Tag: in-the-news

Reason works with a contractor who lives in small-town Siberia. As Vladimir Putin’s tank convoy rolled toward Kyiv in early March and a flurry of economic sanctions were imposed on Russia by public and private actors, I found myself asking if we could still pay our guy, whether we should do so in bitcoin, and what the consequences might be if we did.

Most of this issue of Reason was already edited when Russia’s invasion of Ukraine started, so this is the only place in these pages you’ll see mention of the potentially earth-shattering conflict involving a nuclear nation. (For breaking news, check out reason.com.)

But as this magazine goes to press, the most urgent concern is not whether the U.S. will send troops to the front lines of a foreign war. President Joe Biden has categorically ruled that out under current circumstances, for good reason and to good effect.

Instead, a whole host of other potential interventions—most of them cultural or economic—are forcing global politicians and businesspeople to do an even more complicated moral calculation.

There’s undeniably something inspiring about seeing a global consensus against a violent occupation emerge in real time. But which boycotts, cancellations, and sanctions are defensible and well-targeted against the state actors who are responsible for the attack on Ukraine, and which are overly punitive and possibly counterproductive against ordinary Russians, many of whom don’t support Putin’s actions?

The World Taekwondo organization’s decision to withdraw the honorary 9th dan black belt it conferred on Putin in 2013, for instance, is extremely defensible, narrowly targeted, and frankly hilarious. Less clearly worth it is the accompanying edict not to “organise or recognise Taekwondo events in Russia and Belarus.”

On the other end of the spectrum are the clearly indefensible actions of the vandals who shattered windows and tore down a flag outside of Russia House, a restaurant across the street from Reason‘s D.C. office that isn’t even owned by Russians. But surely if the same restaurant declared all proceeds would be going to support the Russian war effort, it would be laudable for a hungry customer to walk 15 minutes to the Ukrainian-owned D Light Cafe instead?

In both of these examples, the stakes are relatively low, which makes the moral math easier. But in many other cases the stakes are very high indeed, even as the gray area is vast and murky.

Former U.S. ambassador to Russia Michael McFaul was roundly denounced on Twitter in early March for his overly simplistic claim that “there are no more ‘innocent’ ‘neutral’ Russians anymore. Everyone has to make a choice—support or oppose this war. The only way to end this war is if 100,000s, not thousands, protest against this senseless war. Putin can’t arrest you all!” But this same thinking shapes the criticism of Valery Gergiev, a Russian conductor who was fired from his position with the Munich Philharmonic for refusing to “distance himself…from the brutal war of aggression which Putin is leading.” Surely brave acts of civil disobedience are not always morally mandatory, even if they are praiseworthy.

Mere days after the war began, Nike and Apple have closed their online stores in Russia. MSC and Maersk, the world’s biggest shipping lines, have suspended container shipping to and from Russia. Boeing and Airbus have stopped supplying parts and support to Russian airlines and cut off access to manuals required for repairs. The energy sector has the most to lose in cutting ties with the fossil fuel giant, but even Shell and BP are literally abandoning the field.

There is no doubt that locking top Russian banks out of the SWIFT payment system will put the squeeze on Putin and his oligarchs. And Visa and Mastercard have blocked those sanctioned Russian financial institutions from their payment networks as well. But the per capita GDP in Russia is half of what it is in the United States; depending on skyrocketing inflation and other economic cascades, the rest of the Russian population could well be choked to death before Putin’s intimates start to feel a pinch.

Then there are the economic systems designed to work outside of the state to begin with. Ukrainian Vice Prime Minister Mykhailo Fedorov has asked digital asset platforms to freeze all Russian users’ blockchain addresses. And in an interview with MSNBC’s Rachel Maddow, former Secretary of State Hillary Clinton declared herself “disappointed” that not all crypto exchanges were complying, complaining that they were “refusing to end transactions with Russia for some philosophy of libertarianism or whatever.”

Among those exchanges still serving Russians are Binance and Kraken, which have argued that most of those users are against the war and that to freeze their assets due to state action would be against the ethos of the crypto movement.

The list goes on and on. DirecTV should absolutely not be required to carry the Russian state propaganda network RT. Meanwhile, Netflix has refused to carry RT within Russia itself, and the likely result is that the streaming service will be blocked there. Disney has preemptively withdrawn cinematic releases from Russian theaters. Again: Will cutting off regular Russians from outside media and global markets help or hurt?

This question haunts the debate over state-imposed economic sanctions as well. Iran, Cuba, and North Korea have been under U.S. sanctions for several decades, to little geopolitical effect and at massive costs to the ordinary people who live under those authoritarian regimes. (Not to mention the costs to American consumers and producers.) The Russian sanctions are harsher and reach deeper into the economy than previous sanctions have done, but citizens being fed propaganda may well decide, with some justice, that they are the targets of a global conspiracy with the predictable effect on nationalism and expansionism.

As an editor, one thing I think a lot about is when to use the word we. Most of Reason‘s writers are American. Most of our readers are American. But one of our fundamental beliefs is that governments and citizens are different. And then there’s our Russian contractor.

“We” do not go to war; governments go to war—sometimes conscripting an unwilling “we” to go along. “We” do not buy tanks; governments take our money under threat of imprisonment and spend it on munitions. “We” do not exclude refugees; governments block borders and ports with armed agents to turn people away regardless of whether a citizen would welcome them into her home.

Government is not, in fact, simply the name we give to the things we choose to do together, as former Rep. Barney Frank (D–Mass.) is dubiously reputed to have said. Even in the pages of Reason, these terms can get dodgy. We’ve been known to slip up and use “the United States” as a synonym for “the U.S. government.” But it isn’t.

One of the best things about living in a liberal democracy is that the space between citizens and the state is safeguarded (not always as well as I’d prefer, to be sure). But in Russia, for decades if not centuries, that space has been crowded out, squeezed down, crushed beneath a boot.

That’s no accident. Due to Russia’s deeply, corruptly entangled public and private sectors, it’s nearly impossible to tell where the state ends and markets begin. Authoritarian regimes like it that way, because they treat citizens as means, not ends in themselves—as cannon fodder and cogs in a managed economic machine, not free people deserving of rights and dignity. As a consequence, private citizens who just want to go about their business will suffer horribly for the crimes of their government.

Many punitive actions taken by countries and companies are driven by intuition rather than principle. There is a sense, admirable in itself, that to be complicit with a regime willing to stage a violent occupation is wrong. But it is also deeply wrong to be complicit in the economic destruction of innocent civilians, millions of whom reside within Russia’s borders.

