Tariffs aren’t merely making summer fun more expensive—they are also making it potentially more dangerous too.
“Life Saver is not a misnomer,” writes Neil Mooney, an attorney representing Life Saver Pool Fence Systems, Inc., in testimony submitted earlier this month to the U.S. International Trade Commission (USITC), which later this week will hold a hearing on the economic impact of the multitude of tariffs imposed by the Trump administration in 2018.
For a company like Life Saver, which manufactures fencing meant to keep children away from unsupervised pools where they might accidentally drown, the tariffs have hiked the cost of raw materials imported from China. In his written testimony, Mooney estimates that the company has paid about $1.2 million in tariffs over the past four years—and has twice had to raise prices “specifically because of the tariffs.”
“The imposition of the Section 301 tariffs has forced Life Saver to raise its prices which inevitably has led to lower sales volume and therefore fewer protected pools,” writes Mooney. “The economic impact of the Section 301 tariffs is not only felt by Life Saver and other similar businesses and their employees, but also by the end consumers—American families.”
Are higher taxes on Chinese-made imports worth leaving American children marginally less safe?
Apparently so, at least for the past two presidential administrations. Former President Donald Trump used Section 301 of the Trade Expansion Act of 1974 to impose tariffs on a wide range of goods imported from China in several phases during 2018 and 2019. As a result, the average tariff rate applied to goods from China effectively doubled. Cumulatively, Americans have paid about $136 billion in higher costs as a result of those import taxes—that’s about $1,000 per household, according to research by the National Taxpayers Union, a nonprofit that opposes the tariffs.
Tariffs are adding to inflation, too. A study by the Peterson Institute for International Economics, a trade-focused think tank, found that repealing tariffs could reduce overall inflation by about 1 percentage point. Despite that, the Biden administration has so far been unwilling to do more than talk about repealing the tariffs imposed by Trump.
Perhaps this week’s hearing in front of the USITC will make the case for a new trade strategy. On Thursday, business owners and industry lobbyists will have a chance to spell out how the tariffs have resulted in slower growth and higher consumer prices. Later this year, the commission is expected to publish a report that could help guide American trade policy in the future (though it’s worth noting that a similar series of hearings in 2018 did nothing to stop the onslaught of tariffs, despite dozens of business owners testifying against them).
Pool fencing is, of course, just one example of a niche product that’s been affected by four years of an ineffective trade war. Among other businesses and trade associations set to testify on Thursday are makers of outdoor equipment, sporting goods, and brewers.
Fred Ferguson, a vice president at Vista Outdoor, a Minnesota-based company that manufactures a line of bicycling accessories, including helmets, will tell the commission that the U.S. should “rescind tariffs altogether on protective headwear utilized for safety purposes cyclists and other action sports participants,” according to a written statement submitted earlier this month.
Tariffs on pool fencing and bike helmets make about as much sense as the tariffs on personal protective equipment that left American hospitals less prepared, in winter 2020, to combat the COVID-19 pandemic. They’re also a useful illustration of how both Trump and Biden trade policies could actively harm Americans in ways that go beyond higher prices.
This morning, the Washington Post published my article making the case for adopting a system of private refugee sponsorship, modeled on Canada’s. It is coauthored with Canadian refugee policy expert Sabine El-Chidiac. Here is an excerpt:
The war in Ukraine has created one of the biggest refugee crises since World War II, with about 7 million people fleeing the country. While some have since returned, and some have settled elsewhere in Europe, there are still many in need of a permanent haven. Unfortunately, the American refugee system is proving to be of comparatively little help.
Even before President Donald Trump, the refugee resettlement process was slow and cumbersome, but Trump made things much worse by slashing the annual refugee quotas to a low of 18,000 for fiscal 2020 and 15,000 for fiscal 2021…. which in turn led many resettlement organizations to shut down or scale back. President Biden raised the 2021 cap to 62,500 in May of that year — and set a cap of 125,000 for 2022 — but has not been able to restore the resettlement infrastructure that Trump undercut. As a result, the higher quotas remain largely unfilled, with a record-low 11,411 refugees admitted in 2021, even though many more would love to come. Even in the current fiscal year, the administration expects to fall far short of its target…
Since 1979… Canada’s Private Sponsorship of Refugees program has allowed ordinary people and community groups to support refugees financially and otherwise for 12 months (or until the refugee is self-sufficient, whichever comes first). Sponsors can include private citizens working together (a “Group of Five”) or a group that holds a sponsorship agreement with the Canadian government, such as a religious institution or cultural organization. In an important contrast with the U.S. [Uniting for Ukraine] program, the refugees can stay permanently after the sponsorship period, and the program is not limited to people from specific nations….
The Canadian program is superior to America’s Uniting for Ukraine in part because it offers refugees a permanent solution. How many Ukrainians admitted under the U.S. program will be able to go home in two years?….
Opening sponsored resettlement to people facing a multitude of dangers across the globe, as Canada does, makes more sense than a temporary program targeting one nationality. To take just one example, the United States should open its doors to Russians fleeing the intensifying oppression of Vladimir Putin’s regime. We should welcome people fleeing war and repression, regardless of race, ethnicity or nationality…..
Creating a program more like Canada’s could help the United States meet the moral imperative of helping Ukrainians and other refugees (permanently, not just temporarily). It would also help advance American economic and strategic interests. Studies find that migrants bolster the U.S. economy and disproportionately contribute to scientific and technological innovation, and that even refugees are net contributors to the public treasury. In addition, accepting them deprives hostile governments of valuable human resources and bolsters our position in the international war of ideas against Putin and other authoritarians….
Given all these advantages, we contend that there should be no cap on the number of privately sponsored refugees…
Later in the article, we explain how the US can improve on the Canadian program. Sabine and I previously coauthored an article on the Canadian migration policy response to the Ukraine war in the Toronto Globe and Mail.
