Police Faked Evidence and the Real Killer Confessed. But Missouri Still Imprisoned an Innocent Man for 24 Years.

The St. Louis Circuit Attorney’s Office will give a new trial to Lamar Johnson, who was convicted of capital murder in 1995 after the lead detective falsified witness statements and bribed a man to identify Johnson as the killer.

For Johnson to have been guilty, he would have had to leave an apartment party, travel three miles, kill the victim, and return on foot to the same party within a matter of five minutes. St. Louis Circuit Attorney Kim Gardner has now filed a 67-page motion to vacate the conviction. It and an accompanying investigative report say that Johnson was only convicted after police and prosecutors relied on “perjured testimony, suppression of exculpatory and material impeachment evidence of secret payments to the sole eyewitness, and undisclosed Brady material related to a jailhouse informant with a history of incentivized cooperation with the State.”

Joseph Nickerson, the lead detective at the time, was found to have fabricated parts of his investigation, including falsifying four witness statements and bribing a man $4,000 to identify Johnson as the shooter at trial. Johnson continued to sit in prison even after the actual killers confessed to their crime, and absolved Johnson of any involvement, in 1996 and 2002.

The Midwest Innocence Project (MIP), which has long represented Johnson, praised Gardner in a press release for filing a motion for a new trial. “We don’t expect prosecutors or law enforcement officers to be perfect—but we should expect that once overwhelming evidence of innocence and government misconduct come to light, that prosecutors fulfill their duty to administer justice by correcting those injustices,” said MIP attorney Lindsay Runnels.

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Utah Is Letting Lots of Government Employees Work From Home

Utah’s state government is telling some of its workers to stay home.

After a successful pilot program that allowed 136 state employees to shift to teleworking, Lt. Gov. Spencer Cox has announced a new initiative that will allow more than 2,500 government employees to share office desks as they work from home a few days each week. The state hopes this reduction in commutes will increase productivity and reduce emissions.

It’s a good idea, and it could be model for other states to follow.

Contrary to perceptions that working from home means slacking off, telework means higher productivity. It can help reduce worker absences and unexpected sick days, and it allows work to continue during inclement weather. Employees save time and money, and they have more scheduling flexibility. They also tend to be more satisfied with their jobs, which reduces the costs associated with job turnover and hiring new workers. 

It can also save taxpayers money, by reducing transit subsidies and office real estate costs.

Utah’s government predicts tens of millions of dollars of savings just from spending less on real estate, in addition to reducing carbon emissions by 1.3 tons per month. The state government also hopes that allowing telework will make rural areas that have lost population more attractive places to move. 

Tennessee has already had success with teleworking. Governing reported last year that the state has moved 6,000 of the executive branch’s 38,000 employees to remote work and hopes to eventually raise that total to 27,000. Program participants have saved an average of $1,800 a year in gas, the state has reduced real estate costs by $6.5 million, and the government plans to sell one of its larger downtown Nashville office buildings, which should translate to another $40 to $60 million in savings.

Federal efforts to expand teleworking have moved more slowly. A Government Accountability Office report from 2013 showed that many federal agencies had failed to act on improving their telework capacities, primarily due to failures to properly track costs and benefits. A more recent report from the Office of Personnel Management, from 2018, found numerous agencies still behind on telework. 

But there’s a real potential for savings at the federal level. According to an analysis from the economic consulting firm Global Workplace Analytics, published in 2013, effectively implemented federal telework policy could reduce government spending by almost $14 billion a year. The firm estimated up to $3.6 billion in real estate savings, up to $5.8 billion in higher productivity, and up to $1.3 billion in savings from lower absenteeism, along with several other benefits. 

That’s not going to single-handedly solve a federal budget that’s on pace to run trillion-dollar deficits for the foreseeable future, but every little bit could help.

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Cops Can’t Take a Joke? The First Amendment Doesn’t Care

“The First Amendment does not depend on whether everyone is in on the joke.” So ruled a federal appeals court this week in another case of someone arrested over his Facebook speech.

