Tag: in-the-news

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: A special live edition on the D.C. Circuit with former D.C. Circuit clerks (as well as frequent Supreme Court arguers) Lisa Blatt, Kelsi Brown Corkran and Paul Clement.

• Cemetery company buys 180-acre property in Readington Twp., N.J. (that is zoned for cemetery use) and makes significant concessions to township officials: 73 acres to be available for public use, no herbicides or pesticides, preexisting buildings to be renovated, no headstones visible to passersby, and more. Officials: Yeah, but still. No permit for you. District court: A state law that says localities must consent to new cemeteries is unconstitutional because it gives officials “unfettered discretion” to reject applicants for any reason, including “cronyism, economic protectionism, ethnic or racial bias, or a preference for a particular religion.” Third Circuit (nonprecedentially): Reversed. The law gives discretion to local legislators—not police, judges, or juries—so it’s fine.
• After a trip to the Supreme Court, the question of whether Baltimore officials’ suit against 26 multinational fossil fuel companies over climate change (and attendant floods, heat waves, auto accidents, and power outages within city limits) will proceed in state or federal court returns to the Fourth Circuit. Which, over the course of 93 pages, reviews the defendants’ eight distinct arguments for federal jurisdiction and rejects all of them. To Baltimore City Circuit Court!
• After the Fairfax County School Board in Virginia eliminated standardized tests from the admissions criteria for the prestigious Thomas Jefferson High School for Science & Technology, Asian-American enrollment dropped from an average of 71% to 54% for the class of 2025. District Court: Which violates equal protection. Fourth Circuit (with concurrence and dissent): The ruling is stayed pending appeal.
• Attorney Steven Biss is most widely known for filing frivolous lawsuits on behalf of former congressman Devin Nunes against, among others, The Washington Post, Esquire, CNN, and a Twitter cow. As a result, like the boy who cried wolf, judges tend not to give him the benefit of the doubt. But at least in this Fourth Circuit case, the trial court was wrong to impose Rule 11 sanctions against him; on the record before it, the district court could not have concluded that Biss’s arguments had “no chance of success” (even if the Fourth Circuit sympathizes with its frustration).
• When Defense Distributed put CAD files on the internet for a 3D-printable single-shot pistol back in 2013, the feds went after them for violating international arms-trafficking laws. Because nothing on the internet ever really goes away, the files remain widely available, even though Defense Distributed remains prohibited from sharing them. In the latest update to this First/Second Amendment saga, the Fifth Circuit (over a dissent) issues a rare mandamus order, instructing the district court to undo its partial severance and transfer of claims against the New Jersey AG to the District of New Jersey.
• The Federal Reporter abounds with ways lawyers can lose their cases. But district judges within the Fifth Circuit can lose cases too—in the sense of reassignment to different jurists. And if you preside over an antitrust case while criticizing antitrust law and suggesting that Standard Oil wasn’t a real monopoly …
• By a vote of 2 to 1, the Fifth Circuit dissolves a district court’s nationwide preliminary injunction of Executive Order 14043, which requires all federal executive branch employees to get vaccinated against COVID-19. Any employees who get fired for refusing the vaccine can ultimately be reinstated with backpay if the suit is successful, so they don’t face irreparable harm in the meantime.
• Man flees from police through several downriver Michigan communities, winds up in Detroit River (in January) and, after a bit of a struggle, submits to arrest. When he’s handcuffed facedown and no longer resisting, one or maybe two officers allegedly kick him in the face repeatedly, breaking his nose. Officer: Okay, but he said he couldn’t be 100 percent sure who kicked him. Qualified immunity? District court: Nope. Sixth Circuit: Nope (on jurisdictional grounds). Concurrence: Nope (on the merits).
• Landlord: Minnesota’s COVID-19 eviction moratorium prevented me from evicting a tenant who “operated a car and boat repair shop … in violation of city ordinances” and others who “threw raucous parties.” An unconstitutional taking? A Contract Clause violation? District court: Party on, raucous dudes! I’m throwing this complaint out. Eighth Circuit: Turn the music down at least. The complaint at least states a cause of action. Remanded.
• Randolph County, Mo. court clerk refuses to give 17-year-old an application to obtain judicial permission to get an abortion without notifying her parents. Can she sue the clerk? Clerk: The judge told me to do that! Eighth Circuit: If that’s so, the clerk is protected by quasi-judicial immunity, but the judge says he doesn’t remember the case and wouldn’t usually give such a direction. So (over a dissent) no QJI. And, because the right to apply for judicial permission for abortion without parental notice is clearly established, no qualified immunity either.
• Creighton University fraternity brothers get pledge black-out drunk and high on marijuana at chapter house and then leave him on campus at 1 a.m. He wanders into the dorm room of a random student and slashes her across the neck with a pocketknife. (She survives.) Can she sue the fraternity? The Eighth Circuit says no.
• Man steals pistol from his parents, starts driving from Wyoming to Washington, DC, with vague plan to shoot then-President Trump. When he reaches Nebraska, he abandons his plan, calls his dad, and accepts his dad’s advice to return home and seek psychiatric help. Yikes! He’s convicted (and sentenced to time served—20 months) of making a threat against the president based on hearsay testimony from medical staff about the phone call with his dad. Eighth Circuit: Doesn’t seem like this was the best use of prosecutorial resources, but the conviction stands.
• Oklahoma dental anesthesiologists sue the Oklahoma Board of Dentistry after their requests for specialty licenses are denied (they had wanted to use the licenses in advertisements). Tenth Circuit: But Oklahoma changed the law and the Board says it will now grant the licenses if the dentists reapply, mooting their prospective claims. As for their retrospective claims for damages, the dentists managed to waive all those arguments on appeal.
• After two Palm Beach County, Fla. firefighters are disciplined for criticizing their union’s executive vice president in violation of the department’s social-media policy, the fire fighters sue, alleging a variety of First Amendment theories. Eleventh Circuit: And their free speech and overbreadth claims can go forward. Their vagueness and free association claims, however, are out.
• Allegation: Without warning, Madison County, Ala. officer body slams suicidal, non-resisting veteran on his head, causing serious neck injury (requiring the surgical removal of a vertebra, insertion of a metal rod, and fusion of two remaining vertebrae). Eleventh Circuit: The excessive force claim against the officer should not have been dismissed. And, because the then-sheriff apparently never investigated or disciplined officers who used excessive force, the claim for supervisory liability shouldn’t have been dismissed either.