If you really need further evidence of how foolish it is to surrender your right to protect yourself and defer to government employees who are supposed to assume that responsibility, the record of police non-response during the Uvalde mass murder should do the job. Those who, in the future, continue to insist that we disarm ourselves and venerate government enforcers who are tasked to protect us should be unceremoniously kicked to the curb.
“At Robb Elementary, law enforcement responders failed to adhere to their active shooter training, and they failed to prioritize saving the lives of innocent victims over their own safety,” finds a devastating report published July 17 by the Texas House of Representatives Investigative Committee on the Robb Elementary Shooting. “The first wave of responders to arrive included the chief of the school district police and the commander of the Uvalde Police Department SWAT team. Despite the immediate presence of local law enforcement leaders, there was an unacceptably long period of time before officers breached the classroom, neutralized the attacker, and began rescue efforts.
That delay (73 minutes in the report, or 77 minutes according to news stories) was documented in excruciating detail in video of police response published last week in both edited and full form by the Austin American-Statesman and KVUE before it was formally screened by authorities.
“We know now…that some students quietly called 911 from inside the classrooms for help, a critically wounded teacher could hear officers just outside the classroom, and that 911 dispatchers were fielding their calls of desperation,” Manny Garcia, executive editor, wrote for the Austin American-Statesman in explaining the decision to publish the video. “We also know that exasperated parents, family members and bystanders standing outside the school begged authorities to do something. After 77 minutes, the video shows the officers breach the classroom.”
Before the release of the Texas lawmakers’ report documenting failures not just by police, but by school officials who ignored their own security measures, some Uvalde families and government officials criticized the media for publishing the video before a carefully planned screening by Texas lawmakers.
“I am deeply disappointed this video was released before all of the families who were impacted that day and the community of Uvalde had the opportunity to view it as part of Chairman Dustin Burrows’ plan,” Texas Department of Public Safety (DPS) Director Steven McCraw added, referencing the planned official release of the recording.
But, while the grief of Uvalde parents is understandable, the fact that politicians intended to stage-manage release of the video is exactly the problem. We already know that elected officials leaned on DPS “to publicly paint a more positive picture of the law enforcement response,” as reported by ABC News. To his credit, McCraw hasn’t done that; he says “the law enforcement response to the attack at Robb Elementary on May 24 was an abject failure.” But the pressure to spin lethal dawdling demonstrates why officials shouldn’t control how their betrayals of public trust are presented.
“Further obscuring the truth of what happened May 24, local, state and federal officials have denied requests to release documents that could shed light on the police response, including 911 call transcripts, body camera footage, communications among law enforcement officers and arrest records from that day,” the Austin American-Statesman‘s Tony Plohetski reports.
As horrifying as it is to read the report’s full admission of failure at the scene, it’s a needed change from the ass-covering that prevailed after the crime.
“Uvalde CISD [Consolidated Independent School District] and its police department failed to implement their active shooter plan and failed to exercise command and control of law enforcement responding to the tragedy,” the report notes. “But these local officials were not the only ones expected to supply the leadership needed during this tragedy. Hundreds of responders from numerous law enforcement agencies—many of whom were better trained and better equipped than the school district police—quickly arrived on the scene. Those other responders, who also had received training on active shooter response and the interrelation of law enforcement agencies, could have helped to address the unfolding chaos.”
But the massive police presence, 376 officers in all, did not help address the unfolding chaos. That makes obvious the reason for officials’ earlier foot-dragging; police conduct at Uvalde contradicts the stories authoritarians peddle about our relationship with the government. Mostly left-wing politicians tell us that regular people should be deprived of firearms and even of the right to self-defense while the government exercises it for us. Primarily right-wing politicians insist we should “back the blue” and venerate government-employed law enforcers who will protect us from threats so that we don’t have to do it ourselves. These politicians nominally oppose one another, but they offer the same basic argument: We should trust the government and not take responsibility for our own safety.
The legislators’ Robb report and video from the scene refute those arguments. They document police officers ineffectively milling around (while outside officers stopped parents who were rushing to their children’s rescue) as a mass murder takes place just feet away. And this is not the first time that cops dithered rather than commit to protecting members of the public. Police at Columbine in 1999 delayed for 47 minutes, and for 58 minutes in Parkland, Florida, in 2018.
“Cops are civilians with guns who have had minimal training,” Eugene O’Donnell, a law professor with John Jay College of Criminal Justice and former police officer told the South Florida Sun-Sentinel in May. “Some of them are heroic. But not all.”
As Texas lawmakers point out: “law enforcement responders failed to adhere to their active shooter training, and they failed to prioritize saving the lives of innocent victims over their own safety.”
Most police departments say officers are supposed to help people. Good cops get angry and embarrassed when colleagues drop the ball. But, beyond maybe losing a job (Uvalde’s acting police chief on the day of the shooting is now suspended while the city investigates his inaction), there’s little in the way of consequences for officers who choose lingering in a hallway over defending children.
“Neither the Constitution, nor state law, impose a general duty upon police officers or other governmental officials to protect individual persons from harm — even when they know the harm will occur,” according to a 2018 assessment of legal obligations by Darren L. Hutchinson, professor and associate dean at the University of Florida School of Law. “Police can watch someone attack you, refuse to intervene and not violate the Constitution.”
But, if you listen to government officials, we should disarm ourselves and place our fates in the hands of government employees. Never mind that those tax-funded protectors have no legal obligation to exercise that responsibility and a long track record of freezing rather than running to the rescue.
Gun control? Back the blue? The people peddling those slogans have little to offer beyond empty promises and deserve nothing but contempt. Only you can be relied upon to protect you and your loved ones, and you should ignore anybody who claims otherwise.
New legislation would require some fathers to pay child support during pregnancy, beginning in the month of conception. The Unborn Child Support Act—introduced in the Senate by Sen. Kevin Cramer (R–N.D.) last Wednesday—would amend the Social Security Act “to ensure that child support for unborn children is collected and distributed under the child support enforcement program.”