The ruling stems from a parody police page created by Anthony Novak of Ohio. He set it up to poke fun at and criticize cops in his local Parma Police Department.

“Novak’s page delighted, disgusted, and confused,” notes the 6th Circuit Court of Appeals in its recent ruling. “Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a ‘most gullible person on Facebook’ standard.”

The court ruled in favor of Novak, who had been investigated and arrested by the actual Parma Police Department. After going to trial and getting acquitted, Novak sued the City of Parma and sevearl Parma PD officers. The city argued that qualified immunity for police prevented Novak from bringing the suit.

The 6th Circuit court’s ruling this week says that Novak does indeed have a right to sue.

“Apple pie, baseball, and the right to ridicule the government” all hold “an important place in American history and tradition,” states the court’s opinion.

Whether Novak’s page was “a protected parody in the great American tradition of ridiculing the government or a disruptive violation of state law” is still undetermined, noted 6th Circuit Judge Amul Thapar. But what was clear to the court is that Parma cops aren’t entitled to a blanket qualified immunity here.


FREE MINDS

Regressive right and illiberal left unite to quash online speech. Section 230 is “just about the most libertarian, free speech law on the books,” in the words of its original sponsor, Sen. Ron Wyden (D–Ore.). Is it any wonder that many politicians are trying to kill it?

From Tucker Carlson and Ted Cruz to Nancy Pelosi and Kamala Harris, both the right and the left have been blasting this foundational internet law for allegedly enabling “big tech” bias and a host of horrific crimes. But what it actually enables is for all of us plebes to talk without Washington having the final say.

See my new article—”Section 230 Is the Internet’s First Amendment. Now Both Republicans and Democrats Want To Take It Away)for more details on how this law came to be, why it’s so important, who is trying to destroy it, and what that would mean for all of us.


FREE MARKETS

New York just decriminalized marijuana—sort of. Yesterday, Gov. Andrew Cuomo signed a law that removes criminal penalties for possessing smaller amounts of marijuana and also expunges some pot possession convictions.

Under the new measure, set to take effect in 30 days, possessing under two ounces of pot will no longer be an offense that can get you thrown in jail or give you a permanent criminal record. But it’s still a ticketable offense that comes with a fine of $50 to $100.

“The bill does not change the charges or penalties for possession of larger amounts of marijuana,” nor does it “legalize or decriminalize marijuana dealing or sales,” points out NYUp.com. “It does add marijuana to the definition of ‘smoking’ under state health laws—meaning that smoking marijuana will be prohibited in any circumstances where smoking tobacco is also prohibited (like bars and restaurants).”


ELECTION 2020

The second round of Democratic presidential debates takes place tonight and tomorrow night. This time, the ruckus starts at 8 p.m. and will be televised by CNN (and streamed on CNN.com). The candidate roster this time around is basically the same, but with Montana Gov. Steve Bullock swapped for Rep. Eric Swalwell (D–Calif.), who dropped out of the running earlier this month.

Tonight’s debate will feature Bullock, Pete Buttigieg, John Delaney, John Hickenlooper, Amy Klobuchar, Beto O’Rourke, Tim Ryan, Bernie Sanders, Elizabeth Warren, and Marianne Williamson.

Wednesday night’s debate will feature Michael Bennet, Joe Biden, Cory Booker, Julián Castro, Bill de Blasio, Tulsi Gabbard, Kirsten Gillibrand, Kamala Harris, Jay Inslee, and Andrew Yang.


QUICK HITS

  • Stationing U.S. troops as migrant detention center guards may breach federal law, said Rep. John Garamendi (D–Calif.), and it is “certainly mission creep,” since it’s “not the role of the U.S. military to be a prison guard.”
  • Once again blending the big-goverment zeal of his Democratic counterparts and the panicky howls of 1980s church ladies, Sen. Josh Hawley (R–Mo.) is introducing a bill to ban “addictive” features on social media.
  • Sanders takes aim at Harris’ “Medicare for All” plan:

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Stossel: Free Stuff 2020

Never before have so many politicians promised to spend so much.

