on the amount of those checks. But the fact that this is where he started shows the flaw in Democrats’ insistence on going big for the sake of bigness.  

Biden is portraying his relief package as a necessary response to an extreme health and economic crisis. But his plan to go big is really a plan to fail to target the actual problem at hand. And in the years to come, it would probably make the nation’s economy somewhat worse. 

from Latest – Reason.com https://ift.tt/2NYlqAc
via IFTTT

University Decisions About Funding Student Groups Can’t Rely on “Unbridled Discretion”

From Tuesday’s decision by in Viewpoint Neutrality Now! v. Regents of the Univ. of Minn.:

Each semester, the University collects a mandatory student-services fee of approximately $443.00 from every student enrolled in six or more credits. The fee “funds non-instructional programs and activities; supplements the academic curriculum; and is an integral part of the University’s educational experience.” The fee is divided into three parts: a $411.50 Student Life, Health, and Wellbeing Fee; an $18.91 Student Activity Fee; and a $12.59 Media Fee. A total of about $36,000,000 is collected each year.

Under the Supreme Court’s unanimous decision in Board of Regents v. Southworth (2000), such fees are constitutional if the money spent on student speech is distributed in a viewpoint-neutral way, because such funding for student group speech (as opposed to the speech of the university or of agents of the university) is a “limited public form.” Judge Schiltz also concluded that the money can’t be spent in a way that gives the decisionmaker “unbridled discretion,” since such discretion can end up cloaking viewpoint discrimination. (He added that the analysis should apply equally to student groups funded from tuition dollars and not just student services fees.) And here is how he applied these principles:

[1.] The preferential treatment for media groups (“media groups may apply for unlimited operational funding, whereas other RSOs [Registered Student Organizations] may apply for no more than $25,000 in annual operational funding”) is constitutional because it’s viewpoint-neutral:

Plaintiffs do not challenge the adequacy of the safeguards that apply to the allocation of funds among eligible media groups. The media-groups handbook includes a prohibition on viewpoint discrimination; numerous specific viewpoint-neutral standards for evaluating applications for funding; deadlines for the application and decision-making processes; public presentations and deliberations; and a right to appeal. These safeguards are sufficient to ensure that the allocation of funds among eligible media groups is viewpoint neutral.

Plaintiffs also do not allege that any viewpoint discrimination has in fact occurred in connection with the allocation of funds among eligible media groups. To the contrary, the complaint acknowledges that both liberal and conservative media groups have received media-group funding.

Instead, plaintiffs argue that viewpoint discrimination occurred when the University established this public forum limited to media groups. According to plaintiffs, the University thereby engaged in viewpoint discrimination against RSOs that are not media groups. In other words, plaintiffs argue that the First Amendment bars the University from creating a public forum that is limited to media groups.

The Court disagrees. The University can limit access to a limited public forum so long as that limitation is viewpoint neutral. Here, access to the forum is limited to media groups, a restriction that has nothing to do with viewpoint. Plaintiffs have not put forth a coherent theory for how discriminating in favor of media groups (no matter their viewpoint) and against non-media groups (no matter their viewpoint) could possibly be considered discrimination on the basis of viewpoint.

Nonetheless,

[T]he process used by the University for determining who may participate in that forum—i.e., who may apply for media-group funding—is unconstitutional because it vests unbridled discretion in the VPSA/DoS [Vice Provost for Student Affairs/Dean of Students] ….

Like a school administrator who decides which clubs can use classroom space, the VPSA/DoS acts as a gatekeeper to a limited public forum by deciding which groups may have access to the forum (here, to media-group funding). And although a governmental entity may restrict access to a limited public forum—after all, that’s what makes a public forum a limited public forum—those restrictions must be viewpoint neutral and reasonable and, most importantly for present purposes, cabin the discretion of the decision-maker. Here, the VPSA/DoS’s discretion is not limited in any meaningful way, as the University’s process lacks most of the basic safeguards identified in the unbridled-discretion cases:

First, the VPSA/DoS has “exclusive authority” to determine whether a group may apply for media-group funding. The decision is hers and hers alone.

Second, the handbook does not specify on what basis the VPSA/DoS must make her decision; it does not even require that her decision be viewpoint neutral….

Third, there is no deadline for the VPSA/DoS’s decision. She can sit on a request for permission to apply for funding indefinitely.

Fourth, the VPSA/DoS is not required to participate in any kind of public deliberations, explain the reasons for her decision, or publish her decision. She can simply say “no” to a group that wants to apply for funding without explaining her reasons to the group or anyone else.