The legislation (Senate Bill 4512) already has nine co-sponsors—all Republicans—including Sens. Marsha Blackburn (Tenn.), Cindy Hyde-Smith (Miss.), Roger Wicker (Miss.), and Marco Rubio (Fla.). A companion bill in the House, introduced by Rep. Mike Johnson (R–La.), has 13 co-sponsors.
Under the Unborn Child Support Act, a pregnant woman could request child support during pregnancy and the state could order “the biological father of an unborn child” to pay, beginning “with the first month in which the child was conceived, as determined by a physician.” Unborn child is defined as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.”
Such payments “may be retroactively collected or awarded, including in the case where paternity is established subsequent to the birth of the child,” the draft law states.
I’m introducing the Unborn Child Support Act with @RepMikeJohnson, legislation to give mothers the ability to receive child support payments while pregnant.
Our bill makes it possible for mothers to receive payments as soon as she's supporting a child. https://t.co/fCxAUxi8dm
Abortion opponents are often accused of not doing much to actually help women with unwanted or difficult pregnancies. Looked at in one light, the Unborn Child Support Act is simply a bid to remedy that.
“Caring for the well-being of our children begins long before a baby is born,” said Cramer in a statement. “It begins at the first moment of life—conception—and fathers have obligations, financial and otherwise, during pregnancy.”
But sponsors of the bill may have a hidden agenda. By amending federal law to say that child support is owed during pregnancy, the Unborn Child Support Act could help establish that legal personhood begins at conception—a change that could have implications far beyond child support.
“Life begins at conception. This bill is a simple first step toward updating our federal laws to reflect that fact,” tweetedJohnson last week.
Cramer and several co-sponsors of the Unborn Child Support Act are also co-sponsors of a stalled federal bill declaring that “the right to life guaranteed by the Constitution is vested in each human being at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual comes into being.”
“This is not the first time they’ve tried to insert this personhood language into a national bill,” Mississippi Reproductive Freedom Fund co-founder Laurie Bertram Roberts told the Mississippi Free Press. “And see, the way they’re doing it is very sneaky, the way they’re doing it is under the guise of, ‘Oh look, doesn’t this make sense?’ Because this is one of those arguments that has been coming from people who actually support abortion, which is why I tell people not to make these arguments, even in jest, like, ‘If y’all want to make us have babies, start child support at the moment of conception.'”
Roberts also suggested that the bill could be “another way to nickel and dime low-income and working class non-custodial parents in a way that makes money for the state.”
FREE MINDS
Judge blocks Biden administration’s Title IX guidance. On Friday, a federal judge put a halt on the Biden administration’s 2021 guidance regarding Title IX. The policy guidance would extend Title IX’s protection against sex-based discrimination in education to cover discrimination based on sexual orientation or gender identity. Twenty states have sued over the proposed change. On Friday, U.S. District Judge Charles E. Atchley Jr. said the new guidance “directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws” and issued a preliminary injunction on its enforcement.
The Department of Education “will have to finalize its Title IX rule to enforce its guidance,” notesPolitico. “The Education Department published its Title IX proposed rule in June, which would codify its guidance protecting transgender students once it’s finalized. The comment period on the rule runs through September.” Read more on the proposed rule here.
FREE MARKETS
Amazon answers about Ring surveillance. Amazon admitted that it sometimes turns over footage from its Ring home security cameras to law enforcement without Ring owners knowing it and without a warrant. The acknowledgment came in response to a request for information from Sen. Ed Markey (D–Mass.). In a July 1 letter, Amazon said it has turned over data under such circumstances 11 times this year.
“Ring has stated that it will not share ‘customer information’ with law enforcement absent consent, a warrant, or ‘an exigent or emergency’ circumstance,” noted Markey, asking Amazon to “please explain in detail Ring’s specific internal policies regarding what constitutes an ‘exigent or emergency’ circumstance.”
“How many times has Ring shared a user’s recordings with law enforcement because of an ‘exigent or emergency’ circumstance?” Markey also asked.
Amazon responded:
As stated in Ring’s law enforcement guidelines, Ring reserves the right to respond immediately to urgent law enforcement requests for information in cases involving imminent danger of death or serious physical injury to any person. Emergency disclosure requests must be accompanied by a completed emergency request form.Based on the information provided in the emergency request form and the circumstances described by the officer, Ring makes a good-faith determination whether the request meets the well-known standard, grounded in federal law, that there is imminent danger of death or serious physical injury to any person requiring disclosure of information without delay. … So far this year, Ring has provided videos to law enforcement in response to an emergency request only 11 times. In each instance, Ring made a good-faith determination that there was an imminent danger of death or serious physical injury to a person requiring disclosure of information without delay.
wow. this is the actual page where cops can go to request Ring camera footage from Amazon without a warrant or the camera owner's consent. it has a big "submit emergency request" button. when you click that button it takes you to a form. it's so clear how easily abused this is pic.twitter.com/3YSOVyDBME
The Drug War is officially back on in San Francisco. For the first time in years, people are being prosecuted for simply using drugs or possessing paraphernalia. It’s hard to fully comprehend the harm this will cause. I’ll try to lay it out below.
• The U.S. military isn’t immune from tough times recruiting: “Almost across the board, the armed forces are experiencing large shortfalls in enlistments this year—a deficit of thousands of entry-level troops that is on pace to be worse than any since just after the Vietnam War,” notesThe New York Times. The pandemic, vaccination policies, and a hot labor market play a role, as do “longer-term demographic trends … Less than one-quarter of young American adults are physically fit to enlist and have no disqualifying criminal record, a proportion that has shrunk steadily in recent years.”
• “A new report on federal firearm offenses shows that the vast majority involve illegal possession, often without aggravating circumstances or a history of violence,” notesReason‘s Jacob Sullum. “The data undermine the assumption that people who violate gun laws are predatory criminals who pose a serious threat to public safety” and “highlight the racially disproportionate impact of such laws.”
