Tag: in-the-news

“It’s time that the reign of criminals who are destroying our city…come[s] to an end,”” said San Francisco Mayor London Breed, a Democrat, at a December 14, 2021 press conference. “It comes to an end when we take the steps to be more aggressive with law enforcement.”

We need to be “less tolerant of all the bullshit that has destroyed our city,” continued Breed, who declared a state of emergency in the city’s Tenderloin district a few days later, leading to an increased police presence in the epicenter of the city’s growing homelessness and addiction crisis. 

It was a moment that outraged the city’s progressive political establishment and was a major turnaround for Breed, who after the police killing of George Floyd in 2020 called for “ending the use of police in responding to non-criminal activity.” She was roundly criticized by groups like the Coalition on Homelessness, who called the move an “expansion of strategies that have been tried and failed” that would contribute to the “instability and poor public health outcomes” of people living on the streets. 

Michael Shellenberger, author of the new book San Fransicko: Why Progressives Ruin Cities, called Breed’s new “tough love” approach a “big step in the right direction.” The homelessness crisis, he says, is actually an addiction and mental health crisis enabled by progressive policies that permit open-air drug scenes on public property, prevent police from enforcing laws against crimes, and undermine the creation of a functional mental health care system. 

Reason spoke with Shellenberger, who’s a Bay Area activist and writer best known for his work on environmental issues and support for nuclear power. We talked about his foray into social policy, his critiques of both progressive and libertarian politics, Breed’s new approach, and how Shellenberger thinks America’s big cities can clean up their streets without grossly violating civil liberties. 

“Why is it that cities that ostensibly care the most about poor people, minorities, people suffering mental illness and addiction…Why do they treat them so terribly?” asks Shellenberger. “Is it a lack of housing? Is it a lack of rehab? What’s going on? So [answering those questions is] the reason for the book.”

Watch the full interview above.

Music credits: “Stay Strong,” by Iamdaylight, via Artlist

Photo Credits: Pax Ahimsa Gethen, Public domain, via Wikimedia Commons; Michael Shellenberger, CC BY-SA 4.0, via Wikimedia Commons; Drew G Stephens, CC BY-SA 2.0, via Wikimedia Commons; Foundations World Economic Forum, CC BY 2.0, via Wikimedia Commons

Interview by Zach Weissmueller, edited by Adam Czarnecki, opening graphic by Regan Taylor.

The post How Progressives Ruined San Francisco: Michael Shellenberger appeared first on Reason.com.

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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 Raymond Issa and Danaya Wright of the University of Florida. They are members of the Faculty Senate Ad Hoc Committee on Academic Freedom, which has released an interim report on academic freedom issues being experienced at UF. The committee was launched in response to the university’s effort to block professors in the political science department at the university from serving as expert witnesses in a voting rights lawsuit against the state. The administration claimed that providing such testimony would be a conflict of interest with those of the university as a branch of the state government. Academic Freedom Alliance, among others, objected to this decision, and the university eventually relented. A lawsuit against the university on this matter is still ongoing. The committee report discusses details of that case, but also provides new details on other instances of faculty being pressured to adjust their behavior out of concern for how state politicians might react. The committee’s investigation is continuing. In the podcast, we review the situation at the University of Florida and the findings of the committee thus far.

Listen to the whole thing here.

The post The Academic Freedom Podcast #10 on the University of Florida appeared first on Reason.com.

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From yesterday’s decision by Judge Sarah Merriam in Doe v. Gerken (D. Conn.) (now Stubbs v. Gerken):

[P]laintiffs, each of whom is or was a student at Yale Law School, allege that two deans of the Yale Law School, along with the Law School’s Director of Diversity, Equity and Inclusion, “worked together in an attempt to blackball” plaintiffs from the prestigious job opportunities that are typically available to Yale Law School students. Plaintiffs allege that defendants “attempt[ed] to blackball” them from such opportunities “as retaliation” for plaintiffs “refusing to lie” in support of Yale University’s investigation of a law school professor.