Among some candidates, the 2020 presidential campaign has turned into a contest to see who can offer the most “free stuff.”

So far no one has tracked their promises, so the Stossel team did.

Stossel compares the top five Democratic candidates, based on the betting odds. He looks at Sen. Kamala Harris (D–Calif.), Sen. Elizabeth Warren (D–Mass.), former Vice President Joe Biden, Mayor Pete Buttigieg, and Sen. Bernie Sanders’ (D–Vt.) expensive promises, issue by issue: education, health care, climate, welfare, and… well, let’s make it a contest! There’s a grab-bag round too.

Some examples of what the Democrats would spend if they become president:

Sanders wants to “eliminate student debt” and “make public colleges and universities tuition-free.” Sounds nice, but he seldom mentions the $220 billion price tag.

Mayor Buttigieg promises to spend $31.5 billion to give teachers a pay raise. Kamala Harris likes that one too.

Senator Harris also wants the government to pay your rent if it’s more than 30% of your income. The cost? $94 billion a year.

The Democratic candidate promises keep on coming: Medicare for All, $3 trillion.

Increase Food Stamps, $10.8 billion.

Expand National Service, $2 billion.

A federal job guarantee, $158 billion.

But the Republican incumbent is a big spender too, says Stossel. Since Donald Trump became President, spending has risen about $500 billion.

But the Democrats want to spend much more. Stossel’s tally includes more than 50 spending proposals.

Watch to see who wins the title of “Biggest Spender.”

Stossel says, no matter who wins, taxpayers are the losers.

Since we completed this video Friday, Senator Harris proposed her own “Medicare for All” plan. She says it will be cheaper than Senator Sanders’ version, but as of now there is no independent calculated cost. She also proposed a new plan to spend $75 billion on minority-owned businesses and historically black colleges.

The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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Anti-Tech Wave Grows with New Justice Department Antitrust Efforts

The U.S. is moving against big tech in a big way. Last week, the Department of Justice (DOJ) announced a broad antitrust investigation into whether unnamed technology companies have engaged in anti-competitive activities. This is in addition to DOJ’s joint antitrust efforts with the Federal Trade Commission (FTC); DOJ is tackling Apple and Google, while the FTC has Amazon and Facebook. The FTC formed a separate task force to monitor competition in the technology industry earlier this year. Oh yeah, and the House Judiciary Committee is sniffing around for Silicon Valley shenanigans, too.

So far, the DOJ has not named names. Since “search, social media, and some retail services online” were specifically mentioned, it’s a good bet that Google, Facebook, and Amazon are among the targets. We can probably throw in the Apple App Store, as well.

We also don’t know whether the investigations will be voluntary, or if DOJ will exert authority to compel discovery on heretofore unknown dirty deeds. So it’s hard to say exactly what DOJ has up its sleeves.

But if the Trump administration’s posture towards big tech is any indication, we should expect a fairly aggressive examination of possible anti-competitive actions.

During his nomination hearing, Attorney General Robert Barr stated that he wondered “how such huge behemoths that now exist in Silicon Valley have taken shape under the nose of the antitrust enforcers” and advocated for “vigorous enforcement of the antitrust laws to preserve competition.” In particular, Barr worries that large platforms enjoy network effects so substantial that “particular sectors could essentially be subsumed into these networks.”

The writing was always on the Facebook Wall. It’s true that until fairly recently, most technology companies had something of a neon halo about them. We used and enjoyed social media platforms every day, those harmless and amusing outlets for comradery and cat-posting. Amazon gave us great cheap junk, Apple had the coolest products. Google gave us, well, everything else.

But how the mighty fall. After a few bonkers elections and a mass awakening to just how all those “free” services make money, America now calls for tech companies’ heads.

It’s an illustration of general U.S. attitudes to antitrust. On paper, enforcers like the DOJ and FTC are only supposed to intervene when a firm restricts output and raises prices, or when it possesses an “essential facility” available nowhere else. In other words, officials should get involved where consumers are demonstrably harmed, as gauged by measurable economic outcomes like price increases or output restriction.

