California’s Unconstitutional ‘Bacon Ban’


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Before Californians approved Proposition 12 in 2018, the measure’s opponents warned that it would effectively ban the sale of bacon in the Golden State.

That was a bit of a stretch. Prop. 12, which was supported by 63 percent of voters, outlawed the sale of pork or chicken products (including eggs) unless they were produced by farms that complied with new minimum space requirements for each animal. The Humane Society of the United States, which backed the initiative, calls it the world’s strongest law protecting the welfare of farm animals.

When the new rules took effect on January 1, 2022, bacon was not banned from the state, but Californians had cause for concern. California consumes about 13 percent of the pork eaten in the United States every year but produces only about 0.3 percent of the national supply. When the new rules kicked in, much of the bacon from other states was suddenly illegal in California.

Prop. 12 also raised a constitutional issue. In a lawsuit that could end up before the U.S. Supreme Court later this year, the National Pork Producers Council (NPPC) argues that the initiative violates the Dormant Commerce Clause. Because the Constitution gives Congress sole authority to regulate interstate commerce, that doctrine says, states are prohibited from imposing rules on businesses beyond their own borders. It certainly seems like Prop. 12 is an attempt to do that.

“The pork industry is a highly integrated interstate market where a pig farmer in North Carolina might sell his stock to a meat packer in Illinois, who then distributes to California,” notes Trevor Burrus, a research fellow at the libertarian Cato Institute, which filed an amicus brief supporting the NPPC’s argument. “It’s very difficult to trace a given cut of meat back to its source and verify that the farmer complied with California law.” And under the Dormant Commerce Clause,  Burrus says, a farmer in North Carolina should not have to comply with another state’s laws.

Prop. 12 also could mean higher prices for consumers, and not just in California. Because so much pork consumed in California is produced elsewhere, farmers across the country may have little choice but to comply with the state’s rules. The question for the Supreme Court is whether the rest of the country should have to comply with a policy approved by 7.5 million voters in a single state.

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Brickbat: You Have to Move


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With a new rent control law taking effect on May 1, many landlords in St. Paul, Minnesota, particularly small landlords and those who rent to low-income people, are raising rents, converting their buildings to condominiums, or selling them. The Pioneer Press reports this is exactly what critics of the measure said would happen. Voters approved the rent control referendum in November. It limits rent increases to no more than 3 percent a year and does not allow them to be raised to market rates when an apartment is vacated.

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Transgender Applicant’s Name Change Application May Be Filed Under Seal

So held the New Jersey Appellate Division last week in In the Matter of Application of T.I.C.-C. to Assume the Name of A.B.C.-C. (by Judge Michael Haas, joined by Judges Hany Mawla and Stephanie Ann Mitterhoff):

Appellant A.B.C.-C. is a transgender man who sought to change his name to conform his identification documents with his gender identity. As part of his application, appellant submitted evidence showing transgender people are subject to a particularized threat to their safety based upon their identity, and asked that the record of his name change be sealed to protect him from such discrimination and violence. The trial court denied appellant’s request. Having considered the issues appellant presents in light of the applicable law, we are satisfied he demonstrated good cause to seal the record. Therefore, we reverse the trial court’s denial of appellant’s motion, order that the record be sealed, and remand for any necessary further proceedings….

[W]e are satisfied appellant established good cause to seal the record of his name change application. First, the record amply supports a conclusion that “disclosure will likely cause a clearly defined and serious injury” to appellant. Second, the record fully supports a finding that appellant’s “interest in privacy substantially outweighs the presumption that all court and administrative records are open for public inspection pursuant to R[ule] 1:38.”

The two prongs of this court’s inquiry are intertwined in this case because the “clearly defined and serious injury” to appellant is the violation of his “interest in privacy” in being transgender. Indeed, it is difficult to imagine a more intimate, personal, and private matter than whether a person’s gender identity conforms with the sex they were assigned at birth, typically based upon the existence and appearance of their reproductive organs, and their chromosomal makeup….

In denying appellant’s motion, the trial court misunderstood and misapplied the governing law. Prior case law may have involved past physical violence or threats. However, contrary to the court’s understanding, the standard set in Rule 1:38-11(b)(1) does not require that the “clearly defined and serious injury” be physical harm or the threat of physical harm. Nor does the rule require that the movant have already suffered physical harm or the threat of physical harm. In fact, the language of Rule 1:38-11(b)(1) evidences an intent to prevent harm from occurring….

Appellant presented the court with evidence that transgender individuals face violence, harassment, and discrimination because of their gender identity. This is commonly recognized in case law as well. Accordingly, there was no reason for the court to discount appellant’s fears, or assume they were unfounded….

On the other side of the ledger, the only expressed public interest in name change applications is protecting against those seeking to avoid or obstruct criminal prosecution, avoid creditors, or perpetrate a criminal or civil fraud. In this case, however, there are no concerns that appellant is seeking to avoid or obstruct criminal prosecutions, avoid creditors, or perpetrate a fraud. Moreover, appellant notified the Division [of Criminal Justice, Records and Identification Section,] of his application, as required under Rule 4:72-3, and the Division chose not to participate in the case and made no objection to appellant’s application. Thus, a fair consideration of the law and the facts warranted granting appellant’s motion.

The trial court also considered a number of irrelevant factors in denying appellant’s motion to seal the record and his motion for reconsideration of that decision. The court denied the motions, in part, because appellant had already chosen to reveal he was transgender to individuals he trusted with that information. However, that did not mean appellant should be compelled to disclose this information to the world, including those who may do harm to him as a result, in order to obtain a change of name that affirms his gender identity. The purpose of sealing the record was to protect appellant’s right to share his transgender identity only with those he trusts, thus avoiding the psychological and possibly physical harm he would suffer by making the information public….