• “The Texas Medical Association wants regulators to step in after hospitals reportedly refused to treat patients with serious pregnancy complications for fear of violating the state’s abortion ban,” reportsThe Dallas Morning News.
• “The Department of Education should not exist,” said Betsy DeVos, the former secretary of the Department of Education.
• “More than halfway through 2022, many cities and towns across America—big and small—are somehow still pretending that food trucks are some newfangled nuisances that must be regulated out of existence,” writes Baylen Linnekin for Reason.
I’m working on a draft article with this title, and I thought I’d serialize it here, since I still have plenty of time to improve it; I’d love to hear your thoughts on it! (You can also read the whole article here; all the posts about it will go into this thread.)
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Sometimes lies are constitutionally punishable: consider libel, false statements to government investigators, fraudulent charitable fundraising, and more. (I speak here of lies in the sense of knowing or reckless falsehoods, rather than honest mistakes.) But sometimes even deliberate lies are constitutionally protected. In New York Times v. Sullivan, the Court held that even deliberate lies (said with “actual malice”) about the government are constitutionally protected. And in United States v. Alvarez, five of the Justices agreed that lies about “about philosophy, religion, history, the social sciences, the arts, and the like” are generally protected.
The Supreme Court hasn’t explained where the line is drawn, and that leaves unclear where important areas of controversy—such as laws punishing lies in election campaigns—should fall. In this short article, I hope to offer an account that makes sense of the precedents, and offers a framework for making future decisions.
[I.] Punishable Lies
The Supreme Court has held that defamation, perjury, fraudulent attempts to get money, speech actionable under the false light tort, and lies that inflict severe emotional distress are all constitutionally unprotected.[3]
In Alvarez, the Court also suggested that the government may more broadly punish lies that involve “some … legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation”; “false statements made to Government officials, in communications concerning official matters”; and lies that are “integral to criminal conduct,” a category that might include “falsely representing that one is speaking on behalf of the Government, or … impersonating a Government officer.”[4]Minnesota Voters Alliance v. Mansky stated, in dictum, that “We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures”;[5] but that case focused on speech in a nonpublic forum (polling places), and it’s not clear that the Court meant to authorize such prohibitions in public speech more generally.
Lower courts have generally allowed liability or punishment for lies about others’ products or property;[6] unsworn lies to government officials;[7] lies likely to provoke public panic;[8] lies about being a government official;[9] lies about having a particular university degree or professional license (regardless of whether the false representation is intended to defraud a prospective employer or professional client);[10] lies to voters about the authorship or endorsement of political campaign materials;[11] and a candidate’s lies to voters about his own credentials.[12] (Query whether these cases are in some measure undermined by Alvarez.)
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Tomorrow: Unpunishable lies.
[3] Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (defamation); Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961) (perjury); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003) (fraud, even in the context of otherwise fully protected charitable solicitations); Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974) (false light); Time, Inc. v. Hill, 385 U.S. 374 (1967) (false light); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988) (intentional infliction of severe emotional distress).
[4] 567 U.S. 709, 719 (2012) (plurality opin.); id. at 734 (Breyer, J., concurring in the judgment).
[6] Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990) (trade libel); SCO Group, Inc. v. Novell, Inc., 692 F. Supp. 2d 1287, 1296 (D. Utah 2010) (slander of title). This is so even though these torts do not injure the individual dignitary interests that have long justified defamation law, see Milkovich v. Lorain Journal Co., 497 U.S. 1, 22 (1990) (quoting with approval Rosenblatt v. Baer, 383 U.S. 75, 92-93 (1966) (Stewart, J., concurring)).
[7]E.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982) (18 U.S.C. § 1001 generally); United States v. Konstantakakos, 121 Fed. Appx. 902, 905 (2d Cir. 2005) (statements on an immigration application); People v. Hanifin, 77 A.D.3d 1181 (N.Y. App. Div. 2010) (911 calls); State v. Bailey, 644 N.E.2d 314 (Ohio 1994) (statements to police officer); Howell v. State, 921 N.E.2d 503 (Ind. Ct. App. 2009) (statements to police officer). This likely includes knowingly false crime reports made to the public in general, if they seem certain to come to the attention of law enforcement officials. Haley v. State, 712 S.E.2d 838 (Ga. 2011) (rejecting First Amendment challenge to defendant’s conviction when defendant released YouTube videos claiming to be a serial killer and was then prosecuted for making a false statement on a matter within the jurisdiction of a state agency).
[8] Schenck v. United States, 249 U.S. 47, 52 (1919) (“falsely shouting fire in a theatre”); 47 C.F.R. § 73.1217 (false radio or television statements that foreseeably cause “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties”); 18 U.S.C. § 1038(a)(1) (false statements claiming an attack involving weapons of mass destruction “has taken, is taking, or will take place”), upheld by United States v. Brahm, 520 F. Supp. 2d 619, 626-27 (D.N.J. 2007) (citing Schenck).
[9] Chappell v. United States, 2010 WL 2520627 (E.D. Va. June 21); United Seniors Ass’n, Inc. v. Social Sec. Admin., 423 F.3d 397, 404, 407 (4th Cir. 2005); State v. Wickstrom, 348 N.W.2d 183 (Wis. Ct. App. 1984). The statutes apply even when this does not involve fraudulently depriving anyone of money or property. Thus, for instance, the federal statute barring impersonation of federal officials, 18 U.S.C. § 912, has been read to require only “that the defendants have, by artifice and deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct.” United States v. Lepowitch, 318 U.S. 702, 704 (1943). “[A] person may be defrauded although he parts with something of no measurable value at all.” Id. at 705; see also United States v. Robbins, 613 F.2d 688 (8th Cir. 1979); United States v. Hamilton, 276 F.2d 96 (7th Cir. 1960); State v. Messer, 91 P.3d 1191 (Kan. 2004). Nor are the statutes limited to impersonation of government officials who have coercive power such as that possessed by FBI agents or police officers. See, e.g., 18 U.S.C. § 912 (covering impersonation of any federal government agent); State v. Cantor, 534 A.2d 83 (N.J. Super. Ct. App. Div. 1987) (upholding conviction for defendant newspaper reporter’s impersonating a county morgue employee in order to get information about a homicide victim from the victim’s mother).