The post Canceling Putin, Canceling Russians appeared first on Reason.com.

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An audit has found that nearly $900,000 of about $1.13 million in COVID-19 relief funds received by the city of West Haven, Connecticut, were spent on ineligible items or lacked sufficient documentation. Auditors did not examine some $600,000 in COVID-19 funds received by the city that are the subject of a federal fraud prosecution. Former Democratic state Rep. Michael DiMassa, who was an administrative assistant to the city council, and his former business associate John Bernardo were charged with wire fraud in October. Prosecutors said they stole $600,000 in COVID-19 funds by submitting fraudulent invoices to the city through a company they formed.

The post Brickbat: Bookkeeping Error appeared first on Reason.com.

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President Biden is among the many Western leaders who have denounced Vladimir Putin as a war criminal because of the atrocities Russian forces have committed in their war of aggression against Ukraine. There is good reason for that condemnation. Putin and other Russian leaders are clearly guilty of horrific war crimes, on a massive scale. But it is also true that it’s likely to be difficult or impossible to prosecute them, barring a regime change in Russia. War crimes proceedings might still have some real, but limited value, however.

Proof of war crimes is overwhelming. In addition to the murder of civilians, mass deportations, and rampant pillaging committed by Russian troops, there is the fundamental fact that Putin’s decision to launch the war in the first place was a crime of enormous proportions. I summarized the reasons why on the day before the invasion began:

The law is simple. There are few, if any, more fundamental violations of international law than seizing other nations’ territory by force for the purpose of annexing it or ruling through a puppet regime. The United Nations Charter specifically forbids “the threat or use of force against the territorial integrity or political independence of any State.” That description fits Russia’s assault on Ukraine to a T.

The charge of waging wars of aggression was also one of the main accusations brought against the Nazi defendants in the Nuremberg trials; the Nuremberg tribunal ruled that starting a war of aggression is “the supreme international crime.” Putin’s rationales for seizing Crimea in 2014 and later the Donbass region of Eastern Ukraine are very similar to those Hitler offered for his attacks on Poland and Czechoslovakia: the supposed need to protect co-ethnic populations facing largely trumped-up threats (ethnic German minorities in Poland and the Sudetenland in Hitler’s case; Russian-speaking populations in Ukraine in Putin’s case)…

If Putin now tries to take more of Ukraine, it will just be an expansion of his government’s already grossly illegal aggression. The  best historical analogy would be Hitler’s shift from taking the Sudetenland (the part of Czechoslovakia with a large German population) in 1938 to occupying all of Czechoslovakia in 1939.

Later in the same post, I also explained why Russia’s aggression cannot be defended on moral grounds that could potentially justify engaging in illegal action.

Several Nuremberg defendants got the death penalty at least in part because of their role in planning and executing wars of aggression. Putin and his high-level collaborators are  guilty of the same type of crime. I do not claim that Putin and his minions are as bad as the Nazis  overall. So far, at least, they have not committed genocide and mass murder on anything like the same scale. But they are comparable when it comes to the crime of initiating a war of aggression, one that has no remotely plausible legal or moral justification.

If you reject the death penalty on principle, you at least have good reason for concluding that Putin and other high-ranking Russian officials responsible for the war deserve whatever you think is the most severe permissible punishment. Perhaps life imprisonment without parole, for example.

Some of the atrocities committed by Russian forces in Ukraine may be the rogue actions of ill-disciplined units acting on their own. But others – especially the mass executions and deportations of civilians – are systematic enough that they are likely the result of orders from on high, probably all the way from the Kremlin. Forcible displacement of civilians – the most clearly centralized Russian atrocity – is a war crime under a range of different international laws.

Even when it comes to crimes committed by soldiers acting on their own, high-level commanders may be responsible if they failed to take proper action to curb them. As the US Supreme Court ruled in the 1946 case of In re Yamashita, (reviewing the trial of a Japanese World War II general whose men had committed horrific atrocities against Filipino civilians), a military commander has “a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery.” If a commander fails to take such appropriate measures,”he may be charged with personal responsibility for his failure to take such measures when violations result.“

The court cited various provisions of the Hague Conventions and the Geneva Convention as justification for its ruling. Russia, of course, is a signatory to these agreements. It seems pretty obvious that Putin and other Russian commanders have done little, if anything, to prevent atrocities by their forces. They are therefore likely guilty on the same basis as General Yamashita was convicted.

Admittedly, not everyone agrees that the conviction of Yamashita was just. Supreme Court Justice Robert Murphy wrote a forceful dissent arguing that he was denied proper due process. Some also argue that Yamashita was not really in a position to prevent the atrocities his troops committed.  But few doubt the basic principle that high-level commanders have at least some duty to prevent war crimes by their men.

Despite the strong – and growing – evidence against Putin and other Russian leaders, the odds against trying and convicting them for war crimes are long. So long as Putin and his minions remain in power, any such trial and punishment will be virtually impossible. For obvious reasons, Putin will never agree to such a thing.

But there is still value to pursuing the war crimes issue, including by investigating offenses and laying the groundwork for potential indictments and trials. First, there is some chance, even if small, that Putin will lose power if the war goes badly enough for him. History – including Russian history – has plenty of examples of despots who lost their grip on power after defeat in war.

Second, even if it turns out to be impossible to try and punish Putin, the same may not be true of other Russian officials and military personnel. Ukraine has taken many Russian prisoners, and some of them may be perpetrators of war crimes. Other Russian officials and military officers could potentially be arrested and detained if  they travel beyond Russia’s borders in the future. For that very reason, they might choose to avoid such travel. But that denial itself functions as  modest (though far from properly proportional) form of retribution.

Finally, emphasis on the war crimes issue can help maintain opposition to Putin’s war in the West, and continue to mobilize international opinion against it. The criminal nature of the enterprise is one of the reasons (though certainly not the only reason) why the war has drawn so much international opposition, and turned Russia into a near-pariah state.

None of these admittedly modest gains will be anywhere near as satisfying as a Nuremberg-style tribunal in which Putin and other high-ranking Russian officials get tried, convicted, and punished. Sadly, such proceedings are usually only possible if the regime in question is overthrown. But we should not let the best be the enemy of the good – even the modestly good.

The post The Case for Pursuing the Issue of Russian War Crimes in Ukraine – Even Though Putin is Highly Unlikely to Ever be Tried and Punished appeared first on Reason.com.