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First World Problems


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The Loneliest Americans, by Jay Caspian King, Penguin Random House, 272 pages, $27

Jay Caspian Kang’s life story is both extraordinary and somewhat normal for families like his.

His parents’ family had roots in North Korea, although they fled to the South in the leadup and aftermath of what is known in America as the “Korean War.” Upon getting married, his father and mother moved to the U.S. They arrived with relatively humble means, yet his parents enjoyed significant social mobility and their children flourished in the U.S. too. Although his path was far from straightforward, Kang ultimately attained a B.A. from an elite liberal arts college (Bowdoin) and an MFA from an Ivy League university (Columbia). He published a well-regarded novel. He worked as a reporter and/or editor for ESPN, The New Yorker, Vice, and elsewhere before joining The New York Times, where his columns are consistently great.

His latest book, The Loneliest Americans, draws on his own family’s story and his reporting over the years to explore what it means to be Asian in America today. It deftly situates his own life and work within the broader journey of Asians in America, from the mid-1800s through the present. The book was inspired by the birth of his daughter, whose mother is non-Asian. Thinking about how his child would come to navigate her hyphenated identity led Kang to reflect on his own struggles with these questions, and on the struggles of his peers, and on those of the generations that came before.

A New Identity

“Asian American” as an identity was born in Berkeley in 1968. The term was coined by the Asian American Political Alliance (AAPA), which sought to forge a new pan-ethnic coalition, modeled on the black power movement (and the nascent Chicano movement), to address challenges that different Asian groups held in common.

Through the 1960s, one thing most of the largest Asian groups in America shared was an intimate connection to U.S. military intervention abroad, from the pacification and eventual conquest of Hawai’i, to the colonization of the Philippines, to World War II and the subsequent occupation of Japan (where roughly 55 thousand U.S. soldiers remain stationed to this day), to the Korean War (nearly 29 thousand U.S. troops continue to be stationed in Korea) and the Vietnam War (where U.S. withdrawal was accompanied by ambitious refugee resettlement programs).

Large numbers of Asians became Americans in the wake of these conflicts by marrying one of the U.S. soldiers occupying their home country. Family unification policies eventually allowed parents, siblings, and other relatives of military spouses to come over as well. These migrants ended up living, and building rich community ties, on or near military bases. Other Asians directly served in the military themselves throughout U.S. history, with many attaining naturalized citizenship in exchange for fighting on America’s behalf.

Consequently, from the late 1800s through the mid-1960s, Asian America had a particularly intense, ambivalent, and complicated relationship to the United States and its war machine.

Beyond the invasions and occupations abroad, the U.S. has a long and shameful history of domestic oppression, exploitation, exclusion, and violence against Asians. In many respects, Chinatowns and Japantowns are living monuments to this history. (As Kang notes, Koreatowns were a bit different. They were established later, as a positive project, to carve out an ethnic enclave for Korean Americans that rivaled or exceeded the Chinatowns and Japantowns that were flourishing in many U.S. cities at the time.)

The AAPA constructed an “Asian American” identity around this common history, organizing students of Asian ancestry to resist discrimination at home and military adventurism abroad. But from the outset of the project, there were tensions along the lines of ethnicity and class. And before long, even the common threads of war and domestic oppression would grow more tenuous. 

Kang details how immigration was tightly restricted during the period that American oppression, violence, and exclusion of Asians was most pronounced. At the time the U.S. began to open up again, the most egregious hostility and restrictions had been done away with. Indeed, one reason the laws could be liberalized is because the public had grown less hostile towards immigration in general, and to Asian Americans in particular, in the period following World War II. 

Despite this liberalization, when the 1965 Hart-Cellar Act relaxed U.S. immigration restrictions, the White House downplayed its likely impact. President Lyndon Johnson insisted that the legislation wasn’t that big of a deal and that it wouldn’t change the fabric of U.S. society much in the long run. He was wrong.

Today, immigrants’ share of the total U.S. population is approaching levels not seen in more than a century. Asian migrants have been key drivers of that growth. Through the 1970s and ’80s, a plurality of all U.S. immigrants hailed from Asia. Asian migrants were briefly outpaced by immigrants from Latin America in the ’90s and early ’00s, but since 2008 a plurality of new migrants to the United States have been Asian once again. Since 1965, Asian Americans have risen from less than one-half of one percent of the U.S. population to more than 6 percent (according to 2020 U.S. Census estimates). The total number of Asians in America today is roughly 20 times what it was when Hart-Celler was signed into law.

Consequently, for most Asian Americans, their family history in the U.S. begins after 1965. In Kang’s verbiage, they are children of Hart-Celler.

These post-Hart-Celler waves of migrants generally had no direct connection to the worst of America’s mistreatment of Asians. Neither they nor their parents nor their grandparents nor any direct ancestor experienced internment, legal exclusion, or the most vicious strains of racism and racialized violence against Asians in America.

Moreover, after the fall of Saigon in 1975, U.S. military operations largely pivoted away from East Asia, growing increasingly focused on the Middle East and North Africa instead. Immigration patterns also shifted away from Asian countries where the U.S. had waged major conflicts. In recent decades, Chinese and Indian immigrants have come over in much higher numbers than migrants from other Asian countries, with these two groups now amounting to nearly half (45 percent) of the contemporary Asian-American population. As a function of these changes, the imprint of the United States military and its campaigns abroad—both the scars and the ties—have grown markedly less pronounced within America’s Asian population as well.

For the children of Hart-Celler, America largely represented freedom, opportunity, and hope. For all its flaws, America was less corrupt, nepotistic, and parochial than the countries they hailed from. There were fewer barriers to mobility. There was more stability and opportunity. Many from ethnic or religious minority subgroups faced markedly less persecution in the U.S. than they did in their countries of origin. The post-1965 immigrants flocked to the U.S. because they believed in the American dream, and their children often embody the realization of that dream, even if they come to hold a more jaundiced view of the U.S. than their parents.