On Brittany Coleman’s 25th birthday, Brookside, Ala. police pulled her over for a bogus infraction. Then they handcuffed her and forced her to stand in the hot sun for no reason while they searched every nook and cranny of her car for over 30 minutes. Finding nothing, they falsely charged Brittany with marijuana possession as a pretext to tow her car. Even though the charge was dropped, she was forced to pay nearly $1k in towing fees and court costs—making her just one of thousands of victims of the police department’s predatory pursuit of profit. In 2020, the last year for which Brookside has made numbers available, the town got 49 percent of its revenue from fines and forfeitures—a more than 1,000% increase in such revenues since 2017. This week, IJ filed a class action. Read all about it in AL.com.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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Republicans are reportedly fed up with The Walt Disney Company for its perceived “far-left activis[m]” and “giv[ing] in to the woke mob.” As a result, they are considering retaliating by refusing to legally extend copyright terms that would apply to Disney characters like Mickey Mouse. If allowed to lapse, Mickey would be in the public domain as soon as January 1, 2024.

Punishing a company for political speech is wrong and arguably an abuse of power. Instead, Republicans should allow the copyright to lapse because it’s simply the right thing to do, specifically when considering the constitutional purpose of copyright law.

As National Review reported Thursday, Republicans in the House of Representatives are looking to punish Disney for its recent opposition to Florida’s controversial Parental Rights in Education law. Detractors have referred to the bill, which Gov. Ron DeSantis signed into law in March, as the “Don’t Say Gay” bill for its admonitions against “classroom discussion about sexual orientation or gender identity…in a manner that is not age-appropriate…for students.” While Republicans insist that the law merely formalizes the common-sense principle that any talk about sex and sexuality should be conducted only with an appropriate audience, the vagueness of the wording threatens to stifle even the slightest mention of the topics in the classroom.

Disney, which runs its largest theme park in Florida, said nothing before the bill passed the state Legislature, which ironically led to widespread condemnation from Disney employees over the company’s silence. After the bill’s passage, Disney CEO Bob Chapek apologized for the company’s lack of response and stated that it was Disney’s wish that the law be repealed.

In response, House Republicans including Indiana’s Jim Banks and Ohio’s Jim Jordan are threatening to let Disney’s copyright on Mickey Mouse run out without passing any legislation that would lengthen copyright terms. Currently, the law stipulates that for works published before 1978, copyright lasts 95 years from the date of publication. Mickey’s first published appearance was the 1928 silent short Steamboat Willie, meaning his copyright term lasts until the end of its 95th year, 2023.

But copyright law was not always so generous. Article I, Section 8 of the U.S. Constitution gave Congress the power to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The first such law, the Copyright Act of 1790, established a period of 14 years, with the option to renew for another 14 if the author was still alive after the first period lapsed. When Walt Disney released Steamboat Willie, those terms had doubled to 28 years each, meaning that Mickey Mouse would become fair game by 1984. But Congress has since extended those terms twice—each time by 20 years, and each time right before Mickey’s copyright was set to lapse.

But allowing Disney, a worldwide mega-conglomerate, to hold onto the exclusive rights to one of its characters for decades upon decades, is antithetical to the purpose of copyright in the first place.

The Constitution’s stated purpose in allowing the establishment of copyrights was not to financially benefit publishers, but rather to “promote the progress of science and useful art.” In other words, copyrights were not intended to be century-long monopolies but to spur innovation. Keeping Mickey Mouse under the sole custody of one company, despite the fact that Steamboat Willie itself borrowed from films of its day, is completely contrary to the spirit of the Constitution, as well as free enterprise. Walt Disney was not guaranteed 95 years of exclusivity in 1928, and he still saw fit to release Steamboat Willie—clearly, the existing laws did not deter innovation in animation.

In 2012, Derek Khanna, a staffer with the House Republican Study Committee (RSC), drafted a memo that called for an overhaul of the U.S. copyright structure. Based on the premise that the U.S.’ copyright laws do not currently spur innovation, the document advocated for sharply limiting copyright terms, as well as expanding exceptions like fair use and lowering the punitively high dollar amounts that can be assessed for violations (the likes of which Disney jealously polices).

But the memo rankled lobbying groups for content-creating industries. The RSC retracted the memo within a day, and Khanna was fired. Ironically, the chairman of the RSC at the time was Jim Jordan, the Congressman who now attests that “Congress should not add to Disney’s 90+ years of federal copyright protection to incentivize its new far left agenda.” Ideally, Congress would not give any company 90 years of copyright protection, regardless of its political agenda. By singling out Disney for its political speech as the reason not to carve out further sweetheart deals for the entertainment industry, Jordan looks to be doing the right thing for seemingly corrupt reasons.

“I can’t think of an idea that’s so facially unconstitutional,” Khanna told Reason this week after the news broke. “[Jordan] is threatening to expire Disney—yes, copyright should expire, and that’s what the [RSC memo] said. But it was equal for everyone. I would never sanction this activity.”

The post In Threatening Disney Over Copyrights, House Republicans Are Right for the Wrong Reasons appeared first on Reason.com.