Finally, the VPSA/DoS’s decision is final. A group that is denied permission to apply for media-group funding has no right to appeal….

[2.] [T]he allocation of lounges in Coffman to the cultural centers” may also be unconstitutional, because it involves unbridled discretion:

As noted, the University admits that, consistent with its mission to promote diversity, it restricted access to the limited public forum that is Coffman by allocating space only to “identity-based” groups. According to the University, however, this did not represent viewpoint discrimination. One lounge is allocated to the Black Student Union, but Black students have different viewpoints. Another lounge is allocated to the Feminist Student Activist Collective, but feminist students have different viewpoints. And so on. Thus, says the University, it did not discriminate among viewpoints in allowing only identity-based groups to have access to the limited public forum.

Plaintiffs disagree. According to plaintiffs, limiting the public forum to only identity-based groups is itself a form of viewpoint discrimination, because the one thing that every identity-based group has in common is the viewpoint that identity-based groups are a good thing and should be privileged by the University. This is a “viewpoint,” say plaintiffs—and it is a viewpoint not shared by those who believe that it is illegal, immoral, or divisive to encourage identity-based groups or give them preferential treatment. Limiting space in Coffman only to groups that share the University’s viewpoint that identity-based student groups should be promoted—and completely excluding groups that do not share that viewpoint—is viewpoint discrimination, according to plaintiffs.

The Court finds this to be a difficult issue. The Court need not decide the issue, however, because plaintiffs have pleaded facts that—if true—establish that the University violated Southworth in a different way when it decided who would have access to the limited public forum that is Coffman.

According to plaintiffs, the process of allocating space in Coffman vested unbridled discretion in the decision-maker. In other words, plaintiffs argue that even if discriminating in favor of identity-based groups over other groups is not viewpoint discrimination, the allocation was nevertheless unconstitutional. There was no application process; the decision-maker (whomever that was) was not forbidden from discriminating on the basis of viewpoint; no standards of any kind guided the decision-maker; no deadlines applied to the decision-making process; the decision-making was not done publicly; and there was no right to appeal.

If plaintiffs are correct—and, at this stage of the litigation [the decision on the University’s motion to dismiss], the Court must assume that they are—then the discretion of the decision-maker who allocated the space in Coffman was about as “unbridled” as discretion gets. None of the criteria on which courts have insisted were in place.

{[T]he University argues that its allocation of the lounges is the University’s own speech and thus exempt from First Amendment scrutiny by virtue of the government-speech doctrine…. [But t]he designation of the lounges in this case is materially indistinguishable from the designation of the classrooms in Good News Club and Lamb’s Chapel. The schools in Lamb’s Chapel and Good News Club opened their classrooms to after-school meetings and decided which clubs could use the classrooms, just as the University opened Coffman to student groups and decided which groups could use the lounges. In this case—as in Good News Club and Lamb’s Chapel—the purpose of opening the spaces was to facilitate private expression, not to engage in governmental speech. And thus in this case—as in Good News Club and Lamb’s Chapel—the allocation of the spaces must be viewpoint neutral. Indeed, the University concedes that it has “created a limited public forum on the second floor of the Union by setting aside space for identity-based cultural centers.” …}

[3.] On the other hand, “the University’s website promotes the cultural centers but no other RSOs” is constitutional:

[B]ecause what the University says on its own website is government speech—and because the Southworth framework applies only when the government promotes private speech—the University does not have to act with viewpoint neutrality in deciding what to say on its website.

[4.] The University’s denial of funding “to all partisan political organizations” is viewpoint-neutral (though content-based) and thus permissible when it comes to a limited public forum such as this.

[5.] Plaintiffs’ argument “that the University violates the First Amendment because it does not provide a way to appeal its policy decisions, such as the decision to create the limited public forums that are the subject of this lawsuit” “is frivolous”:

Like every other unit of federal, state, and local government, the University makes thousands of policy decisions—e.g., decisions to raise or lower tuition, to expand or shrink the size of the English Department, to require or not require applicants to take standardized tests, or to create or not create a limited public forum. Nothing in the Constitution requires that the government must provide a way to “appeal” every policy decision that it makes—including a decision to establish a limited public forum.

from Latest – Reason.com https://ift.tt/3cOw8n8
via IFTTT

Florida Gov. Ron DeSantis Wants $100,000 Fines for Social Media Companies That Deplatform Politicians

DeSantis_1161x653

On Tuesday, Florida’s Republican Gov. Ron DeSantis announced in a press conference pending legislation that, if passed, would punish tech companies like Facebook and Twitter for deplatforming candidates for political office in his state. Companies would face a fine of up to $100,000 per day until restoring a candidate’s access to their platforms

There’s more to DeSantis’ plan, and the bill has not yet been drafted, so the details aren’t clear. What is clear, though, is that DeSantis is among those conservative politicians who want to use the power of the government to require that social media carry their messages.