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Like most of us, I’ve often see this stanza, from a poem by Macaulay; indeed, it’s been often quoted in recent weeks, with regard to the valor of the Ukrainians defending their nation:

Then out spake brave Horatius,
The Captain of the Gate:
“To every man upon this earth
Death cometh soon or late.
And how can man die better
Than facing fearful odds,
For the ashes of his fathers,
And the temples of his Gods.”

It’s stirring, of course, but I’ve often found it a bit distanced from us because of the last two lines: My sense is that we don’t care as much as did the Romans about the resting places of our ancestors, and those of us who are religious mostly (not entirely, but mostly) don’t view any particular temple with great reverence. It’s easy, of course, to view the last two lines as a stand-in for nation, home, family, and the like; but it takes a bit of conceptual broadening.

But just today I came across the next four lines; let me quote again the first stanza, but this time followed by those lines:

Then out spake brave Horatius,
The Captain of the gate:
“To every man upon this earth
Death cometh soon or late.
And how can man die better
Than facing fearful odds,
For the ashes of his fathers,
And the temples of his Gods,
And for the tender mother
Who dandled him to rest,
And for the wife who nurses
His baby at her breast.”

A slightly different effect, I think. There’s more to the poem, but it’s not quite as effective.

The post "Facing Fearful Odds" appeared first on Reason.com.

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4/10/1967: Loving v. Virginia argued.

The post Today in Supreme Court History: April 10, 1967 appeared first on Reason.com.

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“Society has a trust problem,” Substack co-founders Hamish McKenzie, Chris Best, and Jairaj Sethi declared in a joint statement late January. “More censorship will only make it worse.”

Substack, a leading online newsletter company that publishes the likes of polarizing journalist Bari Weiss, Brown University economist Emily Oster, COVID-19 contrarian Alex Berenson, and lefty iconoclast Glenn Greenwald, was reaffirming its hands-off approach to content moderation at a moment of intense pressure to “deplatform” controversial voices. That same week, rocker Neil Young accused Spotify podcaster Joe Rogan of spreading pandemic misinformation and demanded that the platform remove his songs if it continued to offer Rogan’s show; days later, the White House urged Spotify and all other media companies to be more “vigilant” in policing public health news and commentary.

“As we face growing pressure to censor content published on Substack that to some seems dubious or objectionable,” McKenzie and his partners wrote, “our answer remains the same: we make decisions based on principles not PR, we will defend free expression.”

Those principles have been good for business thus far. Since launching in 2017, Substack has grown to more than a million paying subscribers, boasts a valuation of $650 million, and has drawn venture capital funding from the likes of Andreessen Horowitz. The company’s pitch to writers is seductive: You set a couple of subscription tiers (the most common price points are $5 a month and free), you let Substack facilitate the payment processing in return for a 10 percent cut, and then all the customer information and content is owned not by the platform but by the creators, who can leave at any time. In 2021, flush with investment money, Substack began a “Substack Pro” program of cash enticements to lure name writers away from imploding media organizations or their own unpaid blogs, including Matt Taibbi from Rolling Stone and Matthew Yglesias from Vox. Of late, the company has taken an interest in breaking into the lucrative podcasting biz, poaching Jesse Singal and Katie Herzog’s Blocked and Reported from the market-leading Patreon payments service. (It may soon also sign a deal with The Fifth Column, which Reason‘s Matt Welch co-hosts with Kmele Foster and Michael Moynihan.)

McKenzie, Substack’s chief operating officer, is a technology journalist by training, having worked for PandoDaily and written the 2018 book Insane Mode: How Elon Musk’s Tesla Sparked an Electric Revolution To End the Age of Oil. Like his co-founders, McKenzie believes fervently that the independent-operator newsletter and podcasting model, as opposed to the cheap conflicts of social media and industrial neuroses of legacy journalism outlets, is the way out of a news and political conversation that has become distrustful and coarse. “We started Substack to improve discourse and help restore financial dignity to writers and help readers take back their minds,” he says.

Welch spoke with McKenzie in San Francisco this February.

Reason: When journalists dream of making a new startup—newspaper, website, whatever—there’s always this special idea that this will be the one where all our favorite writers will actually all get rich, too. Did you find the secret code of being a journalist who started a company that actually makes journalists money?

McKenzie: I’m relieved that there is something that can work. I feel like writers in the last couple of decades especially, but maybe forever, have been undervalued by the economy, considering how much value they give to the world. So it’s nice to see some momentum on that front.

Substack is very open about being anti-algorithm. Is there something fundamental to the advertising model that impels the algorithm?

We’re not strictly anti-algorithm. Algorithms are like equations, right? They appear all over the place and do different things. But we’re very skeptical about the consequences of organizing the media ecosystem around engagement.

You guys have said that algorithms as used by Facebook, YouTube, or Twitter produce and incentivize cheap conflicts.

I don’t think it’s the algorithms that do that; it’s their business models. These artificial intelligences arise to maximally serve the business model. The thing that the business model needs is total monopolization of your attention. Then the way that they do that is by creating these addictive experiences that amplify the most engaging stuff.

Often the most engaging stuff is not the stuff that’s necessarily conducive to sharing a common understanding of the world or encouraging good faith discussion or sharing factual material. It’s what’s provocative, what’s contentious, what divides us. That is a thing that’s broken in the world.  We want to provide an alternative.

But most of your largest and certainly most controversial signups are people who came from conflict-world on Twitter and other places. And they’re still there, as a matter of fact: Glenn Greenwald, Bari Weiss.

There’s an overlap between the people who are doing well on Substack and those who know how to play the game on Twitter and Facebook. If that becomes a long-term thing where the only people who can succeed on Substack are the people who are good at playing that game, we would not feel like we’ve done our job.

But even for those who are the good brawlers in the social media world, the quality of discussion and argument that you see on Substack is very different to what you see on Twitter. There’s reward on Twitter for these performative arguments and outrage—instant reactions, pithy retorts, one-liners, takedowns. Whereas in Substack, you are forced to defend your positions more. You’re held to account by readers who are willing to argue with you at length in comment sections or writers who are willing to take you on, but not in a tweet in front of the whole world, in a different post, where the heat was taken out of the conversation a little bit.

Substacks are in these quieter spaces. You are reading in an environment where there’s not a whole lot of gunfire going on around your ears, and in the background you as the reader are having this more focused reading experience where you have more time to stop and think. I’m not pretending that Substack is completely insulated from the drama of social media. But I do think that the discourse that is happening on Substack is a massive improvement from the discourse that’s happening on social media.

Your profile, whether it’s intentional or not, is that you’re champions of free speech within the world of online media. You state a lot of foundational liberal values, including in that statement about censorship you made in January. How did those shared values shape the way the company was formed?