[10] Long v. State, 622 So. 2d 536 (Fla. Ct. App. 1993); People v. Kirk, 310 N.Y.S.2d 155 (Cty. Ct. 1969); State v. Marino, 929 P.2d 173 (Kan. Ct. App. 1996).
[11] This is so when the statements violate trademark law or other legal rules, even when no money is involved. E.g., United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997) (rejecting First Amendment arguments and upholding injunction against defendant’s using the name “United We Stand, America”); United We Stand America, Inc. v. United We Stand, America New York, Inc., 941 F. Supp. 39 (S.D.N.Y. 1996) (stating that the Lanham Act applies not just to deceptive uses of another organization’s name with respect to fundraising, but also with respect to “holding public meetings and press conferences” and “propounding proposals”) (quoting Brach Van Houten Holding, Inc. v. Save Brach’s Coalition for Chicago, 856 F. Supp. 472, 475-76 (N.D. Ill. 1994)); Tomei v. Finley, 512 F. Supp. 695 (N.D. Ill. 1981) (rejecting First Amendment arguments and enjoining Democratic candidates from using the acronym “REP,” as in “Vote REP April 7,” as shorthand for the Representation for Every Person Party, a name seemingly chosen precisely to deceive voters into thinking that the candidates were Republicans); Schmitt v. McLaughlin, 275 N.W.2d 587, 590 (Minn. 1979) (rejecting First Amendment arguments in holding that the defendant’s use of initials “DFL” in advertisements and lawn signs violated a state law barring false claims of support or endorsement by a political party, there the Democratic Farmer Labor party); People v. Duryea, 351 N.Y.S.2d 978, 988 (Sup. Ct. 1974) (dictum) (stating that a ban on false claims of endorsement by a political party would be constitutional), aff’d, 354 N.Y.S.2d 129 (App. Div. 1974).
[12] Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446 (Mich. Ct. App. 1986) (upholding against First Amendment challenge a statute banning false claims that one is the incumbent); Ohio Democratic Party v. Ohio Elections Comm’n, 2008 WL 3878364 (Ohio. Ct. App. Aug. 21) (upholding against First Amendment challenge a statute banning candidates from claiming to hold an office that they do not currently hold). Alvarez of course also involved a politician’s lies about his credentials, but that statute was not focused on candidate lies to voters.
The “fighting words” First Amendment exception generally allows the punishment of personal face-to-face insults that are likely to provoke a fight; usually, they involve a risk that the target would throw a punch (or worse), but the risk could also stem from third parties connected to the target, and from statements that are seen as personally offensive even if they aren’t literal insults. State v. Riley, decided in 2017 by the Wisconsin Court of Appeals (by Presiding Judge Paul Lundsten and Judges Brian Blanchard and Michael Fitzpatrick) but for some reason just posted on Westlaw, illustrates this well:
Riley was charged with disorderly conduct, substantial battery, and two counts of felony bail jumping, all as a repeater, after a fight that originated in a tavern. According to the complaint, Riley made “inappropriate” comments about the victim’s girlfriend, which led to an altercation in the tavern. After the fight broke up, Riley and an associate subsequently attacked the victim outside the tavern. At trial, witnesses testified to the comments made by Riley while still inside the tavern that were directed at the victim’s girlfriend, who was a bartender at the tavern.
The victim’s girlfriend testified that Riley is related to her former boyfriend and that Riley’s friend had asked her if she was dating the victim. She testified that Riley later approached her at the bar and made a vulgar comment about her vagina. Riley then stated loudly, while looking directly at her, that he was planning to “take that bartender home and fuck her that night.” The victim testified that he heard Riley announce that he was “going to fuck the shit out of the bartender tonight,” which he interpreted as referring to his girlfriend because Riley was standing face to face with her at the time. Two other witnesses testified that they heard Riley making similar comments, with lewd terms that we need not repeat, in which he loudly announced what he intended to do to the victim’s girlfriend….
Riley was convicted, and the court held that his comments qualified as “fighting words” for First Amendment purposes:
The parties agree that this case involves the application of the fighting words doctrine, which allows a defendant to be prosecuted for “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” … Riley made crass and lewd comments directly to the object of his commentary, who he also knew was the victim’s girlfriend. Moreover, he made these comments loudly, with knowledge that the victim was nearby….
Riley makes four arguments for why his comments are protected speech that cannot be a basis for his criminal convictions. First, he made these comments in a tavern, which he argues is “an environment restricted to adults and centered on drunkenness,” where “[d]istasteful speech is common.” Riley seems to be arguing that tavern patrons should have greater speech protections than the ordinary public, which would arguably give them more leeway to use provocative language in a tavern setting.
We reject this argument for two reasons. First, Riley provides no legal support for the proposition that provocative language enjoys more protection in places like taverns. Indeed, it could be argued that provocative language is more dangerous in a tavern setting because people are more likely to be intoxicated. Second, even assuming without deciding that more provocative language is permissible in a tavern setting, the language used by Riley here was beyond any reasonable bound.
Second, Riley argues that his comments were a frank and crass discussion of his sexual interest and, as such, they are socially useful and deserving of protection under the First Amendment. He further suggests that comments relating to sex should be entitled to greater protection because, in his view, efforts to police sexual innuendo often stem from religious concerns. We disagree that the comments that Riley directed at the victim’s girlfriend were socially useful, or that his prosecution was motivated by religious concerns. Instead, we think it is common knowledge that sexually explicit comments, like those here, directed at a woman or a man in front of that person’s boyfriend or girlfriend are inherently likely to provoke a violent reaction, which places Riley’s comments squarely within the fighting words doctrine.