In practice, however, many call for firms to be broken up anytime we feel they are getting too big. We forget today, but at one point, the hot talk in tech was that MySpace and AOL were due for the antitrust treatment. Today, these names do not conjure images of anti-competitive activity because they were successfully competed against—by Facebook and Google. Yet their actions remain the same.

Under the “market structure” conception of antitrust, it’s not so much about protecting consumers as it is about protecting competition—that is to say, protecting current and future competitors.

It’s hard to argue, for instance, that Windows users were harmed by the free Internet Explorer browser that came preinstalled on their computers. Microsoft’s aggressive behind-the-scenes campaign to convince vendors to snub alternative browsers didn’t really affect user experience. If you wanted a different browser, you could just use IE to download another browser. But competitors like Netscape clearly were harmed by such structural defaults, which is why DOJ eventually intervened.

Microsoft was big and seemed unassailable. Of course, it wasn’t, but not along the dimensions over which ’90s antitrust regulators so agonized. The fall came, to regulators at least, out of nowhere: Apple’s streamlined strategy and the open source operating system Linux dealt major blows to Microsoft’s seemingly untouchable positions in the personal computing (hello, iPhone) and server markets. Browsers were the wrong battle—dirty as the fight may have been for poor Netscape—and today Microsoft browsers are considered a bit of a joke.

In a similar way, successes spelled trouble for tech titans. It was only a matter of time until they got big enough and unpopular enough to draw antitrust scrutiny. It’s almost tautological: The most competitive companies in hindsight become the most “anti-competitive.” (Is there a major company who got there by playing nice?) You can always find something to point to as an unfair and unbreakable barrier to competition.

It doesn’t sound great to say you are breaking up firms to benefit other companies. Today, aggressive antitrust enforcement is couched in terms of “innovation.” It’s not that we are shoring up businesses that couldn’t keep up. We are taking down today’s titans so that they little guys can get a crack at them. With more breathing room, tomorrow’s paradigm shifts can sooner take flight today. Some go so far as to claim that without the DOJ’s antitrust case tying up Microsoft, Google would have never taken off.

The Justice Department’s statements on their investigations hew to this new conception of antitrust as a harbinger of tomorrow’s innovation. Its press release singles out practices that have “reduced competition” and “stifled innovation” for scrutiny. Last on that list, by the way, are activities that “otherwise harmed consumers.”

We’ll have to wait and see what the DOJ will dig up as evidence of anti-competitive behaviors. Perhaps they will discover some truly heinous deeds. Or maybe something fairly benign will be touted as proof that online platforms’ gains were ill-gotten, or that their very size is on its face is bad for competition. After all, antitrust regulators will want to come up with something.

They walk a fine line. It’s not hard to imagine scenarios where actions that are bad for competitors are also bad for consumers. Let’s say Microsoft’s browsers blocked users from downloading alternative options. That would clearly limit choice and competition, and would probably stall browser innovation as well. But it’s not always the case that what makes competitors’ jobs harder makes consumers’ lives worse.  Regulators should keep the distinctions clear.

The big guys are ready for a fight, and their lawyers are surely fashioning preemptive rebuttals to defend their most notorious business practices from antitrust affronts. It’s how the game is played.

Should we expect these antitrust efforts to do much for innovation? If the past is any guide, the Davids that will take down our Goliaths are probably putting together their slingshots as we speak, far from the eyes of antitrust regulators. And then the next decade’s Justice Department will puzzle over just how those new giants got where they are in the first place. After all, if they had actionable information on what the next major markets will be, they might be in a different line of work.

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If Bill Barr Brings Back Federal Executions, Innocent People Will Die

Why should we be concerned about U.S. Attorney General Bill Barr’s proposal last week to resume federal executions for some particularly horrendous crimes? Because there’s no reason to believe that the flaws that originally cast doubt on capital punishment have become less of an issue.

In his announcement of resumed executions, Barr focuses on “bringing justice to victims of the most horrific crimes.” He wants to begin with prisoners “convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society—children and the elderly.”