Luxury Beliefs

Generally speaking, Asian migrants have been able to build comfortable lives in America and to see their children flourish here. According to several conventional metrics of success, Asian Americans have managed not just to match whites on average but to exceed them. But not all Asian Americans have been able to flourish the same way. Asians are the most socioeconomically polarized racial and ethnic bloc in the U.S., with particularly stark divisions along the lines of national origin.

Chinese, Japanese, Korean, Filipino, Taiwanese, Thai, Malaysian, Sri Lankan, Indonesian, Pakistani, and Indian Americans all enjoy educational attainment rates and average household incomes that are significantly higher than overall U.S. averages. Vietnamese Americans are roughly at level with the U.S. averages on these measures. Bangladeshi, Hmong, Cambodian, Burmese, Bhutanese, and Laotian Americans, however, have much smaller and less-established populations in the U.S. Consequently, they do not have the same access to ethnically oriented networks and infrastructures to help them, and they often migrate to the U.S. with lower levels of pre-existing “cultural capital” than other Asian subgroups as well. These populations tend to have household incomes and/ or rates of educational attainment that fall significantly below the U.S. average—and as a result, they tend to be absent from most discussions about Asian America. That discourse, Kang argues, is fundamentally by and for elites.

Since most contemporary Asian Americans have no direct connection to America’s history of violence, marginalization, and oppression, they tend instead to learn about it in college: in their classes, through participation in affinity groups, through engagement with peers and consumption of “woke” media. The “Asian American” identity was born in college, and remains tied heavily to institutions of higher learning. 

As Kang notes, being imbibed into the history of violence and exclusion against Asians in the U.S. at the same time one is pursuing professional credentials tends to have somewhat contradictory effects. It alienates Asian-American elite aspirants from America’s preferred self-narratives even as it helps them “see” themselves more clearly in U.S., to feel like they have a voice and a place here, to understand the deep and longstanding role people “like them” have played in American society. It enhances Asian Americans’ sense of precarity and victimhood even as it helps them fit in better among the elites they hope to join.

Indeed, Kang argues, one reason college-educated Asian Americans gravitate toward this discourse is because they come to recognize that upward mobility in the knowledge economy is largely contingent on pleasing white liberal gatekeepers—on mirroring their values and fitting into their worldviews. Leaning into “woke” identitarian discourse is recognized as a reliable means of demonstrating that one has the educational pedigree and moral character to belong among the Harvard, Google, New York Times, and McKinsey & Co. crowd. Conspicuously lamenting various forms of systemic disadvantage can serve as both a signal and a reinforcer of one’s (actual or aspirational) elite status.

For instance, Asian Americans affiliated with prestigious knowledge-economy institutions tend to express strong support for race-based affirmative action (which, as practiced at elite colleges and universities, is widely perceived to disadvantage Asian applicants relative to people of other backgrounds). Likewise, although Asian Americans rely heavily on standardized testing to gain admittance to elite educational institutions, many of those who have successfully gained admission into those institutions express openness to abolishing standardized testing henceforth in the name of racial justice.

The social psychologist Rob Henderson has defined positions like these as “luxury beliefs.” For those who have already managed to get into their desired school, the persistence of affirmative action or the elimination of standardized testing would not adversely affect them. After all, they’ve already gained admittance. Indeed, the elimination of standardized testing may even help their children reproduce their class position. College essays (typically relied upon more heavily in lieu of standardized tests) tend to track parental socioeconomic status even more closely than SAT scores do. New immigrants hoping to break into elite institutions for the first time would find it far more difficult to outcompete the children of established Asian-American elites on admissions essays than on standardized tests. For incumbent Asian elites, then, an embrace of fashionable professional-managerial class ideas on affirmative action and testing costs them nothing and provides a range of benefits—from helping them fit in with liberal white peers to helping restrict and weaken competition from future cohorts of elite aspirants. 

However, things look much different for first-generation Asian migrants hoping that their children will achieve mobility in the U.S. Or for those who went to college, but couldn’t get into the schools they wanted; who got a good job, but not the kind of job they hoped for. Or for those who imagine they might have attained had they made it into their target school—whose families are proud, but not the way they would have been if their child was an alumnus of Harvard, Princeton, or MIT. Among populations like these, Kang highlights, the widespread embrace of affirmative action, the elimination of standardized testing, etc. among already-successful Asians is often met with resentment.

It Gets Lonely Near the Summit

It is a particular subset of Asians in America that struggles with a hyphenated identity. Older, first-generation immigrants and those who are less educated and/or less affluent tend to understand themselves either as Americans who happen to be of (say) Korean ancestry or as Koreans who happen to live in America. They don’t wrestle over conjunctions like “Korean-American” and the contradictions contained therein. A pan-ethnic “Asian-American” identity that puts Koreans under the same umbrella as Mongolians, Indians, and Indonesians is even less meaningful or useful to them.

The notion that all these groups, plus Hispanics and black people in all their internal diversity, could be integrated into an even broader group, “people of color,” juxtaposed against whites, would seem even more absurd. First, because many migrants want themselves and their children to actually get along with whites and to be assimilated into the mainstream. Second, because in many communities where Asian Americans cluster, there are deep and longstanding tensions between people of Asian ancestry, Hispanics, and African Americans. 

Kang provides an insightful survey of the persistent tensions and occasional solidarity between Asians and other minority groups in Chapters 3 and 6. He goes on to argue that, although hyphenated identities, race-making narratives and pan-ethnic appeals have little resonance for many Asians in America, they nonetheless feel urgent and deeply meaningful for younger Asian immigrants, second- and third-generation migrants, and current and aspiring professionals. Kang calls Asians in these latter categories “the loneliest Americans.” 