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The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments yesterday in United States v. Abou-Khatwa, an insurance fraud case. While most of the argument focused on D.C. insurance broker Tarek Abou-Khatwa’s appeal of his 2019 conviction, toward the end Judge Patricia Millett brought up an aspect of the case that troubled her: When FBI agents served a search warrant at Abou-Khatwa’s home in Kalorama Heights, a swanky D.C. neighborhood “favored by diplomats and power brokers,” there was no answer at the door. But instead of breaching the front door, the agents went around the back to preserve “the aesthetics” of an “affluent neighborhood.”

While that issue was not part of Abou-Khatwa’s appeal, Millett said, “I found this deeply disturbing.” When it became clear that a forced entry was necessary, an FBI agent testified, “the decision was made, since it was an affluent neighborhood,” to do it inconspicuously. “Due to the aesthetics of the neighborhood,” he said, “we decided to use a rear entrance so as to maintain the integrity of the front of the residence.”

Addressing Justice Department attorney Finnuala Tessier, Millett asked, “Are you aware that the FBI has a policy of deciding not to break down the front doors in rich neighborhoods?” Tessier replied that she “was not aware of that.” While “I don’t mean to blindside you,” Millett said, “this is such outrageous behavior by the FBI.” If “there really is a policy out there that in nonaffluent neighborhoods we’ll break down the front door, but for the rich people we’ll go in quietly in the back door,” she said, “that’s deeply troubling,” and “it’s shocking to me that it didn’t get more attention.”

Judge Robert Wilkins thanked Millett for raising the issue. “I was a public defender here for 10 years,” he said. “I can’t tell you how many times my clients had their front doors bashed in. I don’t remember a single time where any agent or police officer was worried about the aesthetics of what their house would look like after they executed a search or arrest.”

When Slate‘s Mark Joseph Stern noted these comments on Twitter, Jabari-Jason Tyson-Phipps, an attorney and former Foreign Service special agent, replied: “I can tell you that is not protocol. The problem is there are two justice systems: 1 for poor people and minorities and 1 for rich people and generally white people. You see it when you are one of the few black agents. Everyone is not equal.”

It’s not clear whether the FBI agents who searched Abou-Khatwa’s house were doing him a favor by eschewing a front-door entry. The agent’s testimony makes it sound as if the main concern was the impact that knocking down Abou-Khatwa’s front door would have on his wealthy neighbors.

Either way, the rationale suggests that people lucky enough to live in places like Kalorama Heights, where the median household income is about $175,000 and nearly three-quarters of the residents are white, but unlucky enough to attract the FBI’s attention can expect better treatment than people who live in, say, Anacostia, where the median household income is about $22,000 and 93 percent of the residents are black. While that would be true regardless of the suspect’s race, such a class-based distinction is apt to have a racially disproportionate impact, as Tyson-Phipps notes.

That point aside, the agent’s concern about neighborhood “aesthetics,” if it reflects a broader practice, means that people who can easily afford to fix the damage caused by an FBI raid are apt to have lower bills than people of modest means who would struggle to cover the expense. It also means that rich people are less likely to be humiliated by a conspicuous front-door entry because it would bother the neighbors.

Tessier, the Justice Department lawyer, did not try to defend the FBI’s wealth-based distinction between criminal suspects. “I will pass that on to my management,” she said. “I understand the court’s concern. I understand why it’s upsetting to the court.”

The post The FBI Decided Not To Knock Down a Suspect's Front Door Because 'It Was an Affluent Neighborhood' appeared first on Reason.com.

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When the Young Americans for Freedom (YAF) chapter at the Catholic University of America (CUA) debated the participation of transgender athletes in women’s sports, sophomore Rory O’Connor leaned into the conversation by posting a barrage of critical memes on social media. 

To his surprise, the satirical posts prompted the university to investigate him for “disorderly conduct.”

It all started on March 23 when the school’s YAF chapter posted an image of controversial transgender swimmer Lia Thomas to its Instagram account. The caption read, “Change my mind: Save women’s sports,” inviting critics to stop by the Pryzbyla University Center to debate the issue.

O’Connor only became aware of the event after it had ended, so the next day he took to his Instagram story to passionately express his disagreement with YAF. He launched into a self-described “cyberbullying” campaign against the club consisting of 19 Instagram stories, most of which were popular memes he edited to respond to perceived transphobia on the part of YAF.

In one post, which would eventually become the focal point of the controversy, O’Connor posted a viral meme from the children’s cartoon Arthur which depicts a character holding a baseball bat. He edited the original caption to read “My terms to stop cyber billing [sic] the shit out of @catholicuyaf are simple: Do you wanna keep your post or do you wanna keep your kneecaps?”

In another, he made his opinion on transgender athletes clear: “If you preach love for *all* of God’s children, you better mean all of them—trans and LGBTQ+ people included. And don’t bother anyone with the pseudo-righteous indignation over some memes, for fuck’s sake. Try to give a shit about the lives and experiences of trans people who are hated for nothing but expressing themselves and living in the truth.”

“My intention in making the posts was to criticize and satirize the Catholic U YAF for, what I believe at least, was a blatantly exclusionary and disrespectful event,” O’Connor tells Reason. “I meant this in good humor.” But not everyone saw it as a joke.

Representatives from the YAF chapter filed a complaint to the university, writing to administrators about “a variety of Instagram stories all tagging @catholicuyaf, each of which are misrepresentative of our views, our tabling, and us as individuals.” The complaint alleged harassment, asserting, “A Catholic University student should never threaten, harass, or bully other people including other CUA students.”

In response, the university launched an investigation into O’Connor. In a March 29 letter, administrators notified him of charges of violating the student code of conduct and engaging in “disorderly conduct” due to allegations that he “threatened representatives of Young Americans for Freedom with bodily harm via [his] Instagram post.” He was then summoned to a student conduct conference—potentially facing suspension or expulsion, according to school policy.

That’s when the Foundation for Individual Rights in Education (FIRE) stepped in.