There’s no doubt that we’re discussing horrific acts. But can we be sure that we’ve arrested, tried, and convicted the actual perpetrators?

The proportion of death row inmates executed to those set free isn’t exactly encouraging. Since 1972, 1,500 people have been executed in the United States. Over that same time, “166 former death-row prisoners have been exonerated of all charges and set free,” according to the Death Penalty Information Center.

Extrapolating from the cases in which death row inmates were proven to have not committed the crimes of which they were convicted, a 2014 study estimated that 4.1 percent of all death row inmates could be exonerated. “We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States,” the authors added.

That’s an awful lot of people cooling their heels behind bars for crimes they didn’t commit.

When former Illinois Gov. George Ryan declared a moratorium on executions, in 2000, he decried his state’s “shameful record of convicting innocent people and putting them on Death Row. He said he wouldn’t allow executions “until I can be sure that everyone sentenced to death in Illinois is truly guilty.”

Capital punishment was formally abolished in Illinois in 2011, inspired by a Chicago Tribune exposé of the human error and malice plaguing the criminal justice system. In the years leading to Ryan’s moratorium, 13 state inmates condemned to die had been exonerated instead. Nobody knows how many prisoners who had been executed had not really committed the crimes for which they’d been convicted.

Nothing quite so earthshaking brought about the unofficial suspension of federal executions in 2003, but similar concerns have dogged the practice for every jurisdiction in the country.

Those concerns about getting it right—imprisoning and killing only criminals guilty of the crimes for which they were convicted—continue to cast a shadow over Barr’s plan to resume capital punishment, starting with judicial killings of five inmates.

Nationally, the death penalty was struck down by the U.S. Supreme Court in 1972’s Furman v. Georgia over concerns that it was applied in a capricious and discriminatory manner. Further limitations followed in later court cases. And jurisdictions that wished to retain execution as an option reworked their laws in the years that followed to bring their administration of capital punishment into line with the Supreme Court’s standards.

The death penalty was restored at the federal level in 1988, and three executions followed: Timothy McVeigh, in 2001: Juan Raul Garza, in 2001; and Louis Jones, in 2003. Without fanfare, the Jones execution was the last such killing by the federal government until—it seems—whatever results from Barr’s recent announcement.

The quiet federal moratorium occurred as the criminal justice system across the country came under renewed scrutiny. News reports and independent investigators revealed a litany of tales about incompetent legal representation, lying police, prosecutors suppressing evidence, mentally challenged defendants, dubious crime lab standards, and more. Using relatively new DNA evidence, the Innocence Project boasts of exonerating 365 convicts to-date.

Some of the flaws in the criminal justice system that lead to false convictions are probably inevitable in anything designed by and for imperfect human beings. Others seem fixable, but remain broken because of a lack of political will. In either case, that’s plenty of reason to hesitate before imposing an irrevocable penalty on people who might well have been misidentified or even railroaded into convictions for crimes of which they are innocent.

At least something can be done to make things right for the wrongfully convicted and imprisoned. “The federal government, the District of Columbia, and 35 states have compensation statutes of some form,” notes the Innocence Project. These jurisdictions offer (often inadequate) monetary compensation, public apologies, counseling, and assistance in reentering society.

In other cases freed inmates have to fight in court to win some redress for the years of their lives stolen from them by the state. But at least they’re free and often gain public sympathy.

What do we have to offer innocent people killed by the state because of false convictions for crimes? A lovely bouquet won’t do it.

While the evidence suggests that the system is pretty good about getting it right, we do get it wrong. We have lots of room for improvement in the system, including better standards for forensics labs, disincentives to cops to lie and to prosecutors to conceal exculpatory evidence, better legal representation for defendants, and so much more. All of that needs to be done to improve a system that has the inherent power to destroy lives as completely as the the worst criminals it confines do.

Even then, however, we’ll never get it completely right. There’s always going to be room for malice, incompetence, and corruption. That’s why we should punish people for committing the sort of horrendous crimes that Barr highlights while leaving ourselves room to make good when we inevitably convict innocent people.