Third, Riley contends that the circuit court erred because it determined that Riley’s comments would be protected speech if made “discreetly.” Riley argues that the fact that his offensive comments were overheard cannot be a basis for penalizing him for his speech. He draws on the example of the defendant in Cohen v. California (1971), who, inside a courthouse, wore a jacket that read, “Fuck the Draft.” The United States Supreme Court explained that no reasonable person would see Cohen’s jacket as a “direct personal insult.” Because the slogan on the jacket was not directed at any particular person, the Court held that this sort of provocative speech is protected even when it is “thrust upon unwilling or unsuspecting viewers.”
In contrast, the present case involves comments that were directed at the victim’s girlfriend, and delivered in a manner that ensured that her nearby boyfriend would overhear them. This is not a situation in which Riley’s comments were merely overheard by tavern patrons generally.
Fourth, Riley argues that the circuit court’s use of the word “lewd” to describe Riley’s comments suggests that his speech is being policed because it was obscene…. [But] Riley’s comments do not deserve protection because they consisted of abusive comments directed at the victim’s girlfriend, under circumstances that were likely to provoke a violent reaction. If these comments were also lewd or obscene does not weigh in favor of giving them protection….
The Wisconsin Supreme Court denied review, though Justice Shirley Abrahamson dissented from the denial.
Two summers ago, Gallaudet University President Roberta Cordano suspended the school’s chapter of the Kappa Gamma fraternity for violating a University policy banning the use of ceremonial hooded robes resembling those worn by some hate groups. Around the same time, a decades-old photograph resurfaced depicting a group of 34 chapter members performing something akin to a Nazi salute.
Announcing the suspension—which coincided with the nationwide protests over the death of George Floyd—President Cordano remarked that Kappa Gamma had “become the face of systemic racism in our community, with photographs of the salute and use of robes being shared on social media.” Cordano did not display any photos or mention any fraternity member by name. The Washington Post later reported on the suspension, quoting Cordano’s comments. It, too, did not publish any photograph or name any individual Kappa Gamma member….
Chartered in 1864, Gallaudet University has a storied history as the oldest college in the United States for students who are deaf and hard of hearing. The four plaintiffs in this case are Gallaudet alumni Steven Florio, Patrick Costello, William Millios, and Timothy Mallach. All graduated between 1989 and 1992 and were members of Kappa Gamma, the University’s oldest fraternity.
The plaintiffs stress that the fraternity has “stringent criteria for membership,” including a minimum GPA and leadership requirements, and is highly regarded in the Deaf community.
Yet it has also come under controversy. Not unusual for fraternities, says the complaint, Kappa Gamma has certain traditions that include a salute and the donning of robes. The plaintiffs acknowledge that the fraternity’s former salute, known as the “Bellamy salute,” “ha[s] some similarities in appearance” to that used by “Italian Fascist[s] and German Nazis.” While the Bellamy salute was used in America during the Pledge of Allegiance beginning in 1892, the federal government enacted a law during World War II that “replaced [it] with the hand over heart” gesture used during the Pledge today. Supposedly because the Bellamy salute was not explicitly declared a symbol of Nazism, Kappa Gamma continued to perform the salute until the early 1990s.
Enter the photograph from the late 1980s, depicting 34 Kappa Gamma members performing the Bellamy salute. Plaintiffs Costello and Millios appear in the photo. Florio and Mallach, who were not in the fraternity at the time, do not. The photograph first emerged on social media in 2016. When it surfaced, Kappa Gamma responded that “[t]he gestures shown are denounced, not practiced, nor accepted in any form by any recent or current administration. These pictures go against our present-day standards of conduct for our members, pledges, and alumni.”
Notwithstanding the fraternity’s official comments, the photograph reappeared on social media four years later. The timing coincided with the death of George Floyd in May 2020 and the resulting nationwide protests for racial justice. As the amended complaint acknowledges, those events brought “the problem of systemic racism … to the forefront of the American psyche.” Also around the same time, information emerged regarding Kappa Gamma’s apparent intent to bring back the ceremonial hooded robes that had been banned in 2015. That ban stemmed from concerns expressed by Gallaudet’s student body government that the robes resembled “those used by hate groups.” The “new evidence” regarding Kappa Gamma’s reintroduction of the robes prompted an investigation, which concluded that the fraternity violated the ban and resulted in the chapter’s suspension from campus. All these events led to Gallaudet President Roberta Cordano’s June 9, 2020 address on the suspension, which she delivered using American Sign Language (ASL) on Gallaudet’s YouTube channel.
Four fraternity alumni sued Gallaudet (and some of its officials) and the Washington Post for libel, but the court rejected that. First, the court concluded that the statements about the fraternity weren’t “of and concerning” the particular plaintiffs (which is one element that defamation plaintiffs must prove).
The plaintiffs mainly take offense with the following portion of President Cordano’s remarks. Per the transcript of her ASL address, she said that she:
became aware of new information that led to renewed demands for change with Kappa Gamma, a fraternity with a long history at Gallaudet. They have become the face of systemic racism in our community, with photographs of the salute and use of robes being shared on social media. This behavior is unacceptable.
Gallaudet has now taken action to suspend Kappa Gamma on campus. We are in the process of reviewing other organizations and the status of their histories and their efforts to determine if further steps will need to be taken. As President, I am convening diverse leaders on campus to develop a plan to review and understand the role of fraternities and sororities at Gallaudet.