Sabrina Conza, program officer of FIRE’s Individual Rights Defense Program, wrote to Catholic University on April 1, demanding the termination of the investigation. Conza argues that while the Instagram stories were potentially offensive to members and allies of YAF, they are clearly satirical in nature and therefore constitute protected speech.

According to Conza, the memes do not rise to the level of a genuine threat, and, therefore, punishment would violate the university’s guarantee of free speech for students—not to mention its “no cancellation” policy. Although Catholic University is a private institution and therefore not bound by the First Amendment, its institutional commitment to protecting open expression means it is contractually obligated to uphold promises made to students. Furthermore, the letter argues the investigation would run the risk of chilling speech around contentious issues on campus.

“O’Connor’s post uses a well-known meme to criticize YAF’s views on transgender athletes, a topic on which YAF specifically called on students to engage,” Conza tells Reason. “Now that we’ve let the university in on the joke, it must immediately end its investigation and reaffirm its commitment to free speech.”

Catholic University did not respond to a request for comment, but it appears FIRE’s pressure paid off.

At a hearing on Monday, O’Connor was deemed not responsible for the alleged disorderly conduct after YAF members acknowledged that they did not feel physically threatened by the posts. In the end, the Office of Student Conduct & Ethical Development acknowledged O’Connor’s intent was satirical and not genuinely menacing.

O’Connor says he feels “vindicated” by the result. “I’m grateful for the immense help of FIRE,” he says. “This could have ended a lot differently.”

Ultimately, no matter who you side with on the issue of transgender athletes and regardless of whether YAF members were right to be offended, the onus is on administrators to respond appropriately and proportionately. After some pressure from FIRE, Catholic University came out on the side of free speech.

The post It's Not 'Bullying' To Satirize a Student Organization appeared first on Reason.com.

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In the new documentary Havana Libre, filmmaker Corey McLean follows a community of Cuban surfers who refuse to abandon their sport despite police harassment, government bureaucracy, and being shut off from the international surfer community.

“If you want to feel something and understand Cuba, you just need to get to know these characters going about their lives, trying to pursue something that they love and seeing how difficult it is,” says McLean. “Cuba has had this really difficult relationship with the water. The Cuban government essentially made the water off limits to all of its people unless expressly given permission for it. To try and develop a sport in that space is already really difficult. The fact that it’s primarily a Western sport is also not particularly appealing to the government there. And so, together, those reasons basically forced surfing to be this underground sort of invisible sport.”

Throughout the film, protagonists Frank Gonzales Guerra and Yaya Guerrero grapple with both their Communist government and the American embargo in an attempt to advance the sport they love.

“You see how much chaos politics can cause in day-to-day life,” says McLean. “Everything is connected to politics. And so for them, surfing is really this ability to just release all of that. And so when they say they’re constantly trying to escape politics, all they want to do is live in this peaceful lifestyle that they see people around the world being a part of. This film is sort of about how difficult that simple task is.”

Havana Libre is now streaming on Amazon, Apple TV, and elsewhere.

Photo Credits: Ernesto Mastrascusa/EFE/Newscom; ABACAUSA.COM/Newscom; Axelle de Russe/Polaris/Newscom; Bayne Stanley/ZUMA Press/Newscom; Peter Bennett/Ambient Images/Newscom

Music Credits: “Darkness,” by onyx-music via Artlist

Produced and edited by Meredith Bragg

The post Surfers Chase Freedom in Cuba appeared first on Reason.com.

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From today’s decision by Judge Trevor McFadden yesterday in U.S. v. Cudd:

Jenny Cudd moves to alter the Court’s judgment against her denying her the right to possess a firearm while on supervision. A restriction on the right to possess a firearm is a discretionary condition of probation, not a mandatory one. See 18 U.S.C. § 3563(b). A discretionary condition can only be imposed by the Court “to the extent that such conditions are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 3553(a)(2).”

Cudd contends that because she has a nonviolent misdemeanor conviction, the firearms restriction is not reasonably related to her conviction. More, Cudd maintains she has been threatened for her role in the Capitol on January 6 and needs a weapon to defend herself.

The Government opposes the motion. It argues this condition of supervision is reasonably related to “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the office, and the need for the sentence imposed to afford adequate deterrence to criminal conduct.” The Government describes Cudd as courting violence. It highlights that she wore a bulletproof sweatshirt to the Capitol, knew law enforcement was pepper spraying rioters, and yet continued into the building.

The Government also points to several statements Cudd made, including: “[W]hen Pence betrayed us is when we decided to storm the Capitol”; “I’m proud of everything that I was part of today”; and “Yes, I would absolutely do it again.” The Government argues these statements, together with Cudd’s bulletproof sweatshirt, are indicative of violence. And it claims that if Cudd does possess a firearm, she could be a danger to probation officers overseeing her on supervision.

But the Government presented no evidence that Cudd incited anyone to violence. Nor did it present evidence that she participated in violence. She has no prior criminal history. And Cudd’s bullet proof sweatshirt is consistent with her fear of being attacked at the rally preceding her entry into the Capitol. This says nothing about her danger to others.

Cudd credibly claims that she has been threatened and needs protection. At sentencing, the Court and the Government acknowledged the harassment she has faced. And “the inherent right of self-defense has been central to the Second Amendment right.” D.C. v. Heller (2008). The Court will not limit that right for a nonviolent misdemeanant who credibly fears for her safety….

Cuddy had been convicted of 18 U.S. Code § 1752(a)(1), “knowingly enter[ing] or remain[ing] in any restricted building or grounds without lawful authority to do so,” and sentenced to a $5000 fine and two months’ probation.

Congratulations to Marina Medvin, Cuddy’s lawyer, on her victory on this point.

The post Court Removes No-Weapons Probation Condition for Woman Convicted of Jan. 6 Capitol Trespass appeared first on Reason.com.