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How to Read a Legal Opinion—The Article, and Now the Podcast

Regular Volokh Conspiracy readers may be familiar with my 2007 short essay, How to Read A Legal Opinion: A Guide for New Law Students.   For those who like to listen instead of read, I thought I would flag my recent podcast discussion about the article —  and the broader questions of how 1Ls should think about learning law and law school exams.  You can listen here: How to Read a Legal Opinion.

The podcast is 25 minutes long.  It is hosted by law professor Leslie Garfield Tenzer as part of her Law to Fact podcasts on legal education.

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Brickbat: Suspicious Minds

The Chicago Police Department has apologized after a local newspaper reported it had been running background checks on people who speak at meetings of the Chicago Police Board. Cops have been searching not only police databases, looking for outstanding warrants and criminal history, but also the social media accounts of speakers. They had been doing this since at least 2013. In a statement, the department apologized for “any mistrust that this practice may have caused.”

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Will Silicon Valley have to choose between end-to-end crypto and shutting down speech it hates?

Our guests this week are Paul Scharre from the Center for a New American Security and Greg Allen from the Defense Department’s newly formed Joint Artificial Intelligence Center. Paul and Greg have a lot to say about AI policy, especially with an eye toward national security and strategic competition with China. Greg sheds some light on DOD’s activity, and Paul helps us understand how the military and policymakers are grappling with this emerging technology. But at the end of the day, I want to know: Are we at risk of losing the AI race with China? Paul and Greg tell me not all hope’s lost – and how we can retain technological leadership.

In what initially seemed like a dog-bites-man story, Attorney General Barr revived the “warrant-proof” encryption debate. He brings some thoughtful arguments to the table, including references to practical proposals by GCHQ, Ray Ozzie, and Matt Tait. Nick Weaver is skeptical toward GCHQ’s proposal. But I think the future of the debate will be driven by Facebook’s apparent plan to drastically undermine end-to-end encryption by introducing content moderation to its encrypted messaging services. I argue that Silicon Valley is so intent on censoring its users that it is willing to sacrifice confidentiality and security (at least for anyone to the right of George W. Bush). News Roundup newcomer Dave Aitel thinks I’m wrong, at least in my attribution of Facebook’s motivations.

Mieke Eoyang, another News Roundup newcomer, brings us up to date on all the happenings in election security. Bob Mueller’s testimony brought Russian election meddling to the fore. His mistake, I argue, was testifying first to the hopelessly ideological House Judiciary Committee. Speaking of Congress, Mieke notes that the Senate Intel Committee released a redacted report finding that every state was targeted by Russian hackers in the 2016 election – and argues that we’re still not prepared to handle their ongoing efforts.

Congress is attempting to create a federal election security mandate through several different election security bills, but they likely will continue to languish in the Senate, despite what Mieke sees as a bipartisan consensus. Meanwhile, Director of National Intelligence Dan Coats, now on his way out, has established a new office to oversee and coordinate election security intelligence. Nick adds an extra reason to double down on election security: How else can we convince the loser that he is indeed the loser?

In other news, NSA is going back to the future by establishing a new Cybersecurity Directorate. Dave sheds light on the NSA’s history of reorganizations and what this new effort means for the Agency. Dave and I think there’s hope that this move will help NSA better reach the private sector – and even give DHS a run for its money.

I also offer Dave the opportunity to respond to critics who argued that his firm, Immunity Inc., was wrong to include a version of the BlueKeep exploit in its commercial pentesting software. The long and the short of it: If a vulnerability has been patched, then that patch gives an adversary everything they need to know to exploit that vulnerability. It only makes sense, then, to make sure your clients are able to protect themselves by testing exploits against that vulnerability.