They feel like an “other” in the U.S. but would often be out of place in the countries their families hail from as well. They don’t feel “white” and don’t aspire to become “white.” Yet although they are proud of their ethnic background, they also seek to transcend it. They strive aggressively to attain prestigious credentials and jobs, and often to move into predominantly white neighborhoods. Yet they simultaneously feel intense guilt, shame, and vertigo associated with social mobility, and with integration into elite institutions and predominantly white social circles. They face problems on the basis of their race and ethnicity, but they also recognize that their challenges may seem relatively trivial to others. For instance:

  • They and their children generally attend especially great K-12 schools, but are regularly bullied, shunned, or exoticized therein. Although Asians tend to experience far less bullying overall than other racial or ethnic groups, they are among the most likely to be targeted for harassment specifically on the basis of their race and ethnicity.
  • On average, Asian Americans possess the highest levels of educational attainment in America. But the most prestigious schools have de facto caps on Asian admissions in order to attain a sufficiently “diverse” student body, so Asians have to perform at a higher level than people of other backgrounds to have any shot at attending the very best institutions. Moreover, although the vast majority of young people from most Asian ethnic groups do go to college somewhere, those who wash out at high school tend to be significantly worse off than whites who possess similar levels of education.
  • Those who attain a college degree tend to end up with good jobs. But Asians often face various forms of microaggressions in the workplace, and are often excluded from the positions at the very top of their organizations (a phenomenon called the “bamboo ceiling“).
  • Despite being overrepresented within professional circles, Asian Americans tend to be significantly underrepresented in U.S. television, film, and literature. And they are often depicted in unfortunate ways when they are rendered visible. Asians also tend to be significantly underrepresented in local, state, and national elected offices.
  • Asian Americans face racialized animus, albeit not to the same degree as other racial and ethnic groups. (A recent NBER study found that Asian Americans have been able to attain such extraordinary success relative to other minority populations in large part because, after WWII, they stopped being directly oppressed the way other racial and ethnic minorities continued to be.) Asians experience hate incidents, but significantly less often than other racial and ethnic groups—and these usually involve words, vandalism, and social shunning rather than direct physical violence. When direct physical violence does occur, Asian-American professionals are expected to conform with the prevailing practice of making a big deal about the race and ethnicity of the perpetrator when they happen to be white but making absolutely no mention of the race of the aggressor should they be non-white. In the wake of those attacks, they are expected to offer up sentiments of racial solidarity—even as many of those they seek solidarity with continue to view Asians as “privileged” minorities with problems less pressing than their own.

This is a key source of the “loneliness” Kang describes: Because Asian Americans are generally doing better than other racial and ethnic minority groups, and often better than the typical white American for that matter, it is difficult to get people to care much about their problems and their struggles. Insofar as they have internalized the prevailing ethos of the professional-managerial class, they often feel a bit of guilt or shame themselves for focusing on challenges Asians face in the U.S.

Many Asian Americans, particularly males, are growing hostile toward this state of affairs. Chapter 7 explores the rise of “radical” Asian movements blossoming in the United States, which tend to be heavily focused on preserving the means of social mobility for Asian migrants, pushing through the bamboo ceiling, asserting Asians’ rightful place in American culture and politics, and challenging adverse sexual dynamics among Asian men and women (where the latter are fetishized and heavily pursued by non-Asian men, while the former are often depicted and treated as non-sexual entities).

These movements tend to draw on a wild mélange of black nationalist ideology, “redpill” manosphere writings, and “woke” symbolic politics. Although they define themselves in opposition to the mainstream liberalism of most other Asian-American professionals (who are perceived to have sold out in a Sisyphean bid to gain acceptance among liberal whites), Kang astutely observes that the “radicals” are not as far removed from their adversaries as they seem to believe.

For instance, mainstream Asian elites often identify as “people of color” and express solidarity with others who do the same. Yet these alliances typically amount to little more than a multicultural elite engaging in negotiations and competition with white peers for more representation in The New York Times, Hollywood productions, the C-Suite, and the Ivy League. The “radicals” likewise remain centered overwhelmingly on professional-managerial class concerns: elite schools, bamboo ceilings, and so on. The people who take part tend to be highly educated and relatively affluent, just like their mainstream peers. They may “demand” rather than request respect and recognition—more in principle than in practice to date—but they remain just as preoccupied with the “white gaze.” (They seek respect and recognition from whom?) And they obsess about their position relative to whites with respect to the dating market, media and political representation, etc.

In the same way that much postcolonial literature ultimately remains fixated on “the West” and produces roughly the same image of power relations that orientalist scholarship did, the “radical” Asian movement presents itself as an alternative to professional-managerial Asian politics but is probably better understood as a variation of the same.

Working-class, older, and first-generation Asians, for their part, have been shifting toward the GOP recently (both during the Trump years and after). In other words, the growing political divide between knowledge-economy professionals and everyone else seems to be playing out within Asian-American circles just like it is in the public writ large. The “loneliest Americans”—who tend to be deeply enmeshed in the symbolic professions and consolidated in knowledge economy hubs—could find themselves even more isolated down the line.

Kang is persistent in trying to draw readers’ attention to the class dynamics at play in these discussions of racial and ethnic identity. For this reason and many others, his book provides an outstanding entry point for understanding where we are as a country today, how we got here, and where things might be headed. The book is technically “about” people of Asian ancestry, but the story of Asians in America is in many respects a story about America writ large.

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How Anti-Smut Activists Made ‘Louie, Louie’ Famous


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In the mid-1950s, rock ‘n’ roll music was widely condemned as a public nuisance and threat to public safety, and the junk science of the day claimed that teens were “addicted” to the music. Police officials across the country—in Connecticut, New Jersey, Maryland, Pennsylvania, Rhode Island and other states—blamed juvenile delinquency and general unrest on rock ‘n’ roll. Minneapolis in 1959 banned a show hosted by Dick Clark “for the peace and well-being of the city” because the police chief was convinced that it would spark violence. It was not an isolated overreaction. Other cities that banned rock ‘n’ roll shows based on public safety concerns included Boston, Massachusetts; Bridgeport and New Haven, Connecticut; Asbury Park, New Jersey; Santa Cruz, California; and Birmingham, Alabama.