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The book is available here, and the symposium posts (from many people) are here. Here’s my post, which is also available here:

Rick Hasen’s book identifies a tremendously serious problem; and it offers only modest solutions. And rightly so, I think: As the book correctly points out, more aggressive restrictions (such as bans on supposedly “misleading” advocacy) will likely be cures that are worse than the disease, however serious the disease might be.

I therefore have little quarrel with many of Rick’s suggestions. But I do want to talk briefly about the problem of foreign speech that may influence election campaigns, which Rick suggests should be even more restricted than it is now (see pp. 102-09).

Protecting American self-government from undue foreign influence is of course quite appealing, especially for people (like me) who have a mindset that’s more nationalist than universalist. I don’t view myself as a citizen of the world; I’m a citizen of a particular nation. If I’m stranded in Elbonia, I’m not going to call the UN for help; I’ll call the American Embassy. It is my nation, not the world, that I expect to defend me against peril. In turn, I’d like to see my fellow citizens make political decisions without excessive interference by foreign countries, even friendly ones but especially adversarial ones (such as Russia). “God gave all men all Earth to love / But, since our hearts are small / Ordained for each one spot should prove / Beloved above all.” Our spot, for us to govern; and I’m sure many citizens of other countries think the same of theirs.

At the same time, much important information relevant to American political debates comes from foreign citizens. Some are people living in the U.S. on temporary work or student visas. Many are in foreign countries; they could be ordinary citizens, political activists, scholars, or politicians. They may be able to convey important facts and ideas about the effects of American foreign policy; or about American actions bearing on world problems (such as climate change or telecommunications technology or artificial intelligence or food production); or about foreign problems that might call for American help.

They might offer some information about the foreign activities of American politicians or business leaders. They might be foreign religious figures who want to exhort their American followers to act consistently with their shared religions. They might be journalists for foreign newspapers who are writing about American politics for a world audience, including an American audience. And they might even be foreign government employees (such as academics, much as Rick and I are employees of an American government) or others who are actually or allegedly linked in some way to a foreign government.

The Court has of course recognized the right of American listeners to receive information from foreign sources; the very first case striking down an Act of Congress on First Amendment grounds, Lamont v. Postmaster General (1965), involved a law that barred the delivery of “communist propaganda” from foreign sources (which were understood as generally linked to foreign governments) unless the recipient affirmatively authorized its delivery. Such a law, the Court held, “is unconstitutional because it … [is] a limitation on the unfettered exercise of the addressee’s First Amendment rights.”

Of course, Rick is right (p. 106) that this isn’t the end of the story; perhaps the analysis should be different for laws focused on election-related speech. And of course in Bluman v. FEC (2012), the Court summarily affirmed, without opinion, Judge Kavanaugh’s decision for a three-judge court upholding a ban on foreign citizens (other than permanent residents) “contribut[ing] to national political parties and outside political groups” or “expressly advocating for and against the election of candidates in U.S. elections.” (One might also note Meese v. Keene (1987), which upheld a requirement that expressive materials funded by foreign governments be labeled “political propaganda.”)

But once one gets beyond the narrow zone of contributions or express advocacy with regard to candidates, to “tightening the foreign campaign spending ban” (p. 102), the matter becomes much more complicated, I think. (The Bluman court expressly noted that it did not decide on any broader restrictions, such as on “issue advocacy and speaking out on issues of public policy.”)

And of course if one really wants to deal with foreign attempts to influence elections, one would indeed have go to much beyond “expressly advocating for and against the election of candidates.” Sharp criticisms of a President or Senator who is running for reelection, after all, may well affect the election, even if they are “susceptible of [a] reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Indeed, extensive commentary on issues that are central to an election can affect the election as well, even if it doesn’t mention a particular person, for instance because it “foment[s] American political unrest” (p. 49). And that’s true even when the coverage doesn’t involve advertising, but rather the free distribution of speech that will often have cost money (if only in the form of writers’ salaries) to write or design or videorecord.

No wonder that Rick is at least suggesting (though perhaps not fully endorsing) Congress “proceed[ing] even more broadly and outlaw[ing] all the social media and Internet activity Russians engaged in to influence the 2016 and 2020 elections” (p. 104)—which would presumably extend equally to speech by Swedes or Britons or Israelis or Palestinians that may affect American elections. And while Rick warns that the Supreme Court “could well strike down a law barring foreign entities from running paid ads that stir up unrest on contentious issues such as racial justice, immigration, or gay rights” (p. 105), it seems that he views this as a defect in the Court’s jurisprudence, perhaps one that a more enlightened (because less “libertarian”) Court would correct.

Likewise, Rick has taken the view that it would be a crime for an American campaign to receive “opposition research” on a candidate from a foreign national, on the theory that it is a forbidden contribution of “anything of value” to a campaign. (Again, notice how this doesn’t involve independent expenditures in the sense of buying advertisements for cash.)

So say that, in Summer 2024, when Donald Trump is running again for President, a top Kamala Harris staffer gets a message from a Slovene student at the Wharton School: “I’ve done extensive research on President Trump’s involvement in his Miss Universe organization, and found that Miss Slovenia says that Donald Trump had sexually harassed her. Would you like to get this story?” The staffer says, “I’d love to,” and indeed gets the information, which he then uses in the campaign (and which many American voters presumably find useful).

Under Rick’s theory, it would be a crime for Harris to receive this, on the theory that this is valuable “opposition research.” (It might be possible under this theory that it wouldn’t be a crime if Harris paid for it, since then it wouldn’t be a donation to the campaign, but that would be a very odd rule: We usually frown on paying for incriminating evidence, rather than thinking that paying for such evidence is what makes otherwise criminal conduct legal, plus what would the fair market value of such one-off incriminating evidence even be?) Moreover, if that’s an illegal contribution to a campaign, then presumably the Slovene’s publishing that information online might be treatable as an independent expenditure by a foreign citizen, and thus also constitutionally unprotected.