“We’ve seen the power of their censorship over individuals and organizations, including what I believe is clear viewpoint discrimination,” DeSantis said at the press conference.

It’s very tempting to look at DeSantis’ proposal and immediately dismiss it as unconstitutional, a violation of the free speech rights of the platforms themselves. They are private companies. Isn’t requiring companies to carry political messages that they might find offensive essentially equivalent to mandating speech? Isn’t DeSantis ordering tech companies to “bake the cake“? The Supreme Court has any number of precedents that forbid the government from forcing private businesses to distribute messages they find offensive. Florida couldn’t possibly demand that Facebook, for example, host messages from somebody who was openly a violent nationalist just because that person is running for office, could it?

Actually, it’s complicated, explains Eugene Volokh, professor of law at UCLA, co-founder of the Volokh Conspiracy (hosted here at Reason), and go-to expert on First Amendment issues. While it’s true, Volokh explains, that we have a line of federal rulings prohibiting the government from mandating that private businesses carry speech, there are exceptions.

You’ve seen one of these exceptions if you’ve ever encountered a petition signature-gatherer at a California shopping mall. In a 1980 decision, Pruneyard Shopping Center v. Robins, the Supreme Court ruled that California could mandate that Pruneyard allow protesters to engage in political advocacy there, even though it was private property. The mall wasn’t being ordered to host particular messages, but rather serve as a carrier of a type of communication, which was political petitioning in this case.

“I think it’s a pretty good argument that the platforms could be treated like the law treats shopping malls,” Volokh says.

DeSantis is proposing forcing tech platforms to host candidates regardless of their positions or parties (including, presumably, DeSantis’ political opponents). He is attempting to force these platforms to serve as carriers of messages without policing the content, much like phone companies can’t control the speech of their customers.

And so, DeSantis’ proposal brings to the forefront the debate raging about social media: Are these places platforms or publishers? If they’re platforms, does that also make them “common carriers” of information? Can the government treat them like shopping malls for the purposes of fostering political participation?

There is, in fact, a barrier that will get in the way of DeSantis implementing this bill as he has described it: our old friend Section 230 of the Communications Decency Act. Section 230 clearly states, in no uncertain terms, that an internet service provider cannot be held liable for censoring content it deems “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” [Emphasis added.]

This part of Section 230 is why it’s absolutely inaccurate when politicians and critics insist that the provision’s protections require a platform to have any sort of neutrality. They do not. They never did. And this is precisely why some people want to get rid of Section 230.

But even if DeSantis’ bill runs headlong into Section 230, Volokh notes that the outcome might not be the most predictable one: federal law taking precedence and overruling Florida’s law. Volokh (and a recent Wall Street Journal op-ed) points to Supreme Court precedents that actually favor state mandates that force private entities to serve as carriers of speech when the state laws conflict with federal statutes, as opposed to conflicting with the Constitution. In these cases, the argument is that the federal statutes are actually interfering with the state’s efforts to protect the free speech rights of its citizens.

You may not agree with such an argument, because it appears to grant states the power to declare that any number of private entities must serve as a speech platform. Volokh himself says he’s not sure he’s persuaded by such an argument. But the point is that these precedents exist and must be considered when looking at Section 230’s future, particularly for those who support the law.

“I think this is a genuinely unresolved issue,” Volokh says. “This might be a sort of thing where there might be a consensus in Congress. You don’t want these quasimonopolisitic corporations influencing elections that sharply, not just through their speech, but through the blocking of speech. I could see Democratic and Republican lawmakers saying, ‘That’s something we don’t want under this private control.'”

That doesn’t make DeSantis’ proposed legislation good or something that should be supported. Social media platforms potentially being forced to carry obscene or violent messages because they come from a candidate for office is morally unsupportable, and the unintended consequences are visible from the moon. Facebook and Twitter shut you down because you keep accusing people who piss you off of being pedophiles? Just run for office!

from Latest – Reason.com https://ift.tt/3jjqLOe
via IFTTT