The plaintiffs allege, however, that there is a key difference in the actual ASL version of the address. They say Cordano signed, in relevant part, “Kappa Gamma, pictures being distributed on social media of their use of hooded robes and of the salute, they have become the face of systemic racism.” The alleged implication is that the fraternity members in the salute photograph, including plaintiffs Costello and Millios, are the “faces of racism.” President Cordano, the complaint continues, also did “her version of a Bellamy salute” that gave “the appearance [of] a Nazi salute.” The complaint does not allege that either she or the University published the salute photograph, or that she named the plaintiffs, or any particular Kappa Gamma member or alumni, in her address.
On June 12, 2020, the Washington Post published an article with the headline, “Gallaudet University suspends fraternity after anti-Semitic photo resurfaces.” The article recounts the controversy over the robes, before turning to the salute photograph. “That photo,” the Post reported, “shows former members, including a current member of the school’s board of trustees, performing an apparent Nazi salute. Th[is] older photo resurfaced around the same time members were caught wearing the robes. School officials denounced the salute but said it was not a factor in the suspension.” The article also quoted President Cordano’s ASL address, including her statement that Kappa Gamma had become the “face of systemic racism” on campus. No version of the article includes any picture of or link to the salute photograph, nor did the article mention the plaintiffs.
{The Post article reported that President Cordano and University officials said that Kappa Gamma “members were identified wearing the prohibited ceremonial robes,” apparently from other “recent photos posted on social media”; the article later adds that “members were caught wearing the robes.” But the complaint does not provide this detail. It instead asserts on “information and belief” that “there were in fact no new or recent photographs of current active or alumni members of Kappa Gamma wearing robes being shared on social media as of June 5, 2020.”} …
“Defamation is personal; allegations of defamation by an organization and its members are not interchangeable.” “[S]tatements which refer to an organization do not implicate its members.” “This principle” may not be “absolute,” but it is largely dispositive in this case.
Starting with plaintiffs Florio and Mallach, neither is named in any of the challenged statements, nor do they appear in the salute photograph referenced in some of the statements. The statements mention only Kappa Gamma as a whole. This implicates “the ‘group defamation’ doctrine.” Across various jurisdictions, including the District, courts have “narrowly construed” a “small- group exception” to generally require “no more than 20 or 30 members [] before they will hold that defamation of the group should be deemed to have particular application to a group member who is not named in the defamatory remarks.” These “rules of thumb have been followed in this Circuit” and easily dispose of Florio’s and Mallach’s claims.
The plaintiffs concede that the fraternity “numerically is not a small group.” This makes sense—given its long history, Kappa Gamma surely has hundreds (if not thousands) of living alumni. Plainly, then, none of the challenged statements are “of and concerning” Florio or Mallach individually. Their sole connection to the statements is that they were in Kappa Gamma; that does not “reasonably give rise to the conclusion that” the statements about the larger group make “particular reference” to them as former student members. Florio’s and Mallach’s claims thus fail the threshold element of defamation….
Unlike Florio and Mallach, Costello and Millios were among the 34 Kappa Gamma members in the salute photograph. That figure comes much closer to a sufficiently small group to trigger the small-group exception to the group-defamation doctrine…. Putting the size of the group aside, … [n]o “reasonable listener” or reader “could conclude that the statement[s] referred to each member” in the salute photograph “or ‘solely or especially’ to” any individual in the photo, including Costello or Millios. Reading the challenged “statements in context,” President Cordano’s address and the Post’s article were about the suspension of Kappa Gamma generally, which in turn was based on “new information” and the controversy regarding the recent reappearance of the banned robes apparently worn by current student members. Although the decades-old salute photograph is mentioned, that reference appears right alongside other references to “Kappa Gamma” as a group, the use of the robes—which involves additional (apparently current) student members, thus adding to the overall size of the group—and the word “they.” …
In sum, the challenged statements are about Gallaudet’s Kappa Gamma chapter as a whole, not about any one member. The crux of the plaintiffs’ complaint is that because the whole of Kappa Gamma was disparaged, even though no member current or former was mentioned, they themselves have a personal claim sounding in defamation. But again, “no reasonable person would be able to infer that [the defendants were] accusing [Costello and Millios] of” being the face of systemic racism in the Gallaudet community. Indeed, no reasonable person could conclude that any of the challenged statements—in President Cordano’s comments or in the Post’s article—are about any of the plaintiffs as opposed to the broader fraternity chapter to which they belong….
A final note on the purported “significant variations” between President Cordano’s actual use of sign language and the transcript of her ASL address. To refresh, the plaintiffs allege that what Cordano actually signed was different than the transcript of her remarks; the suggestion is that she directly signed that the fraternity members in the photograph are the “faces of racism.” While the Court accepts that “facial expressions and bodily gestures are highly relevant” for understanding ASL, and the plaintiffs’ formulation of Cordano’s message is slightly different than the transcript, the analysis under the group-defamation doctrine does not yield a different result. This version of the message still references both the hooded robes and the salute, thus increasing the size of the group, and the full context of the statements, noted above, is the same. It cannot be interpreted as specifically referring to a particular individual. But even if it could, for the reasons the Court will explain next, the plaintiffs still fail to state a claim….
The court also concluded that the “face of systemic racism” statement was “non-actionable opinion”:
[I]t is [President Cordano’s] “subjective view” or “interpretation” of the fallout from the reappearance of the salute photo on social media and the controversy over the robes. The phrase “face of” connotes an inherently subjective assessment and is the sort of “imaginative expression” and “rhetorical hyperbole” that typifies non-actionable opinion.
Yes, there are facts undergirding this opinion—that the salute photo was circulated and depicts Kappa Gamma members—but they are undisputed. “[W]hen,” as here, a speaker “gives a statement of opinion that is based upon true facts that are revealed to readers or which are already known to readers, such opinions generally are not actionable.” That is because “the reader understands” such opinions as the speaker’s “interpretation of the facts presented,” so “the reader is free to draw his or her own conclusions.” So too here.