Rick doesn’t elaborate in detail what he thinks the proper constitutional framework should be for such speech by foreign citizens or organizations (or governments) on matters that might bear, directly or indirectly, on American election campaigns. But I think it would be helpful for us to think about that question, if “the foreign campaign spending ban” is indeed to be tightened, and if a changed Supreme Court were to face a ban on foreign “issue advocacy and speaking out on issues of [American] public policy.” And, again, that’s important not just to define the rights of foreign citizens (including ones who live in America), but also to define the rights of Americans to hear a broad range of views, from all sources, about American political matters.

Now one possible answer that Rick seems to offer (p. 107) is that such speech should be protected if it’s published by foreign “news media” but not by other foreign speakers. (“[D]ifficult as any dispute over an expanded general foreign campaign spending ban might be, any law specifically aimed at shutting down fake news sites run by foreign entities such as Russia’s Peace Data site (described in the last chapter) promises to stir up a hornet’s nest among the Court’s conservatives because of the definition of who counts as the news media.”) As I’ve noted, the Supreme Court has generally held that the Free Press Clause protects “press” in the sense of a technology (the printing press and its technological heirs, which is to say mass media communications) and not “press” in the sense of an industry. And while of course that doctrine might change, any such change would require difficult line-drawing about who is entitled to “free press” rights and who isn’t.

Rick seems to endorse (p. 109) Sonja West’s proposed framework, under which courts would identify the “press” by looking to “four factors”: “(1) recognition by others as the press; (2) holding oneself out as the press; (3) training, education, or experience in journalism; and (4) regularity of publication and established audience.” Presumably an editorial or an article in the Times of London sharply condemning an American political leader who is seeking reelection would thus be “press” and presumably not subject to “shutting down,” whether on “fake news” grounds or campaign spending grounds; but some other online material wouldn’t be “press.”

Yet this seems like a poor basis for a definition that has constitutional significance. Element 1 would involve delegating decisions about who has constitutional rights to unspecified “others,” who will often be self-interested or ideologically motivated. Element 2 would of course just lead advocacy groups to self-label as “news” or “media” or something along those lines. Element 3, if taken at face value, would strip protection from material in opinion magazines, such as The New Republic, National Review, and the like, since much of that speech comes from academics, think tank researchers, policy advocates, and others, who aren’t trained as journalists (and who sometimes write only occasionally, thus lacking much “experience in journalism”). Element 4 would favor established media entities (however biased, deceptive, or foreign-government-influenced) over new upstarts.

Finally, Americans of course routinely comment on foreign politics, including on foreign elections. The U.S. government has long funded speech aimed at influencing citizens of foreign countries. American nongovernmental organizations often engage in such speech as well, on democracy, gay and transgender rights, religious freedom, civil liberties, and much more.

American newspapers, including ones with substantial overseas circulation, comment on foreign countries’ policies, politics, and politicians. And of course American-based search engine companies and social media companies impose their content policies on political speech (as well as other speech) in foreign countries. Perhaps these don’t involve much spending on express advocacy in support of or opposing a particular candidate (I’m not sure), but again it appears that Rick’s suggestion would go beyond that narrow zone.

Now perhaps we should take the view that America and American individuals and organizations should get away with whatever we can along these lines in foreign countries, and at the same time restrict whatever speech we can from foreign countries that would try to influence American political debates. “The strong do what they can and the weak suffer what they must,” like it or not, might be eternal truth; and even if we’ve tried to restrain that principle when it comes to military force, perhaps it makes sense for speech about politics. At the same time, it would be helpful to know if there is some generalizable principle available here, which we would be able to live with when it comes to others restricting Americans’ rights to speak about foreign elections (including about the issues critical to foreign elections) as well to our restricting foreigners’ rights.

In any event, these are just some thoughts on what might be worth considering when it comes to “tightening” existing constraints on foreigners’ speech about American elections.

The post "Should We Regulate Foreign Speech?" appeared first on Reason.com.

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Inflation has surged across much of the developed world in the past year as COVID-19 lockdowns eased and pent-up demand for goods and services collided with ongoing supply chain snafus.

But inflation is running higher in the United States than just about anywhere else right now. Why’s that? According to a new paper from four economists at the Federal Reserve of San Francisco, it’s because the American government was relatively more generous during the pandemic, borrowing and spending trillions of dollars to not only fund COVID-19 relief efforts but to line the pockets of Americans with direct payments that enlarged the money supply and overheated the economy.

“Inflation rates in the United States and other developed economies have closely tracked each other historically,” the economists write in an analysis published this week. “However, since the first half of 2021, U.S. inflation has increasingly outpaced inflation in other developed countries. Estimates suggest that fiscal support measures designed to counteract the severity of the pandemic’s economic effect may have contributed to this divergence.”

Inflation in the U.S. hit an annualized rate of 7.9 percent in February (data for March will be released by the Bureau for Labor Statistics next week), a 40-year high. Meanwhile, inflation in similar countries like France (3.6 percent), Germany (5.1 percent), and the United Kingdom (5.5 percent) is significantly lower, according to data from the Organization for Economic Cooperation and Development (OECD), a consortium of 38 rich-world governments. (Across the OECD as a whole, the average annual inflation rate is about the same as the U.S., but that’s due to the influence of outliers like Argentina—where prices are up over 52 percent in the past 12 months.)

February’s global price data are not merely a snapshot, but indicative of a worrying trend. The Pew Research Center noted in November of last year that prices in the United States were rising more quickly than almost anywhere else. Between the third quarter of 2019 (the last full economic quarter before COVID-19 was first identified) and the third quarter of 2021, the U.S. inflation rate climbed by 3.58 percentage points—a larger change than in all but two other countries of the 46 nations included in the study.