A 1955 Los Angeles Times article described rock ‘n’ roll as “a violent, harsh type of music that, parents feel, incites teenagers to do all sorts of crazy things,” and it quoted a psychiatrist who opined that rock ‘n’ roll was a “contagious disease.” Others in the psychiatric field concurred. Dr. Francis J. Braceland, an internationally known psychiatrist who testified at the Nuremberg trials and would serve as president of both the American Psychiatric Association and the World Psychiatric Association, called rock ‘n’ roll “cannibalistic and tribalistic,” comparing it to a “communicable disease.” The Washington Post in 1956 quoted Dr. Jules Masserman, another former president of the American Psychiatric Association, as saying that rock ‘n’ roll was “primitive quasi-music that can be traced back to prehistoric cultures.” The notion that this music was dangerous and could exert some mysterious power over young minds was not out of the mainstream.

Such pronouncements may help explain the bizarre overreaction by authorities to a 1963 song with almost unintelligible lyrics recorded by a Portland, Oregon, garage band called the Kingsmen. The song, “Louie, Louie,” was written in 1956 by rhythm and blues artist Richard Berry, but it came to prominence in the early 1960s after being recorded by several bands, including Paul Revere and the Raiders and, more notably, the Kingsmen. It was nothing more than a lovesick sailor’s lament to a bartender about wanting to get back home to his girl. But because Jack Ely, the Kingsmen’s lead singer, slurred the words beyond recognition, it became something of a Rorschach test for dirty minds. Schoolyard rumors about filthy lyrics in “Louie, Louie” stoked parental fears, prompted fevered complaints, and ultimately triggered a prolonged nationwide investigation. The controversy made “Louie, Louie,” in the words of rock critic Dave Marsh, the world’s most famous rock ‘n’ roll song.

A letter from one panicked mom to then–Attorney General Robert Kennedy captured the general tone:

My daughter brought home a record of ‘LOUIE LOUIE’ and I…proceeded to try and decipher the jumble of words. The lyrics are so filthy that I can-not enclose them in this letter….I would like to see these people, The ‘artists,’ the Record company and the promoters prosecuted to the full extent of the law.

We all know there is obscene materials available for those who seek it, but when they start sneaking in this material in the guise of the latest teen rock & roll hit record these morons have gone too far.

This land of ours is headed for an extreme state or moral degradation what with this record, the biggest hit movies and the sex and violence exploited on T.V. How can we stamp out this menace? ? ? ?

She was not alone. Indiana’s Democratic governor, Matthew E. Welsh, claimed that the record was so obscene it made his “ears tingle,” and he announced a statewide ban on both radio play and live performances of the song. (It was not an “official” ban. The governor merely reached out to his contacts at the Indiana Broadcasters Association to make sure that the record was not played in his state.)

Official or not, the controversy triggered a two-and-a-half-year investigation that involved efforts by six FBI field offices, several U.S. attorneys, and the Federal Communications Commission (FCC) into the supposedly corrupting lyrics of “Louie, Louie.” FBI Director J. Edgar Hoover corresponded with an anti-pornography activist about the song, and he was kept apprised of the inquiry. Record label personnel were questioned, and even the song’s composer was interviewed (although not, apparently, Jack Ely, the supposedly obscene performer). Some who were interviewed were read their rights, according to the FBI’s notes to the file. Recordings were shipped off to FBI laboratories where the records would be played back at various speeds, with FBI agents straining to pick up a dirty word somewhere in the mix.

United Press International (UPI) reported (prematurely) that the FBI, the Post Office, and the FCC had dropped their investigations in February 1964 “because they were unable to determine what the lyrics of the song were, even after listening to the records at speeds ranging from 16 rpm to 78 rpm.” That report was wrong in a couple of important respects: The investigation was far from over—it was just getting underway, really—and it was never clear that the Post Office was involved (although this may have been a subconscious nod to Anthony Comstock, the Victorian-era anti-vice crusader and “special agent” for the Post Office who famously used his power over the mails to oppose obscene literature, among other vices).

The UPI report that FBI investigators could not understand the words was accurate, however, as reflected in correspondence from the FBI laboratory returning materials submitted for review by the Tampa field office: “The Department advised that they were unable to interpret any of the wording in the record and therefore could not make any decision concerning the matter.” Yet the investigation would drag on for almost two more years.

A June 1965 Justice Department memorandum summarizing the Detroit office inquiry, which included input from the record company, the National Association of Broadcasters, and the FCC (each of which found the complaints to be baseless), may have come closest to the truth. The FCC official, after approximately two years of receiving “unfounded complaints concerning the recording ‘Louie Louie,'” concluded that, to the best of her knowledge, “the trouble was started by an unidentified college student, who made up a series of obscene verses for ‘Louie Louie’ and then sold them to fellow students.” But the fact is that no one knows for sure how it all started.

The rumor of “dirty lyrics” persisted, passed on by word of mouth, fueled by Ely’s inarticulate vocals and Gov. Welsh’s tingling ears. Perhaps the rumormongers can be forgiven their mistake. As FBI investigators put it, “with this type of rock and roll music, a listener might think he heard anything being said that he imagined.”

The FBI was a year and a half into the investigation before someone thought to check out the lyrics on file with the U.S. Copyright Office. Here is what they found:

Louie, Louie, me gotta go. 
Louie, Louie, me gotta go. 
A fine little girl, she wait for me; 
me catch a ship across the sea. 
I sailed the ship all alone; 
I never think I’ll make it home 
Louie, Louie, me gotta go. 
Louie, Louie, me gotta go. 