We started Substack to improve discourse and help restore financial dignity to writers and help readers take back their minds—an alternative to the attention economy. For those things to all be true, you need to create a space that is accommodating for a broad range of views and for genuine discussion, and to not have a company sitting at the top that appoints itself as the referee of what’s acceptable.

So we do hold those values. They’re reflected in the design of the system, which is that writers are in charge. They make money through subscriptions, which are trust relationships. They have to live up to the contracts they have with their readers. They have to respect and reward the attention and trust of their readers.

Substack in turn has to respect and reward the attention and trust of the writers. Writers own everything on Substack. They own their mailing lists. They own their content. They own their [intellectual property]. They could take all of that with them at any time. It’s not like Twitter, where you can’t leave Twitter and take all your Twitter followers with you.

That puts us in a good position. It’s a difficult position, because we can’t just lock the doors and keep everyone locked inside the house—we have to keep people by proving that we are worthy of their trust, that we add a lot of value.

There’s tons of internal pressure at Spotify, at least among the lower-ranking employees, to do something about Joe Rogan. How do you design a corporate culture so that you’re not faced with revolts from 25-year-olds who have different points of view about this than some of us old fogies?

Yeah, that’s…a unique challenge of this time.

Very delicately said.

Well, we’re very careful with hiring. We want to make clear what our values are, which is why we write things and publish them, explaining our stances and positions, and then hire people who are on board with that philosophy. So being careful of the hiring on that front to make sure that people know what they’re joining here, what they’re signing up for, and what they’re speaking for as well—that’s the place to do it.

We take a hands-off stance on content moderation, not because we are free speech absolutists to the death but because we genuinely think that is the best way to foster a healthy discourse.

The alternatives—the positions that are being argued by people who advocate for a more interventionist approach—in our view seem to be making the problem worse. If your only focus is misinformation, we don’t think it should be. We think your focus should be actually more about trust in society and what can be done to restore and bolster trust.

But even if your only position was that misinformation is the problem, then the things that you are currently doing to fix misinformation are having the opposite effect. Because you’re eroding trust, you’re creating more of a misinformation problem.

Speaking of the erosion of trust, COVID-19 has been a big inflection point for the media. How has that affected what you’ve done?

COVID has brought a lot of madness into the world, which has meant that some of the pressures from online chatter are more intense and difficult to deal with. But it is also like a steel rod in your back, when you can see that there is madness. It’s only more important, then, to stay as levelheaded as you can, and as cleareyed as you can, and stick to your principles.

COVID also introduced a lot more financial precarity into the world, especially in media. People who might have previously felt secure in their media jobs are more interested in looking at the alternatives, other ways of making money, other ways of connecting with their audiences, more aware that their newspaper or magazine might close at any moment.

We’ve certainly seen a ton of demand for COVID-related content. Your Local Epidemiologist, by Katelyn Jetelina, has been one of the rocketship success stories of Substack. Eric Topol has been doing his work on Ground Truths on Substack. All these voices who are being thoughtful and smart about COVID writing—they’re getting a ton of attention and a ton of play.

It felt like the media business was suffering a self-inflicted nervous breakdown after the George Floyd protests came up in 2020. A whole bunch of people, including people who are now on Substack, lost their jobs or felt pressured out by the conformity at big preexisting media institutions. Those moments seem to be made for you.

It’s not just COVID. It’s not just the Floyd protests. It’s this moment in the culture—and the moment has now been quite extended—where in certain institutions there’s more conformity of viewpoint. Whenever there’s that kind of culture, there’s an opportunity for the counterculture. Substack is where the counterculture is happening right now.

How do you then prevent yourself from being reactionary or anti-conformist?

We’ve been lucky. Since the early days of Substack, people from all walks of the political spectrum have seen value in the Substack model. It’s not a model that says you can only succeed if you’re from the left wing or the right wing. It’s agnostic in that sense.

You’re not agnostic in picking people. Surely you’re picking people, especially in the Pro program, who can be worth the investment. You’re putting a bit of a gamble on them, and not just a gamble of “Will they earn it back?” but “Will they stay?” after you’ve given them a nice year. That’s a conscious decision; you’re choosing that person. To what extent are you thinking in terms of balancing a diverse array of voices?

It’s much more a question of what is smart business-wise. Does this person have a devoted audience? Are they writing about something that people want? Are they writing about issues that are not well-covered elsewhere? Do they have a certain voice?

In the early days—this was true as well before Pro came into it, before we had any money to spend to help writers make the leap—I was on the phone and emailing people every day from all walks of life to just encourage them to think about Substack. We consider that seeding the ecosystem and getting people to learn about and fall in love with Substack, and we want that to not just be a group that represents one ideology or represents one particular position in the world. It’s not totally purist agnostic, but I would argue it’s not an editorial effort.

I was involved in the second wave of blogging. After 9/11, Henry Copeland started the Blogads company and said, “Can we try to monetize this?” People were always talking about micropayments, but it wasn’t quite congealing. In fact, a lot of people that you have got their starts in that era. Greenwald was a semi-early blogger. Andrew Sullivan too.

My intellectual upbringing is in that era. We are big fans of that era of blogging, which is why I love this. I think it’s not much of a coincidence that a lot of the voices who were prominent in those days are now prominent on Substack.

So what is the thing that finally unlocked that model? What made it physically possible to suddenly get into almost an affinity economy, where readers and podcast listeners want to declare their affection for a voice and have a mechanism to do it?

We’re a beneficiary of timing. When Greenwald was in his Salon and pre-Salon days and Yglesias was blogging in college, people weren’t going to pay for content.

When Spotify came along, people were wondering, “Are people going to pay for music?” And Netflix before that. I think people getting comfortable paying for content online just became clear and obvious at a certain point, probably not long after Netflix switched from DVDs to streaming. And then people supporting creative people who they love became a proven thing largely, I think, because of Patreon. That was not something that was really happening before. You weren’t paying individual writers you love and artists you love and podcasters you love. Patreon proved that people are willing to support creators they love or trust.

Then people started losing faith in media, and many smart people became turned off by the experience of social media—feeling bad after spending all their time reading a news feed or reading a stream of tweets, and longing for something better.

An old-media criticism of you is: “Is it really so great for the media industry to have a bunch of people in their silos doing their little thing here, and there’s no common experience?” That this isn’t good for journalism.

There are already newsrooms on Substack succeeding: The Dispatch, The Bulwark, and Persuasion. They use editors and have art departments and legal support and that kind of thing. There’s no reason that newsrooms can’t succeed on Substack. It’s easier than ever to start a media company because of Substack. I encourage more people to think about trying it.