Governments all over the world spent heavily to combat the pandemic, of course, but few handed out cash directly to citizens as the American government did. The four Federal Reserve researchers track sharp increases in “inflation-adjusted disposable personal income”—in layman’s terms, excess spending cash—reported by American households over the past two years. “Throughout 2020 and 2021, U.S. households experienced significantly higher increases in their disposable income relative to their OECD peers,” they write.

About $817 billion in direct payments to American households were delivered in three rounds during the pandemic, according to the COVID Money Tracker run by the Committee for a Responsible Federal Budget, a nonprofit that advocates for lower deficits. The first round of stimulus checks was worth $1,200 per person and was approved as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020. Another round of $600 checks was distributed starting in December of that year.

But the big blow came in early 2021, when the Biden administration pushed through a round of $1,400 checks as part of the American Recovery Plan, passed by Congress in March 2021.

Though each round of direct checks had slightly different parameters for determining who would get the payments, much of that $817 billion landed in the bank accounts of people who had never lost their jobs and were well above the poverty line. Households earning as much as $160,000 in joint income were eligible for the final round of direct payments disbursed during the first half of 2021—and many progressives in Congress thought the cutoff should have been even higher.

We’re now reaping what Congress sowed. All that excess cash is chasing the same number of goods. That’s a recipe for inflation straight out of any economics textbook. The four economists conclude that “U.S. income transfers may have contributed to an increase in inflation of about 3 percentage points by the fourth quarter of 2021.”

This isn’t a novel idea, of course. Larry Summers, one of the Obama administration’s top economic advisers, was warning about rising inflation more than a year ago. Passing another stimulus bill in the spring of 2021, Summers warned in a Washington Post op-ed, “will set off inflationary pressures of a kind we have not seen in a generation.” Other top economists, including a former chairman of the International Monetary Fund, offered similar warnings. The Biden administration and Democrats in Congress did not listen, and now here we are.

The value of this Federal Reserve analysis is that it does not look forward in time and try to project what will happen, but reviews existing data to tell what did in fact happen. Putting more money directly in Americans’ pockets and bank accounts caused inflation to get worse than it otherwise would have been.

In fairness, the economists also point out that a less robust response to the pandemic may have caused a different kind of economic pain. “Without these spending measures,” they write, “the economy might have tipped into outright deflation and slower economic growth, the consequences of which would have been harder to manage.”

Any serious attempt to grapple with America’s current bout of inflation must be aware of that possible alternate reality—the grass is not necessarily greener on the other side.

But that doesn’t absolve the federal government—from the White House to Congress to the Federal Reserve—of its role in worsening this mess. The whole world is suffering through a period of high inflation, but American policy makers added a uniquely high amount of fuel to the fire.

The post COVID Stimulus Checks Worsened Inflation appeared first on Reason.com.

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Taking templates from Texas, Florida, and other Republican-led states, Alabama seems to be embracing all the worst anti-LGBTQ trends—and in some cases taking them one step further. This week, the state passed a bill making it a felony to provide transition-related medical care to transgender minors and mandating prison time for those who provide what’s come to be known as “gender-affirming care.”

Under the bill—S.B. 184, passed by the Alabama House on Thursday after clearing the state’s Senate in February—providing hormone therapy or puberty blockers to someone under age 18 would be a Class C felony, punishable by at least one year in prison and up to 10 years. “The legislation also bans gender-affirming surgeries on transgender youth, though that is already not standard practice among doctors,” notes Politico.

S.B. 184 also states that “no nurse, counselor, teacher, principal, or other administrative official at a public or private school attended by a minor shall…withhold from a minor’s parent or legal guardian information related to a minor’s perception that his or her gender or sex is inconsistent with his or her sex.”

The bill is now with Alabama Gov. Kay Ivey, who has not indicated whether she will sign it into law.

Another measure (H.B. 322) passed by Alabama lawmakers on Thursday would ban transgender students from using sex-segregated bathrooms and locker rooms that match their gender identity. And an amendment to the bill limits school-based discussions about gender identity or sexual orientation (in the manner of a recent Florida law that opponents dubbed the “Don’t Say Gay” bill).

“What this amendment does it just prohibits classroom instruction or discussion on sexual orientation or gender identity for students in kindergarten through fifth grade,” said state Sen. Shay Shelnutt (R–Trussville), who introduced the amendment.

H.B. 322 has also been delivered to the governor.

Laws like these are flooding Republican-controlled legislatures right now, notes the American Civil Liberties Union (ACLU). The ACLU has identified variations on the Alabama gender care measure in 19 states (setting them up for a conflict with the U.S. Department of Justice).

“Last summer a federal court blocked Arkansas from enforcing a law that made it the first state to prohibit doctors from providing gender-confirming hormone treatment, puberty blockers or sex reassignment surgery to anyone under 18 years old,” notes The New York Times. And “in Arizona, Gov. Doug Ducey signed legislation last month blocking some forms of gender-affirming care for minors. Tennessee legislators also approved a bill this year that would ban providing hormone-related medication to children before puberty. But those measures stop short of being considered felony-level offenses.”

“A bill in Idaho that would have also made providing gender-affirming care to transgender children a felony passed out of the House last month but was blocked by Republican Senate leaders, who said the policy ‘undermines parental rights,'” notes Politico. (More on that here.)

Meanwhile, in Texas, Attorney General Ken Paxton has directed authorities to start investigating parents who approve gender-affirming care for their children, calling it a form of child abuse.

Following in the footsteps of a Florida law limiting instruction around sexual orientation and gender identity, Ohio and Georgia have introduced similar measures.

The Ohio measure would apply to private as well as public schools. “This is not a bill that supports parents’ rights to control and influence their children’s education. It is the exact opposite—it’s just coming from social conservatives rather than progressive gender and race activists,” writes Reason‘s Scott Shackford.

These measures come alongside ongoing attacks on transgender students using facilities that correspond to their gender identities. Such measures are currently active in three states (Minnesota, Oklahoma, and South Dakota) aside from Alabama, according to the ACLU.