Pursuant to Rule 10 of the Federal Rules of Civil Procedure “[t]he title of the complaint must name all the parties[.]” “This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.” … “Identifying parties in a proceeding is an important dimension of publicness, as people have a right to know who is using their courts.” …

Courts have, however, “carved out a limited number of exceptions to the general requirement of disclosure of the names of parties, which permit plaintiffs to proceed anonymously.” … “[P]seudonyms are the exception and not the rule, and in order to receive the protections of anonymity, a party must make a case rebutting … the presumption of disclosure.” …

Plaintiffs contend that the Court should allow them to proceed anonymously because their “claims are highly sensitive and personal in nature.” Plaintiffs specifically contend that the use of their real names “will lead to further dissemination[]” of defendants’ alleged “harassing, false, defamatory, and retaliatory statements[]” about plaintiffs, which is “likely to result in social stigmatization.” …

Contrary to plaintiffs’ contentions, this action does not involve highly sensitive matters of the type recognized by other Courts in the Second Circuit. This case does not involve minors, allegations of sexual misconduct, or some other truly sensitive matter…. “[C]ourts have found that evidence of embarrassment, social stigmatization, and economic harm provides an insufficient basis for proceeding anonymously.” In sum, “courts should not permit parties to proceed pseudonymously just to protect the parties’ professional or economic life.” …

Second, plaintiffs have not adequately demonstrated that defendants or others will retaliate against them for filing this lawsuit. Plaintiffs rely on the alleged past retaliatory actions of defendants (which defendants categorize as “false”), but offer nothing to support the contention that “[f]urther identification of Plaintiffs poses a risk of retaliatory harm.” Here, defendants are aware of plaintiffs’ true identities. “[I]f a plaintiff specifically fears retaliation by defendants or their associates, prior disclosure to the defendants of the plaintiff’s identity might moot any request for anonymity.” For the same reasons, plaintiffs have not made an adequate showing that disclosure of their identities presents other harms….

Next, plaintiffs’ identities have not been kept confidential. John Doe in particular has been publicly identified by various media outlets. The Court takes judicial notice of this information as set forth in defendants’ briefing. “A plaintiff’s interest in anonymity is weakened where anonymity has already been compromised.” … [T]his factor also weighs in favor of disclosure.

The Court has considered the other factors [set forth by Second Circuit precedent on pseudonymity] and each generally weighs in favor of disclosure. Specifically: (1) plaintiffs are not particularly vulnerable to the harms of disclosure based on their status as graduate students (“If a plaintiff is not a child, this [vulnerability] factor weighs against a finding for anonymity.”); (2) plaintiffs are not litigating against a governmental agency; and (3) the public’s demonstrated interest in this litigation is furthered by requiring plaintiffs to disclose their identities…. “As a rule, lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties…. This is not a case that involves abstract challenges to public policies, but rather particular actions and incidents. Thus, open proceedings benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication. Indeed, it is the kind of case that further the public’s interest in enforcing legal and social norms.”

Finally, “[t]he public interest in scrutinizing judicial proceedings combined with the prejudice [defendants] would face from defending against claims prosecuted by an anonymous person at trial far outweigh [plaintiffs’] interest in not suffering professional embarrassment and any concomitant financial harm.” …

Plaintiffs, each of whom is or was a law student, should appreciate that “[l]itigation is quintessentially public and public disclosure is in general an inherent collateral consequence of litigation.” {Indeed, should this case proceed to trial, plaintiffs will likely testify as witnesses in open court. Thus, whether now or at a later stage of litigation, plaintiffs will have to face “public disclosure” that is “an inherent collateral consequence of litigation.”}

As I noted in December, this result was very likely, given the weight of the precedent on the subject, though not a foregone conclusion. For more on pseudonymity, see this article draft.

The post No Pseudonymity in Yale Law School DinnerPartyGate Lawsuit appeared first on Reason.com.

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The Centers for Disease Control and Prevention (CDC), whose previous advice about face coverings as a safeguard against COVID-19 paid little attention to large differences in the effectiveness of different mask types, recently revised its guidance to acknowledge that N95 respirators work better than reusable cloth masks or disposable surgical masks. As with earlier changes in CDC guidance, it is not exactly clear why the agency waited so long to highlight useful information about COVID-19, although the spread of the highly transmissible omicron variant may have something to do with it.