The other thing is: We recognize that once you’re independent, you’re a sole operator and you don’t automatically get some of those benefits that you might have gotten before. Substack wants to provide some of the infrastructure and support structure and help make you less alone. So we’ve introduced programs like Substack Defender, which is a legal support program to help you get pre-publication review on touchy stories, or respond to a cease-and-desist letter from someone who’s trying to intimidate you, or gain access to Getty Images or access to designers. We have a health insurance program. These are mostly in the pilot phase, but as we learn more, we scale them out to more writers. So we are getting better at making it work for more people.

I think we’re going through a rebuilding phase here. Substack simplifies things. It breaks things down to the atomic relationship between reader and writer. You can call it “unbundling,” and lots of people do. It doesn’t mean that’s its forever state. This ecosystem has been around only four years, barely that. I’m confident that there is going to be an economy that develops around platforms like Substack and that there will be rebundling that gives rise to new types of media organizations that are better than anything that came before. There’s nothing in physics that says that’s not possible, but there’s limited imaginations that might stop people seeing that.

You’ve already been under some pressure about stuff that you run or people that you have. What is that pressure, where’s it coming from, and what is a worry about that going forward?

The perpetrators of that pressure come from all aspects of society, all over the political spectrum. I think that’s a sign of the time we live in. We’re quite determined to not let that become a distraction.

We are seeing society coming apart at the seams a little bit. We are seeing tensions being high. We’re seeing people cease to understand each other. I think a large part of this nervousness is because people look at Substack and think “Here’s the next Facebook thing or the next Twitter thing. We know that those systems have all these problems and we’re not going to let those mistakes happen again.” But that take misses that Substack is actually not very much like Facebook or Twitter at all. We’re the antithesis.

You still have guidelines that you presumably enforce. Have you ever taken a creator and said, “You’ve consistently violated our guidelines against promoting illegal activity”? What’s the amount of hands-on moderation that you’ve done?

We do have content guidelines that protect us and protect the platform at the extremes. You can’t threaten to kill people or encourage others to go out and kill people. You can’t do porn either, actually. If you’re looking for Substack to be the total hands-off purists, we’re going to disappoint you on the porn question. We stick closely to those narrowly defined things in the content guidelines, and it’s not a culture that we want to let seep beyond those.

Why no porn? Why do you hate freedom?

If Substack was a place for porn, then very quickly it could become known as just the place for porn. That’s not the kind of ecosystem we’re trying to build. We’re trying to build something more focused on discourse than whatever porn achieves.

If you’re successful enough, you’re going to be hauled in front of Congress to explain why you have Alex Berenson or whomever on your site. It’s going to be a constant pressure. Do you think you’ll be immune to that? Do you think architecturally somehow you’ve protected yourself?

Those problems are going to increase and intensify as we get bigger, as more things of consequence happen on Substack. It’s unavoidable. But I do think that the flavor of problems that we experience will be qualitatively different to the ones we’ve seen on the giant social media platforms. This is a system where the discourse and temperature are a lot calmer and lower heat. And it might take some time for people to come to that understanding. Once people get around to realizing that, it’ll be clear that this is a much better architecture. It doesn’t mean that we’re not going to have any of those problems, but it’s going to be different than social media because we consciously designed Substack to be an alternative to the attention economy.

We talked about Joe Rogan. What is the lesson of the Spotify kerfuffle? What is he teaching old-media people who are freaking out about him, new-media people who are creating their own things, Substack, etc.?

I think one really important lesson is that you should own your audience, have a direct relationship with your listeners or your readers, have them on a mailing list. That makes you indestructible.

This interview has been condensed and edited for style and clarity.

The post Are Newsletters the Future of Free Speech? appeared first on Reason.com.

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On April 5, in Heights Apartments v. Walz, a unanimous panel of the US Court of Appeals for the Eighth Circuit ruled that a Minnesota state eviction moratorium (enacted for the purpose of mitigating the Covid pandemic) likely qualifies as a taking of private property requiring compensation under the Takings Clause of the Fifth Amendment. They based their ruling in large part on the Supreme Court’s June 2021 decision in Cedar Point Nursery v. Hassid, which held that temporary physical occupations of property qualify as “per se” takings, that automatically require compensation. Before Cedar Point, conventional wisdom assumed that most temporary physical occupations are subject to the complicated Penn Central balancing test, under which the government usually prevails.

Here is the key passage from the Eighth Circuit ruling:

Heights alleges the EOs effectuated physical takings because they forced landlords to accept the physical occupation of their property regardless of whether tenants provided compensation. The Walz Defendants contend that no physical taking has occurred because landlords were not deprived of their right to evict a tenant. Rather, they argue, the [governors executive orders] imposed only a restriction on when a landowner could evict a tenant, making it similar to Yee v. City of Escondido, 503 U.S. 519 (1992) (finding a rent control ordinance was not a physical taking). Since the parties briefed this issue, the Supreme Court decided Cedar Point Nursery, which is instructive in this case.

In Cedar Point Nursery, the Supreme Court determined a California regulation
requiring agricultural employers to permit “union organizers onto their property for
up to three hours per day, 120 days per year” was a per se physical taking under the
Fifth and Fourteenth Amendments….. The Court explained:

“Whenever a regulation results in a physical appropriation of property, a per se
taking has occurred.” Id. at 2072. It is immaterial whether the physical invasion is
“permanent or temporary,” “intermittent as opposed to continuous,” or whether the
government is directly invading the land or allowing a third party to do so.…

Cedar Point Nursery controls here and Yee, which the Walz Defendants rely
on, is distinguishable. The rent controls in Yee limited the amount of rent that could
be charged and neither deprived landlords of their right to evict nor compelled
landlords to continue leasing the property past the leases’ termination. 503 U.S. at
527–28. The landlords in Yee sought to exclude future or incoming tenants rather
than existing tenants. Id. at 530–31. Here, the EOs forbade the nonrenewal and
termination of ongoing leases, even after they had been materially violated, unless
the tenants seriously endangered the safety of others or damaged property
significantly….

According to Heights’ complaint, the EOs “turned every lease in Minnesota into an indefinite lease, terminable only at the option of the tenant.” Heights has sufficiently alleged that the Walz Defendants deprived Heights of its right to exclude existing tenants without compensation. The well-pleaded allegations are sufficient to give rise to a plausible per se physical takings claim under Cedar Point Nursery.