Mieke brings us up to speed on the cybercrime blotter. Marcus Hutchins, one of Dave’s critics, pled guilty to distributing the Kronos malware but was sentenced to time served thanks in part to his work to stop the spread of the WannaCry ransomware. Mieke says that Hutchins’s case is a good example that not all black hat hackers are irredeemable. I note that it was good for him that he made his transition before he was arrested. Dave and Nick support the verdict while lamenting how badly hackers are treated by US law.

We round out the News Roundup with quick hits: Facebook had a very bad week, not least because of the multibillion dollar fine imposed by the FTC; the Department of Justice is going to launch a sweeping antitrust investigation into Big Tech; there was a wild hacking conspiracy in Brazil involving cell phones, bribes, and carwashes; Equifax reached a settlement with the FTC regarding its epic data breach. Speaking of which, we make a special offer to loyal listeners who can now claim a $125 check (or free credit monitoring, if you really prefer). Just go here, and be sure to tell them the Cyberlaw Podcast sent you. Oh, and an anti-robocall bill finally made it through both houses of Congress.

Download the 274th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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Rand Paul Takes an Unpleasant Cue from Trump, Offers Rep. Ilhan Omar Flight to Somalia

Sen. Rand Paul (R–Ky.) took a cue from President Donald Trump on Saturday, telling Breitbart News that Rep. Ilhan Omar (D–Minn.)—who has been critical of American foreign and domestic policy since being elected to the House in 2018—should visit her birth country of Somalia in order to learn a thing or two.

“While I’m not saying we forcibly send her anywhere, I’m willing to contribute to buy her a ticket to go visit Somalia,” Paul said. “I think she can look and maybe learn a little bit about the disaster that is Somalia—that has no capitalism, has no God-given rights guaranteed in a Constitution, and has about seven different tribes that have been fighting each other for the last 40 years. And then maybe after she’s visited Somalia for a while, she might come back and appreciate America more.”

Paul’s comments are a sanitized version of remarks recently made by President Trump, in which he insinuated that the “Squad”—made up of Reps. Omar, Alexandria Ocasio-Cortez (D–NY), Rashida Tlaib (D–Mich.), and Ayanna Pressley (D–Mass.)—should go back whence they came.

“Why don’t they go back and help fix the totally broken and crime infested places from which they came,” he mused in a subsequent tweet. Except, every congresswoman in that bunch, with the exception of Omar, was born in the U.S.

The insinuation that the “Squad” should abstain from criticizing America simply because they have foreign ancestry drew criticism from across the political spectrum. Which makes sense: Go far enough back, and all of us are descended from people who were born outside the U.S. Yet we never hear modern presidents or members of Congress tell their political opponents that they should “go back” to Ireland, Italy, Poland, or Germany.

You’d think Paul, himself a longtime critic of American domestic policy on matters both economic and social, would know better than to boost a xenophobic line of attack. But the formerly libertarian-leaning senator has increasingly cozied up to Trump.

Born in Somalia, Omar immigrated to the U.S. at age 12. She is now 37. Her criticism of American capitalism does not make her less of a patriot, it just makes her wrong. The “love it or leave it” argument deployed by Trump, and now Paul, is a cheap tactic for marginalizing people who say things we don’t like. While Trump appears unshameable, Paul should remember what it’s like to have his patriotism questioned over policy: When he was running for Senate in 2010, the Kentucky Senate passed a resolution declaring him “outside the mainstream of American values” over his critique of the Civil Rights Act of 1964.

In that sense, Paul and Omar have a bit in common. Both are students and critics of American power. “She was almost like a cliché of a civic-minded new American,” Larry Jacobs, one of Omar’s professors at the University of Minnesota, told The New York Times in December. “She would quote the Declaration of Independence, he said, asking, ‘Why have we come up short?'”

Omar, of course, is not above firing off incendiary tweets and making her own boneheaded comments. On Monday, for instance, she retweeted a message expressing support for Paul’s assaulter, who was sentenced to 30 days in prison after attacking him at his Kentucky home.

Endorsing physical assault over a difference of opinion is its own brand of crass. Yell at Omar for that. But don’t forget to yell at Paul, who knows where the moral high ground is, and once upon a time, sought to stand on it.

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