Three nights and days we sailed the sea;
me think of girl constantly. 
On the ship, I dream she there; 
I smell the rose in her hair. 
Louie, Louie, me gotta go. 
Louie, Louie, me gotta go. 

Me see Jamaica moon above; 
It won’t be long me see me love. 
Me take her in my arms and then 
I tell her I never leave again. 

According to one source interviewed for the FBI’s file (whose identity was redacted), “it is obvious [that] the lyrics to this record are not pornographic or objectionable in any way.”

Nevertheless, reports in various other FBI files contained different variants of the “schoolyard” version of “Louie, Louie,” such as:

Oh, Louie, Louie, Oh, No, 
Get her way down low, 

Oh, Louie, Louie, Oh, Baby, 
Get her way down low, 

A fine little girl awaiting for me 
she’s just a girl across the way 
Well I’ll take her and park all alone 
She’s never a girl I’d lay at home 

(Chorus repeat) 

At night at 10 I lay her again 
Fuck you girl, Oh, all the way 
Oh, my bed and I lay her there 
I meet a rose in her hair. 

(Chorus repeat) 

Ok Let’s give it to them right now! 
She’s got a rag on and I’ll move above 
It won’t be long she’ll slip it off 
I’ll take her in my arms again 
I’ll tell her I’ll never leave again. 

(Chorus repeat) 

Get that Broad out of here! 

Needless to say, the imagined words of “Louie, Louie” bore little resemblance to the actual lyrics. Time and again, FBI investigators scrutinized the song and each time reached the same conclusion: They couldn’t make out the words.

None of this mattered to those demanding FBI action. One anti-porn activist from Flint, Michigan, wrote to Hoover in June 1965 out of concern over “the alarming rise in venereal disease, perversion, promiscuity and illegitimate births in the teen groups.” She said that her organization knew about the “dual set of lyrics” associated with “Louie, Louie,” and she claimed that the Kingsmen had masterminded an “auditory illusion.” So it was irrelevant whether you could prove which set of lyrics was being used to perform the song, “since they were capitalizing on its obscenity” and “every teenager in the county ‘heard’ the obscene[,] not the copyrighted lyric.” In other words, the song must be obscene if enough people became convinced that they had heard something “bad,” no matter what words had been sung. Hoover wrote back to assure the correspondent that the FBI was actively investigating the matter and kindly enclosed copies of two Bureau publications—Poison for Our Youth and Combatting Merchants of Filth: The Role of the FBI.

The activist responded the following month to say that her group had conducted its own investigation of “Louie, Louie” and had played back the original recording at various speeds. She reported that when the record was played “somewhere between 45 and 33-1/2 RPM…the obscene articulation is clearer.” Her group compared the record with a recording of the song taken from a televised performance by the Kingsmen and reported that when “the copywritten lyric” was performed “intelligibly,” then “by no stretch of the imagination is the obscene lyric audible.” It is hard to tell what the zealous informant was trying to say. Was it that the Kingsmen performed a “clean” version of “Louie, Louie” for television but that the record was a subliminal “dirty” version? It is impossible to know what Hoover thought of this “field report.” He wrote a cordial letter back (enclosing more FBI anti-smut pamphlets), but also had the Detroit office investigate the woman and her group. Agents reported back that the Bureau had “nothing derogatory concerning [the] correspondent.”

The FBI finally closed its investigation on October 10, 1966, with a brief, nondescript memo from the FBI labs to the New York office returning the recording and the lyrics sheet. But here’s the oddest part. For all the scrutiny devoted to this song and its lyrics, the countless hours that FBI agents and lab technicians spent listening to the record at different speeds, and the many fans (and critics) obsessively searching for something dirty, no one seemed to notice that Lynn Easton, the Kingsmen’s drummer, fleetingly uttered the word “fuck” just under a minute into the song. He had fumbled with his drumsticks and spontaneously vocalized his frustration at the mistake. But because the song was recorded in one take, the accidentally improvised expletive stayed in, indistinct and in the background. There is a lesson about human nature in this: People rarely find what they do not seek, but, quite often, they can clearly see what they are looking for—even when it isn’t there.

The whole “Louie, Louie” episode bore the hallmarks of a classic Comstockian debacle—it originated in a moral panic about nothing and was driven by apocalyptic rhetoric about the mortal dangers threatening youth; the would-be censors ultimately were embarrassed by their actions; and, in the end, the controversy only magnified public attention and interest in the work. The FBI files documented this effect: One September 1965 memorandum said that when first released on the West Coast, record sales were poor, but after Indiana’s governor issued his “ban” and the obscenity rumor spread, sales soared and hit the 2 million mark. Whether to quell the rumors or to capitalize on them, the record label offered a $1,000 reward to anyone who could substantiate the reported obscenity. No one ever did.

Welsh came to regret that “Louie, Louie” would be the only thing for which he would be remembered. He tried to downplay the incident in a 1991 interview, calling it “a tempest in a teapot,” and he emphatically denied being a censor. He never banned the record, Welsh told Marsh for his definitive book on the subject. He had merely suggested to Reid Chapman, president of the Indiana Broadcasters Association, “that it might be simpler all around if it wasn’t played.” But “it doesn’t take a First Amendment scholar to see the contradiction,” Marsh concluded, for “if a record isn’t played at the suggestion of the state’s chief executive, it has been banned.”