I think the Eighth Circuit is right about this. The reasoning of Cedar Point readily applies to eviction moratoria. I reached much the same conclusion myself, in a July 2021 post analyzing a takings claim filed against the now-defunct federal eviction moratorium enacted by the Centers for the Disease Control, and later invalidated by the Supreme Court on grounds unrelated to takings. The takings case against the federal eviction moratorium continues, as affected landlords are (if they prevail) still entitled to compensation for the time during which the moratorium was in effect.

Technically, the Eighth Circuit ruling isn’t a final decision on the merits. It merely reverses the trial court’s decision to dismiss the case, and remands for “further proceedings.” However, the appellate panel made clear they think the per se physical takings claim is likely to prevail.

The Eighth Circuit also reversed the trial court’s dismissal of the plaintiffs’ claims that the eviction moratorium violated the Contracts Clause of the Constitution, and that the moratorium might qualify as a taking even under the Penn Central test. By contrast, they upheld the dismissal of a claim under the Petition Clause of the First Amendment.

I will leave the Contracts Clause and First Amendment issues to experts in the relevant fields. As for the Penn Central claim, I am skeptical that it can ultimately succeed (though the test is admittedly murky. The Eighth Circuit is also more equivocal about that issue than the per se taking argument. They merely concluded that it is plausible enough to survive a motion to dismiss. But the Penn Central claim won’t matter if the courts ultimately conclude that the eviction moratorium was a per se taking under Cedar Point.

The Eighth Circuit ruling does not address the argument that an eviction moratorium intended to mitigate the spread of Covid might fall under the “police power” exception to takings liability. This issue might well come up as the case continues. I am skeptical that courts either will or should push the police power exception so far. But the boundaries of that exception are admittedly murky.

The three judges on the Eighth Circuit panel (Erikson, Gruender, and Stras) are all Republican appointees. It is possible that more liberal judges would have adopted a narrower interpretation of Cedar Point, that would exclude eviction moratoria. But I think it would be difficult to that in a way that is coherent. An eviction moratorium is pretty obviously a temporary occupation of property, as it requires the owner to accept the presence of a tenant whom he or she would otherwise have the right to remove. It thereby goes against the owner’s right to exclude, which was the central right at issue in Cedar Point. As Chief Justice John Roberts emphasized in his opinion for the Court, “[t]he right to exclude is ‘universally held to be a fundamental element of the property right.'”

I would add, also, that Cedar Point’s logic can be used to challenge conservative laws and regulations no less than left-leaning ones, like eviction moratoria. A good example of the former are state laws requiring property owners to allow guns on their land, even if they would prefer to bar them. Thus, liberal judges might have reason to doubt the desirability of adopting a very narrow interpretation of Cedar Point.

Even if property owners ultimately prevail in this case, and other takings claims against eviction moratoria, it remains to be seen how much compensation they would get. Calculating it may not be easy, and there is likely to be considerable case-by-case variation. Nonetheless, these are important cases to follow. They could well set significant precedents constraining future eviction moratoria, and other similar regulations.

NOTE: The property owners in the Cedar Point case were represented by the Pacific Legal Foundation. My wife Alison Somin works for PLF. But she has no involvement in this particular case.

 

The post Eighth Circuit Rules Eviction Moratoria are Likely to Be Takings Requiring Compensation Under the Fifth Amendment appeared first on Reason.com.

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.@ABC, this threat of violence against me by @jimmykimmel has been filed with the @CapitolPolice. pic.twitter.com/nxYX1LF2jK

— Rep. Marjorie Taylor Greene (@RepMTG) April 6, 2022

Washington Post (Eugene Scott) reports:

The post Rep. Marjorie Taylor Greene Reports Jimmy Kimmel to Capitol Police for a "Threat of Violence" appeared first on Reason.com.

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From Chief District Judge Philip Brimmer (D. Colo.) on March 31 in Sgaggio v. De Young, largely reversing a contrary Magistrate Judge opinion (which I blogged about here). Note that the Firearms Policy Coalition engaged me to file an amicus brief in the case, together with the FPC’s Matt Larosiere (see here for the FPC’s press release). From the Chief District Judge’s opinion:

The City’s Police Department (the “Police Department”) executed a warrant to search a residence, which residence was unrelated to plaintiff, for the unlawful possession of marijuana. On or about July 19, 2018, the Police Department posted about the execution of the warrant on its public Facebook page. That day, a Facebook user posted a video about the execution of the warrant with the caption “[d]ad tells a story of the house being raided for MMJ.” In response to the Police Post, plaintiff posted on the Police Department’s Facebook page a link to the Woodland Park Video with the caption “[y]ou target sick kids to get your overtime pay. . [sic] That’s why you are a pig.”

Plaintiff later commented, “[w]hy did you punk ass pigs remove my post. This is a pubic [sic] forum. I’m going to sue the chief of police, the city of Woodland Park, and whatever punk ass bitch remove my post. Your actions are unconstitutional and violation of federal law 18 usc 241,242. . [sic] see you pigs in Federal court. . [sic]”; posted a link to the Woodland Park Video with the caption “[y]ou target sick children to Enrich [sic] officers [yellow police officer emoji] with overtime pay. . [sic] dirty ass cops”; and commented, “Tyler Pope they violate the constitution daily. All too stupid to understand the oath they took. We the people will bring these terrorists into federal court.”

Plaintiff’s accusation that the police were targeting sick kids was in reference to the execution of the warrant. Plaintiff’s posts on the Police Department’s Facebook page violated the Police Department’s social media policy, and Chief De Young temporarily hid plaintiff’s posts from public view. Plaintiff was restricted temporarily from posting on the Police Department’s Facebook page.

Plaintiff also posted the Woodland Park Video to the City’s Facebook page with the caption “[a]sk the city how they treat sick kids.” Plaintiff’s post on the City’s Facebook page contained words that were filtered in accordance with the City’s Page Moderation Policy, and plaintiff alleges this post was removed.  Following the removal of his posts from the Facebook pages, plaintiff did not attempt to republish the posts on any other Facebook page, although he had the option to do so, or on another social media platform….

In his complaint, plaintiff asserts that defendants’ decision to remove his posts and block him from “government controlled public forums is a content-based or viewpoint-based restriction on speech, or both,” in violation of his First Amendment rights….

The magistrate judge recommends granting defendants’ motion for summary judgment because plaintiff used the “obscene” words “‘pig,’ ‘terrorist,’ ‘ass,’ and ‘bitch’ to refer to the police, and he baselessly and inaccurately accused the police of targeting sick children for personal profit.” The magistrate judge explained that the evidence indicates that plaintiff’s speech violated “policies … prohibiting the use of indecent and obscene language.” She also concluded that individuals who criticized the police with “non-obscene language” did not have their posts removed.