Numerous other courts have found similar commentary on racism or bigotry to be non- actionable opinion. See, e.g., McCaskill v. Gallaudet Univ. (D.D.C. 2014) (“[N]o decision has found statements claiming that a person is anti-gay or homophobic to be actionable defamation.”) (collecting cases); Brimelow v. N.Y. Times Co. (S.D.N.Y. 2020) (holding that the “characterization of some individuals … as ‘white nationalists’ is … non-actionable opinion commentary”); Smith v. Sch. Dist. of Phila. (E.D. Pa. 2000) (statements that plaintiff was “racist and anti-Semitic” were “non-fact based rhetoric”); Skidmore v. Gilbert (N.D. Cal. 2022) (collecting cases from “multiple courts” holding “that a term like ‘racist’ … is not actionable under defamation-type claims.”), appeal docketed (9th Cir. 2022); Ward v. Zelikovsky (N.J. 1994) (“Most courts that have considered whether allegations of racism, ethnic hatred or bigotry are defamatory have concluded for a variety of reasons that they are not.”). If statements that someone is a racist are susceptible to multiple meanings and different interpretations such that they are non-actionable opinion, then the phrase “face of systemic racism,” as used by President Cordano and quoted by the Post, fits even more squarely into that category.
The court added:
Moreover, the complaint concedes that the “apparent Nazi salute” statement is substantially true, which defeats any claim of defamation [based on that statement]. Specifically, the plaintiffs acknowledge that the salute adopted by Fascists and Nazis in the 1920s and 1930s “ha[s] some similarities in appearance to the Bellamy salute” performed by Kappa Gamma. There is no material difference between that conceded description and The Post calling the salute an “apparent Nazi salute.” The statements do not say that the salute was an actual Nazi salute.
You can see photos of the salute and the robes (which were apparently generally blue or brown), which I’m avoiding reproducing directly for copyright reasons. You can also see more on the Bellamy salute here.
On May 4, The New York Times revealed that the U.S. was providing classified Russian asset targeting intelligence to the Ukrainian military. While it’s not surprising that the military would provide an ally with information about Russian troop movements, publicly admitting it is a dangerous mistake.
The anonymous U.S. officials who spoke to the Times did not say how many Russians were killed thanks to American intel. But it’s unlikely that Ukrainians could have killed a dozen Russian generals without assistance. In an attempt to downplay the disclosure, National Security Council spokeswoman Adrienne Watson said U.S. battlefield intelligence was not provided to the Ukrainians “with the intent to kill Russian generals.” Is that technicality supposed to placate Russian President Vladimir Putin?
The intelligence leak also revealed that U.S. information sharing was happening in “real time” and was not limited to Russian troop movement across Ukraine’s contested Donbas region, where the population leans pro-Russian. For instance, U.S. officials told NBC that America gave the Ukrainian military details about the location of the Russian ship Moskva. Ukraine used American intel, in conjunction with its own maritime intelligence, to sink the warship with two Neptune missiles on April 14 (although Moscow still claims the Moskva sank due to a fire).
Following that victory, Pentagon Press Secretary John Kirby denied that the U.S. gave the Ukrainian military “specific targeting information” and claimed the U.S. “had no prior knowledge of Ukraine’s intent to target the ship.” Given the anonymous leak to The New York Times, this statement is hard to take at face value.
Since Russia invaded Ukraine on February 24, President Joe Biden has insisted that “our forces are not and will not be engaged in a conflict with Russia in Ukraine.” But leaking covert operations is an unnecessary escalation of an already precarious situation. While talking to leaders of the U.S. intelligence community, New York Times columnist Thomas Friedman reported, Biden used “the strongest and most colorful language” to explain how “this kind of loose talk is reckless and has got to stop immediately.”
These disclosures, along with Defense Secretary Lloyd J. Austin’s comment to the media that Russia should be “weakened to the degree it cannot do the kinds of things that it has done in invading Ukraine,” can’t sit well with Putin. And the last thing the U.S. should be doing is poking a nuclear bear.
I was worried I wouldn’t be able to stomach When Harry Became Sally: Responding to the Transgender Moment, Ryan T. Anderson’s 2018 book on gender identity in modern America. Anderson is a Catholic pundit who made a name for himself opposing same-sex marriage at a time when even many of his conservative peers had let that one go. Yet, while there’s plenty in the book for socially liberal folks (myself included) to disagree with, it isn’t brimming with blatant bigotry. One might argue that he has selectively wielded data and anecdotes, and one might disagree with the conclusions he draws—chief among them that helping people with gender dysphoria accept their birth sex may be a more effective and humane course of action than hormone treatments and surgeries. But this isn’t a wildly hateful or inflammatory book.
That’s what makes Amazon’s 2021 decision to stop selling When Harry Became Sally so strange. The megaplatform is home to all sorts of socially conservative books, including Anderson’s previous publications on marriage. It carries works from radical feminists, whose takes on transgender issues often mirror those of conservatives. It carries a Matt Walsh book calling trans ideology “collective insanity.” It sells Michelle Malkin’s defense of internment camps.
What made Amazon single out When Harry Became Sally? The company’s vice president of public policy explained that they “have chosen not to sell books that frame LGBTQ+ identity as a mental illness.” And yet, gender dysphoria is still included in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders—available on Amazon.
This isn’t the sort of censorship we typically lament when it comes to book bans. As a private company, Amazon can sell or not sell any titles it chooses. When Harry Became Sally can still be found in myriad places—I picked up a copy through Barnes & Noble—and perhaps Anderson is getting the last laugh: The controversy has brought ample attention to his product, and his publisher can (and does) market it as “the book Amazon doesn’t want you to read.”
But Amazon’s decision reflects a way of thinking about intellectual pluralism on digital platforms, which are under pressure to reject speech that doesn’t conform to certain progressive orthodoxies. And tech platforms, along with book publishers and distributors, seem increasingly apt to give in to these campaigns. In Anderson’s case, Amazon’s decision seems motivated more by high-profile ire at When Harry Became Sally than by anything uniquely offensive within it.