The CDC’s prior advice about “Types of Masks and Respirators” mentioned N95 masks as one option without giving any clear indication of how effective they are compared to the alternatives:

Masks are designed to contain your respiratory droplets and particles. They also provide you some protection from particles expelled by others.

Respirators are designed to protect you from particles, including the virus that causes COVID-19, and in doing so they also contain your respiratory droplets and particles so you do not expose others.

CDC continues to learn more about the effectiveness of different types of masks and respirators for preventing COVID-19.

The CDC noted that N95s “filter up to 95% of particles in the air when approved by NIOSH and proper fit can be achieved.” But it did not provide any corresponding estimate of how effective cloth masks are, and its advice about when an N95 might be appropriate was opaque. “Some situations may have a higher risk of exposure to COVID-19 than others,” it said. “So, you may want to consider the type of mask or respirator to wear depending on the situation.”

The CDC’s examples of “some situations” included using public transportation, especially in crowded conditions for extended periods of time; “taking care of someone who is sick with COVID-19”; and “working at a job where you interact with large numbers of the public.” It also mentioned that people who are especially susceptible to COVID-19 because they are “older,” have preexisting medical conditions, or have not been vaccinated might “want to consider the type of mask or respirator” they wear. Regarding N95s specifically, the CDC’s most direct advice was this: “When supplies are available, individuals may choose to use a basic disposable N95 respirator for personal use, instead of a mask, in some situations.”

By contrast, the CDC’s latest guidance about mask types, published on Friday, acknowledges that “some masks and respirators offer higher levels of protection than others” and that “properly fitted respirators provide the highest level of protection.” It warns that “loosely woven cloth products provide the least protection,” while “layered finely woven products offer more protection, well-fitting disposable surgical masks and KN95s offer even more protection, and well-fitting NIOSH-approved respirators (including N95s) offer the highest level of protection.”

The CDC adds that “a respirator may be considered in certain situations and by certain people when greater protection is needed or desired,” although it also suggests that the more effective masks “may be harder to tolerate or wear consistently.” The reference to limited supplies of N95s has been excised. So has the warning that N95s are incompatible with “certain types of facial hair,” which linked to this amusing illustration indicating that soul patches, Zorro mustaches, and side whiskers are OK, while goatees are questionable and Garibaldi beards, wet noodles, and Dali mustaches are right out. The CDC does still note that “gaps can be caused” when “a respirator is worn with facial hair.”

While the “disparity” between N95s and cloth masks “is widely known to the general public,” The New York Times says, “the update marks the first time the C.D.C. has explicitly addressed the differences.” Two years into the pandemic, the Times is saying, the preeminent U.S. disease control agency—the authority on which Americans are supposed to rely for timely, scientifically informed advice about how to protect themselves and their neighbors from COVID-19—is finally acknowledging an important fact that “the general public” already knew. The implication is that Americans are better off disregarding what the CDC says and seeking alternative sources of information.

That information has long been available. A laboratory study published in September 2020, for example, found that a valveless N95 mask was 99.9 percent effective at retaining droplets larger than half a micron generated by speech. While three-layer surgical masks and several kinds of cloth masks reduced the number of droplets detected by 80 percent or more, some designs—including a a “knitted mask” and a “two-layer cotton, pleated style mask” as well as a bandana—were substantially less effective.

A laboratory study published in October 2020 compared the effectiveness of different masks in several conditions involving two mannequin heads separated by 50 centimeters, one of which emitted “a mist of virus suspension through its mouth.” When the “receiver” was fitted with a mask, “a cotton mask led to an approximately 20% to 40% reduction in virus uptake compared to no mask.” The N95 mask “had the highest protective efficacy (approximately 80% to 90% reduction) of the various masks examined.” When the “spreader” had a mask, “cotton and surgical masks blocked more than 50% of the virus transmission,” while the rate for the N95 mask was 95 percent. When the edges of the N95 mask were “sealed with adhesive tape” to simulate a good fit, no virus was detected.

Similarly, a laboratory study published in December 2020 found that an N95 respirator blocked 99 percent of a simulated “cough aerosol.” By comparison, a “medical grade procedure mask” blocked 59 percent and a “3-ply cotton cloth face mask” blocked 51 percent.