The court concluded (reversing the Magistrate Judge’s opinion on this point) that the speech wasn’t obscene:

Plaintiff objects to the magistrate judge’s conclusion that his speech was obscene. Docket No. 26 at 2 (“Our forefathers would piss their damn grave [sic], if they knew a Magistrate [sic] in 2021 would consider, Pig [sic], terrorist, ass, and bitch to be obscene. In 1776 none of these words were obscene.”). On de novo review, the Court agrees with plaintiff. “Obscene speech” is “sexually explicit material that violates fundamental notions of decency.” None of the words that plaintiff used in his posts were depictions of sexual conduct. Moreover, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”  “Speech is often provocative and challenging…. [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Defendants made no argument that plaintiff’s speech produced a “clear and present danger.”

{Moreover, to the extent defendants argue in their motion that plaintiff’s speech was indecent, rather than obscene, and thereby could be removed even if it did not depict sexual conduct, defendants provide no authority on the regulation of indecent but not obscene speech, and the Court declines to address the issue.} …

The magistrate judge concluded that defendants’ restriction of plaintiff’s speech “satisfie[d] strict scrutiny” because the restriction “served a compelling government interest,” namely, “protect[ing] children from obscenity,” and was “narrowly tailored” because others’ posts were not removed…. [But r]egardless of whether protecting children from profanity or offensive language is a compelling government interest, defendants have not shown that the policy—which was not produced or excerpted in defendants’ summary judgment motion or in response to plaintiff’s objection—is narrowly tailored to serve this interest. There is no indication which words the policy would delete or flag in a comment or post or why the non-obscene words plaintiff used are barred under the policies. Moreover, the undisputed facts indicate that plaintiff’s post “[a]sk the city how they treat sick kids” was also removed, apparently pursuant to the social media policy….

And the court also disagreed with the Magistrate Judge’s conclusion that Sgaggio wasn’t protected by the Free Press Clause:

In his complaint, plaintiff asserts that defendants’ removal of his “press publications” and blocking or banning plaintiff from their Facebook pages violates plaintiff’s First Amendment free press rights.

As FPC notes, “[t]he liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets…. The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Moreover, the Court has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”  “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

The magistrate judge recommends granting defendants’ summary judgment motion and dismissing plaintiff’s free press claim because “[p]laintiff did not make the Facebook posts in question as a member of the press.” The magistrate judge noted that “[p]laintiff’s only post on the City’s website repeated … inaccurate statements,” and plaintiff “lack[s] … journalistic experience and expertise,” “did not perform any type of research that a journalist would perform and the posts do not reflect an editorial process,” “did not contact any persons or organizations involved in the execution of the search warrant,” “does not know what the proper execution of a search warrant is,” and “does not have any degrees or professional certification or licensure related to journalism.” …

On de novo review, the Court rejects the recommendation because the accuracy of plaintiff’s posts is irrelevant, and First Amendment free press protection does not require journalistic experience and expertise, research, professional degrees, or licenses. As FPC notes, the Tenth Circuit has explained that “First [A]mendment protection should not depend on whether the criticism is in the form of speech by a private individual or publication by the institutional press,” and “[t]o withhold the protections of the first amendment from nonmedia participants in the political process would be to stand the amendment on its head without the slightest justification.” …

The Chief District Judge didn’t comment on the Magistrate Judge’s decision having been largely copied from the city’s briefs.

The post Calling Police Officer "Pig," "Terrorist," "Punk Ass," and "Bitch" in Facebook Comments Not Obscene After All appeared first on Reason.com.

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From Judge Travis McDonough’s opinion Thursday in Riley v. Hamilton County Gov’t (E.D. Tenn.):

In this atypical civil-rights case, Plaintiff Shandle Marie Riley brings several claims stemming from a traffic stop that ultimately resulted in her baptism—yes, baptism—by on-duty Hamilton County Sheriff’s deputy Defendant Daniel Wilkey. [Deputy Jacob] Goforth, who was also on duty and was present for the desacralized rite, argues that he is entitled to qualified immunity on Riley’s 42 U.S.C. § 1983 claims ….

The court concluded that Riley could go forward with:

• her claims that the baptism, which she allegedly agreed to in exchange for Wilkey’s offer of leniency, violated the Establishment Clause, because it unconstitutionally coerced religion and unconstitutionally endorsed religion (partly because it lacked a “conceivable secular purpose”);
• her claims that she was seized in violation of the Fourth Amendment for purposes of the baptism, because a seizure for those purposes was not “reasonable”; and
• her claims that Goforth could potentially be liable for failing to intervene to stop the allegedly unconstitutional actions.

The court also concluded that, if the facts were as Riley alleged, Goforth’s actions wouldn’t be shielded by qualified immunity, because they would be clearly unconstitutional. “There are genuine disputes of material fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher penalties had she refused to be baptized, and whether Goforth should have known that Riley was being coerced. This is enough to preclude summary judgment on this issue.”

An excerpt of the facts and the legal analysis:

On February 6, 2019, around 9:15 p.m., Wilkey pulled Riley over in the driveway of her ex-mother-in-law Diane Smith’s home. Wilkey approached Riley’s driver-side window and asked her what she had in the car. Riley confessed that she had a marijuana roach in her cigarette pack.

Wilkey then opened the door for Riley to exit the car and directed her to place her hands on the roof. Wilkey searched her person for about twenty seconds and then handcuffed her. Another deputy, Tyler McRae, arrived while Wilkey was handcuffing her. After a minute or so of searching, Riley turned around and spoke to Wilkey face-to-face. After they spoke, Wilkey searched her pockets and eventually directed her to wait at the front of his patrol car. Riley testified that, while searching her this second time, Wilkey inappropriately touched her crotch. Wilkey found the marijuana cigarette upon searching Riley’s person.

Wilkey searched Riley’s vehicle while she waited near the patrol car. According to Riley, Wilkey “tore [her] car apart” searching for other contraband. After searching the vehicle and talking with her at length, Wilkey removed the handcuffs. He then directed Riley to pull up her shirt and shake out her shirt and bra, which she did. Wilkey did not find any additional contraband.