After all this, Anthony Comstock’s ghost still lingers, and Welsh would not be the last public official to be burned by wading into the “Louie, Louie” controversy. In May 2005, school superintendent Paula Dawning of Benton Harbor, Michigan, decreed that the middle school marching band could not perform “Louie, Louie” in the town’s Grand Floral Parade. She explained that her decision was because of the song’s “degrading” and “vulgar” lyrics even though the band was to perform an instrumental version. Her decision was reported nationwide—and roundly mocked—and Dawning ultimately relented. She stood by her decision, though (both of them), telling reporters that her real concern was “parental influence.” She initially issued her ban, she explained, “because one parent questioned the appropriateness for that particular song,” but rescinded the decision after “listening to a majority of the McCord Renaissance Middle School band parents.” Dawning said that she was merely guarding “the right of parents to set standards for their children.” She did not mention whether the coast to-coast ridicule she had received or a public official’s constitutional obligation not to succumb to a heckler’s veto were factors.

In the end, defenders of “Louie, Louie” got the last laugh. April 11 is listed in the National Special Events Registry as International “Louie, Louie” Day, and the states of Washington and Oregon have proclaimed their own observances of “Louie, Louie” Day. The city of Seattle has done the same, and Tacoma, Washington, sponsored an annual “LouieFest” from 2003 to 2012. Peoria, Illinois, hosts an annual “Louie, Louie” parade and festival (answering the age-old question: Will it play in Peoria?), and Philadelphia had “Louie, Louie” parades from 1985 to 1989 (until the annual event was canceled due to rowdiness). In 1985, Washington considered making “Louie, Louie” the state song, but the effort fizzled. Still, the song is played during the seventh-inning stretch at all Seattle Mariners home games. Politicians (for the most part) now embrace the once-taboo song, and Washington Gov. Christine Gregoire even danced to the tune at her inaugural ball in 2005. She did not say whether it made her ears tingle.

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Prof. Jonathan Turley (GW) on the Trump Civil Incitement Opinion

From today’s item in The Hill:

When Trump’s lawyers said his language was largely indistinguishable from that of many Democrats like Rep. Maxine Waters (D-Calif.), Mehta chided them for playing “a game of what-aboutism.”

That “what-aboutism,” however, is precisely the point. The selective imposition of liability for speech is the very thing that the First Amendment is designed to prevent.

As rioting raged in Brooklyn Center, Minn. and nationwide in 2020, Congresswoman Waters went to Minnesota and told protesters there that they “gotta stay on the street” and “get more confrontational.” Others have used language very similar to Trump’s in declaring elections to be invalid (including Hillary Clinton calling Trump an “illegitimate president“) or urging supporters to “fight” or “battle” against Republicans; Rep. Ayanna Pressley (D-Mass.) once said, “There needs to be unrest in the streets for as long as there’s unrest in our lives.”

All of those statements arguably were reckless but clearly protected speech.

Free speech demands bright lines. While this is a “one-of-a-kind case,” Trump’s comments were hardly unique….

I think the court’s decision would likely apply only to situations where some people already appear to be gathered and prepared to engage in imminent illegal conduct, so that might not include the Clinton and Pressley examples. But it might well cover a repeat of the Waters example (whether it’s addressed to gathered crowds in person or remotely), and others like it.

For my take on the case, see here.

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Sealed Criminal Prosecution of Wealthy Connecticut Voyeur

From the Stamford Advocate (Pat Tomlinson) Monday:

A judge last week sealed the case in which a 53-year-old Greenwich woman pleaded guilty to a host of voyeurism charges that stemmed from incidents in which she “knowingly photographed, filmed and recorded” three individuals, one of whom was a minor, without their consent, according to court records.

Hadley Palmer, who lives in a multimillion-dollar seaside mansion in the wealthy Belle Haven neighborhood in Greenwich, pleaded guilty Jan. 19in state Superior Court in Stamford to three counts of voyeurism and one count of risk of injury to a minor as a part of a plea deal with prosecutors.

Palmer was originally arrested last year on additional charges, including employing a minor in an obscene performance, a Class A felony, conspiracy to employ a minor in an obscene performance and second-degree child pornography, police said….

Attorneys representing the victims in the case supported the motion to seal the case as well….

The state initially argued in favor of redacting documents in the case to protect identities but later said the process proved “impossible to perform.”

The Associated Press was the lone dissenting voice against sealing the case, arguing [unsuccessfully] at a Feb. 1 hearing that documents could be redacted and pseudonyms used as in other state court cases involving crimes against children to protect the victims while allowing the public to see the serious nature of the allegations….

Can’t be right, I think; I hope some media organizations or public interest firms specializing in open records move to intervene, and if necessary appeal to the Connecticut Appellate Court (which provides prompt review in such cases). I’d have liked to do that myself, but I’m too backlogged with other cases, including ones related to unsealing other court records.

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Dampening The Fire On The Fifth Circuit

Generally, workplaces are not static. Over time, leaders with different styles come and go. Organizations are restructured. Workers who do not work out will leave, or are asked to leave. New blood is brought in to reinvigorate the organization. And, if the workplace is failing, eventually, the organization itself may become defunct.

These rules do not apply to the federal courts of appeals. Their membership is largely static. New judges are added on an infrequent basis, while senior judges tend to stick around. There are no leaders. (No, the chief judge does not count). Every member of the court has an equal vote. And, with rare exception, judges who are unhappy remain ensconced in their life-tenured sinecures. Finally, federal courts cannot be abolished–well, they probably can’t be abolished. These unique dynamics of the federal courts of appeals make interpersonal relationships very different than in traditional workplaces.

These principles came to mind when I read a recent Fifth Circuit decision, Sambrano v. United Airlines. The all-Texas panel includes three prominent conservative judges appointed by three presidents over the course of three decades: Judge Jerry Smith, appointed by President Reagan; Judge Jennifer Walker Elrod, appointed by President W. Bush; and Judge Andy Oldham appointed by President Trump. The case involved a hot-button issue: could a private employer require employees to be vaccinated. The legal issue was somewhat mundane: could a federal court issue a preliminary injunction in a Title VII case? (I wrote about that question here).