The ACLU, ACLU of Alabama, Lambda Legal, and the Transgender Law Center have already vowed to fight Alabama’s transgender medical care measure should it become law. “If Alabama lawmakers insist on passing this cruel, dangerous, and unconstitutional legislation into law, the state will immediately have a lawsuit to deal with,” Carl S. Charles, a senior attorney for Lambda Legal, said in a statement.

“Our representatives have been hearing from medical experts, parents, transgender youth, and other advocates for the past three years in an attempt to stop this harmful bill from passing. But despite this strong opposition, the Legislature seems determined to move ahead with this shameful effort to prevent parents and kids from deciding the best course of treatment for themselves,” said Kaitlin Welborn, a staff attorney with the ACLU of Alabama. “If the state moves forward in passing this unconstitutional bill, we’ll see them in court.”

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FREE MINDS

Ketanji Brown Jackson has been confirmed to the U.S. Supreme Court. In a 53–47 vote, the Senate voted to confirm Jackson, who will become the first black woman to serve on the Supreme Court. She will be sworn in this summer after Justice Stephen Breyer’s retirement.

Most Senate Republicans opposed Jackson’s nomination. But Democrats were joined by GOP Sens. Susan Collins (Maine), Mitt Romney (Utah), and Lisa Murkowski (Ala.) in voting to confirm.

“While GOP senators had every right to oppose Jackson, the reasons many of them gave were dubious, at best,” notes law professor and Volokh Conspiracy blogger Ilya Somin. During the confirmation hearings, “Senate Republicans opted to zero in on topics that carry political currency and play well with the cameras but do little to undermine or inform how Jackson would preserve constitutional rights from the country’s highest court,” wrote Reason‘s Billy Binion last month.

See more of Reason‘s coverage of Jackson and her confirmation hearings here.

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GOP senators who are attacking President Joe Biden’s Supreme Court pick seem weirdly unaware of how our justice system works. By focusing in part on Ketanji Brown Jackson’s former role as a criminal defense attorney, they act as if it’s wrong to provide a defense to people accused of a crime—and that if the government levels a charge, it must be right.

Hey, if you haven’t done anything wrong, you have nothing to fear—or something like that. “Like any attorney who has been in any kind of practice, they are going to have to answer for the clients they represented and the arguments they made,” Sen. Josh Hawley (R–Mo.) said in reference to Jackson and other Biden nominees. Apparently, defense attorneys should only defend choirboys.

Yet I guarantee if Hawley—known for his fist pump in support of Jan. 6 protestors at the U.S. Capitol—became the target of an overzealous prosecutor who accused him of inciting an insurrection, he’d be happy to have a competent defense attorney to advocate on his behalf. That attorney shouldn’t be forever stained for defending someone as loathsome as Hawley.

These hearings remind me of how difficult it is to have a calm debate about criminal-justice policy—and how tilted our system is on the side of the government. As the Christian Science Monitor pointed out, if confirmed Jackson will be the nation’s first Supreme Court justice to have served as a public defender, with Thurgood Marshall being the last justice to have criminal defense experience.

Marshall was born when Theodore Roosevelt was president and retired 31 years ago. A study last year by the libertarian Cato Institute found the Trump administration’s judicial appointments tilted in favor of prosecutors over those who represented individuals by a 10-to-one margin. Only 14 percent of the liberal Obama administration’s appointees defended individuals. Most judges strive to be fair, but their backgrounds color their worldview.

That brings us to district attorneys. Most people believe their role is to secure convictions, but that’s not entirely the case. “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict,” the American Bar Association explains. They are required to “protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons.”

In reality, DAs are ambitious political animals. As the Jackson hearings exemplify, it’s much easier to get confirmed as a judge or elected prosecutor by playing the tough-on-crime card for the obvious reason that the public is fearful of crime—especially now, as long-falling crime rates are headed in the wrong direction. It’s tougher for a DA to succeed by pledging a commitment to justice and balance.

For decades, prosecutors have been closely aligned with police unions, which partially explains why it’s been so hard to hold accountable officers who engage even in egregious misbehavior or who are overly aggressive. Traditionally, it’s been difficult for a district attorney to win an election without the backing of those unions, which represent rank-and-file officers.

That spurred a well-funded movement to begin electing “progressive prosecutors”—mainly in big, liberal cities with large populations of poorer people who have been on the receiving end of our justice system. Unfortunately, these DAs have gone too far in the other direction.

For instance, Los Angeles County District Attorney George Gascón initially banned “prosecutors from seeking the death penalty or life sentences without the possibility of parole, while also severely limiting the way prosecutors could use sentencing enhancements,” the Los Angeles Times reported. He also refused to sentence juveniles as adults.

He’s changed course amid a backlash. But by imposing hard-and-fast policies rather than seeking out the just response in each case, Gascón’s approach is the mirror image of a Neanderthal prosecutor who was hard wired to always be tough. Likewise, San Francisco DA Chesa Boudin is accused of refusing to prosecute many serious crimes that are turning his city into a scene from Road Warrior.

Traditional prosecutors have overcharged people, winked at police abuse and filled the prisons with people who ought not to be there. But these liberal prosecutors have pursued an ideological agenda that has failed to consider legitimate public fears of dangerous criminals. They forget economist Adam Smith’s quotation, “Mercy to the guilty is cruelty to the innocent.”

Our nation is finally—albeit clumsily—debating justice policy. Even in law-and-order Orange County, the DA’s race is pitting two candidates, incumbent Todd Spitzer and challenger Pete Hardin, who at least claim to seek some middle ground. Their race isn’t more edifying than the Jackson hearings, as they prefer to trade race- and sex-related allegations rather than focus on the fundamentals of the job.

Maybe someday soon, DAs and justices can apply to the justice system the Goldilocks Principle—not too hot, not too cold, but just right.

This column was first published in The Orange County Register.

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