Wilkey and Riley next discussed religion. They spoke for another thirty minutes, and McRae left sometime during this conversation. Riley testified that Wilkey asked her whether she had been baptized. She responded with concern that she may not be ready. But, according to Riley’s testimony, Wilkey told her “God [was] talking to him” and assured her that, if she got baptized, he would only write her a citation and she would be free to go about her business. According to Riley, Wilkey also indicated that he would speak at court on her behalf if she agreed. Riley decided to go along with this plan because she”[did not] want to go to jail.” She also “thought [Wilkey] was a God-fearing, church-like man who saw something … in [her], that God talked to him,” and testified that “it felt good to believe that for a minute.” When later asked whether Wilkey “gave [her] the option not to do this,” Riley answered:

Upon Wilkey’s suggestion, Riley went into Smith’s house to get some towels for the baptism. Riley was only in the house for a couple minutes, where she spoke briefly to her son, and asked Smith if she could borrow some towels. Smith asked her whether that was safe, and Riley replied “I don’t know. We’ll find out.” After Riley emerged from the house with towels, Wilkey issued her a citation. Riley and Wilkey returned to their respective vehicles, and Riley followed Wilkey in her car for about twelve minutes to Soddy Lake.

That night, Goforth was also on patrol. Wilkey called Goforth while driving to Soddy Lake “and requested [his] presence at the Soddy Lake boat ramp to witness a baptism.” Goforth believed Wilkey was baptizing someone who he knew personally. Goforth did not learn that Riley had been cited for a criminal offense until he arrived at the boat ramp. Goforth avers that he “asked [Wilkey] if he had thought about [baptizing Riley] in an effort to provoke reconsideration,” but that Wilkey “wanted to proceed.”

Wilkey arrived at Soddy Lake around 10:36 p.m. and waited in his car for several minutes. Once Goforth arrived, Wilkey introduced Riley and Goforth to each other, stating that Riley wanted to be baptized. In preparation for the baptism, Wilkey told Riley, “I’m going to be honest with you, …I’m going to strip down to my skivvies,” but he asked Riley to keep her clothes on. Wilkey removed all his clothing except his underwear and t-shirt, and Riley remained fully clothed except for her shoes. Wilkey baptized Riley by quickly submerging her in the water while holding her with one hand on her back and the other hand on her front.

Goforth filmed the baptism on his cellphone. Goforth avers that he did so “to protect all persons present and document the event.” There is some dispute as to where Wilkey was touching Riley during the actual baptism: Riley stated one of his arms was touching her breast, but in the video Goforth took of the baptism, it appears as though Wilkey was only holding her arm. Wilkey and Riley were in the water for approximately one minute and twenty seconds total.

Once out of the water, Riley and Wilkey hugged each other for roughly four seconds.   When asked why she had hugged Wilkey, Riley testified that she “was just trying to get the heck out of there,” and that she left immediately without talking with Wilkey or Goforth. Riley also testified that Goforth smirked at her while she was drying herself off, though Goforth denies interacting with her in any way. Riley further stated that, at that point, “[she] knew it had nothing to do with God [or] … with saving [her or] … with [anyone] being a good person. It had something to do with power and control[.]” Goforth avers that “Wilkey and Riley spoke pleasantly to each other[,] laughing and joking among themselves” and that Riley “appeared to be participating in the event voluntarily and with enthusiasm.” At 11:00 p.m., all three walked back to their vehicles. There was some conversation and laughter before Riley departed, and Goforth and Wilkey continued talking after she left….

“A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains [her] freedom of movement through means intentionally applied.” … When a suspected seizure is affected without the use of physical force, there must be both a show of authority from the officer and submission by the detainee. “[W]hat may amount to submission depends on what a person was doing before the show of authority[.]”The Supreme Court has noted that “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled” can connote a seizure, even when the individual never attempted to leave. However, “[i]n the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.”

Goforth argues that Riley was no longer seized when she arrived at the boat ramp for the baptism because she drove her own car to the lake and “was no longer physically restrained in any way.” But genuine fact issues preclude summary judgment on this basis. Because of the absence of audio in the dashcam footage, the specifics of the conversation that led to the baptism are unclear. Although Goforth contends that, from his perspective, Riley freely consented to the baptism, Riley denies this.

And taking the facts in the light most favorable to Riley, a reasonable person under the circumstances could have believed she was not free to leave until the baptism was completed. Riley had already been pulled over, handcuffed, and detained for nearly two hours by an on-duty, uniformed officer driving a marked police vehicle. She had surrendered marijuana she knew she was not legally allowed to have. Riley also testified that she went along with the baptism at least in part because she did not want to go to jail. She further testified that Wilkey told her that, if she agreed to be baptized, “he’d give [her] a citation and [she] could go on about [her] business.” Wilkey had also called and requested the presence of an additional on-duty officer for the baptism. It would not be unreasonable for a person facing these circumstances to believe that, if she attempted to leave before the baptism was over, she would have been prevented from doing so. Accordingly, Goforth is not entitled to summary judgment on the grounds that Riley was not seized for the purposes of the baptism….

Though Goforth’s argument rests primarily on the absence of a seizure, the Court notes that only unreasonable seizures violate the Fourth Amendment…. To determine the reasonableness of an officer’s conduct, the Court balances “the governmental interest which allegedly justifies official intrusion” against the intrusiveness of the seizure on the individual’s rights.

If the facts demonstrate that Riley was seized, that seizure will have been unreasonable. No government interest is furthered by the baptism of a detainee by an on-duty law-enforcement officer. To the contrary, “[i]t is beyond dispute that, at a minimum, the Constitution guarantees that the government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith or tends to do so.” “[I]f citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people.” Baptism of detainees by law-enforcement officers runs directly counter to the government’s substantial interest in guaranteeing the free exercise of religion without government intervention. Any … seizure for the purpose of conducting a baptism intruded upon Riley’s liberty without furthering any government interest and was therefore unreasonable….

[C]oerced participation in a Christian baptism—an overtly religious act with no secular purpose—[is] unlawful…. Even if Riley was not coerced into the baptism, … [a] state actor improperly endorses religion “if a reasonable observer would think that that the activity is a governmental endorsement of religion.” Under this test, the “reasonable observer” is “deemed aware of the history and context of the community, as well as the context in which the challenged government activity took place.” Applying this test, courts have found that the government endorses religion when the act at issue is inherently religious in nature.

A baptism, too, is an unambiguously religious practice that does not have a conceivable secular purpose. There is no indication in the record that either officer understood or intended the baptism as anything but an exercise of faith and religion. Any reasonable observer would conclude that the effect of the baptism was an unequivocal endorsement of Christianity….

Congratulations to plaintiff’s lawyers, Andrew C. Clarke, Howard Brett Manis, and Robin R. Flores.

The post Unconstitutional to Pressure Arrestee to Be Baptized in Exchange for Leniency appeared first on Reason.com.

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