Judges Elrod and Oldham wrote a per curiam opinion, finding that a preliminary injunction was permissible. Judge Smith wrote a dissenting, finding that a preliminary injunction was not permissible. But Judge Smith’s dissent went far, far beyond disagreeing about the legal principles. He seems to be sending a much broader signal that something is amiss with his colleagues, and on the Fifth Circuit.

First, Smith suggests in several places that Elrod and Oldham distorted the law to reach their preferred result.

Notice how few of these facts appear in the majority opinion. They would get in the way of a good story.

If I didn’t know better, I might surmise that the majority didn’t even read the plaintiffs’ brief.

So once again, the majority junks our precedent to get the answer it wants.

Indeed, Smith writes that his colleagues distorted the law to achieve an outcome that conservatives would favor. He suggested the judges have a “favored cause” and a result they find “most satisfying.”

Once again, the majority snubs the Supreme Court to remake the law for these plaintiffs and their favored cause.

I could discern no reason for the majority’s selective orderliness,41 but for every error pointing toward the result my colleagues find most satisfying.

Smith also writes that “some quarters” will find the decision popular:

Instead, the bigger threat is the use of a new decisionmaking process that reaches a result which—while unavailable under established law—will prove popular in some quarters.

In some quarters, it may seem innocent enough to accept the majority’s methodology (i.e., announcing major rulings in an unpublished opinion) for this important case only.

It is common enough to describe a decision as a ticket good for one ride. But Judge Smith ladles on an extra heaping of slop for this “blue plate special.”

I call this the “one and done” method of decisionmaking. Two judges randomly selected for a panel decide that—for whatever reason—a particular result is correct but can be achieved only by divorcing the opinion from the common-law tradition, by evading precedent, and by obscuring the path in the shroud of an unpublished per curiam opinion. The obvious result is to foster whatever happens to be the “Blue Plate Special” cause on a given day.

Smith’s criticism is not limited to his colleagues. He also trains his fire on the lower courts:

The rub is that by its ruling, this panel majority gives leave for any loose-cannon district judge[FN 96] or future Fifth Circuit majority of two to decide that a cause is so compelling that “the law be damned, we will find a way.”

[FN 96] If there are no such district judges in this circuit today, someday there could be jurists who are delighted that Supreme Court and Fifth Circuit precedent of which they aren’t fond need not be followed.

I have to imagine he has Judge Reed O’Connor in mind, but there are probably other recent appointees in the club. Recall that Judge Smith would have granted rehearing en banc in the ACA case that became California v. Texas. (Judge Smith has some history with Obamacare).

Second, Smith suggested that Elrod and Oldham, and perhaps other judges, were being led astray by their “zealous” law clerks:

It’s difficult to imagine what creative lawyers—not to mention federal judges spurred on by zealous law clerks—will do with these new tools.

This trope is all-too-common on the left. See Joe Patrice at Above The Law:

Though perhaps [Smith’s] most insightful observation is where he zeroes in on the reality of the FedSoc clerkship pipeline. . . . FedSoc pumps out ideologues to push judges right-ward as clerks, those clerks become judges, the next set of clerks push them right-ward.

I would seriously second-guess anything I wrote if Joe Patrice found it “insightful.”

I clerked for two federal judges, and am very familiar with many other judges. I can say, with a very high degree of certainty, that Judges Elrod and Oldham are not led by their law clerks. Without question, law clerks try to pitch their judges on one idea or another. But the judge has the final say. When I clerked, I gave the judge a draft dissent that would have made some very sharp points. I never received any feedback on the draft. Later, I learned that the judge discarded my draft, wrote his own opinion, and filed it. Such is the life of a law clerk. To be sure, there are stories that some infirm Supreme Court justices allowed their law clerks to run the show. (Justices Douglas and Blackmun come to mind). But the suggestion that Elrod and Oldham are in such a state of decrepitude is not plausible.

Moreover, it is insulting to suggest that federal judges are subordinate to recent law school graduates. These sorts of barbs unnecessarily increase the temperature on the court, and cast a pall on all law clerks, including those of Judge Smith. It’s best to leave the law clerks out of these clashes. Judges can hash these issues out at conference, or over Bourbon on Bourbon Street. Not in judicial decisions.

Third, Judge Smith shot up a flare over the Gulf of Mexico.

The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today’s ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.

Smith tries to soften his blows, and suggest that his “conscientious” colleagues were “well-intentioned.”

Alleging “ongoing coercion” now supplies a private right to preliminary injunctive relief—not because of text, history, or precedent, but because two well-intentioned but misguided judges say so.

The majority, with what I’m sure are the most wholesome intentions, junks facts, text, history, and precedent, resulting in a one-off change in the law that alters the result for these parties.

This is no personal criticism of my two conscientious co-panelists, who serve with integrity, dedication, and skill. It’s a main reason we have panels of three, allowing for honest differences on matters large and small.

I found these caveats largely unpersuasive. If Smith held these sentiments, his sixty-page dissent would not have been barnacled with ad hominem attacks. If the Good Ship Fifth Circuit is aflame, then Judge Smith helped to kindle the blaze. Everyone on the court should take a step back, and dampen the fire. They’ll all be aboard for a long time to come, and the rising tide will lift everyone.

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The Academic Freedom Podcast #12 on Encouraging Campus Free Expression

A new episode of The Academic Freedom Podcast from the Academic Freedom Alliance is now available. Subscribe through your favorite platform so you don’t miss an episode.

In this episode I talk with Dan Cullen, a professor of philosophy at Rhodes College and director of the Project for the Study of Liberal Democracy. He was a member of the Academic Leaders Task Force on Campus Free Expression. The task force was assembled by the Bipartisan Policy Center and recently released its report, Campus Free Expression: A New Roadmap. We talk about the challenges for free expression on college campuses, the responsibilities of various campus officials in building a better campus climate for free speech, and the recommendations in the report.

Listen to the whole thing here.

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