In the real world, of course, masks may not be clean, well-fitted, or properly worn, which is one reason to be cautious about estimating the actual impact of general mask wearing based on studies like these. The CDC has long emphasized the importance of a good fit, and it is clearly concerned that more effective masks will prove to be less comfortable, meaning they are less likely to be worn correctly and consistently. It recommends that “you wear the most protective mask you can, that fits well and that you will wear consistently.”

Still, it is hard to understand why the CDC, once it decided that masks were a good idea after all, did not clearly and forthrightly lay out the pros and cons of different designs. It seems to be moving in that direction now because of the omicron wave, which prompted CNN medical analyst Leana Wen to declare that “cloth masks are little more than facial decorations,” adding, “There’s no place for them in light of omicron.” But omicron was identified two months ago, and the latest data indicate that the current surge already has peaked in the United States, with newly reported cases beginning a sharp decline similar to what other countries have seen.

One of the CDC’s main functions is to provide the public with accurate, up-to-date information about communicable diseases, based on its own examination of the scientific literature. Theoretically, anyone can delve into journals like Science Advances, Aerosol Science and Technology, and mSphere for the answers that the CDC fails to provide. But since most people are not inclined to do that, it would be helpful to have an authoritative source that reliably summarizes the relevant evidence in a timely fashion. In this case and others, the CDC is effectively telling people to look elsewhere.

The post The CDC Is Finally Acknowledging That N95 Respirators Work Better Than Cloth Masks appeared first on Reason.com.

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Later today, the White House is expected to officially announce plans to send roughly 400 million high-quality, N95 masks to pharmacies and health centers around the country. From there, the masks will be distributed for free to anyone who wants one.

The Associated Press reports that the move is meant to encourage Americans to replace cloth masks with alternatives that better defend against the Omicron variant of COVID-19. In places where mask-wearing is mandated by government policy, at least some people will surely be happy to swap out their current masks for the free N95s.

If the “free masks” plan tracks earlier plans for distributing “free” vaccines and “free” testing, then we know how this will go. Some pharmacies will run out immediately while others will still have some in stock when the next pandemic arrives.

But the timing feels all wrong. As The New York Times’ David Leonhardt reported today, omicron is in retreat. Wouldn’t it have made more sense for the White House to order the distribution of these masks months ago, when omicron first arrived on U.S. soil and federal officials started pushing Americans to wear N95 masks instead of basic cloth face coverings?

That, in turn, raises some serious questions about the national mask stockpile itself, which media reports say currently contains 750 million masks. If this is how they’re going to be distributed, essentially to whoever wants one, rather than on the basis of need, what is the point of having a stockpile for emergencies? Markets are perfectly capable of handling the distribution of N95 masks.

For that matter, why is the government sitting on a stash of 750 million masks after two years where mask shortages have been a recurring problem? Keep in mind, every mask that went into the federal stockpile—that is, every mask that will now be made available “for free” via the White House’s new program—is a mask that could have already been in use weeks or even months ago.

In fairness, it doesn’t seem like the stockpile was that large in March 2020—Politico reports that federal officials have “have worked to replenish” the stockpile “since the earliest days of the Covid-19 outbreak.” But it’s worth asking whether replenishing that stockpile was really the best use of federal resources in the middle of an ongoing pandemic. For months, Biden and his top public health officials have been urging Americans to wear N95 (or the similar KN95) masks as a defense against the omicron variant, while apparently also removing millions of masks from the marketplace in order to replenish a federal stockpile—as if having a few hundred million masks in storage for a future pandemic is more important than using them to fight the current one.

America produced an estimated 1 billion high-quality masks last year, so we’re no longer experiencing the dire shortages that marked the first year of the pandemic. Even so, masks haven’t been as readily available as they could be. It was widely reported last year that some Americans were turning to counterfeit N95s because of the difficulties in purchasing the genuine article.

Just last week, Politico notes, Biden talked about how obtaining high-quality masks is still “not always affordable or convenient” for some individuals. Shouldn’t his administration have to answer for contributing to that problem? Why was the federal government stockpiling masks at a time when those same masks were very much in demand?

All this accomplished was time-shifting the availability of masks. Because that’s what a stockpile is meant to do: shift the availability of resources from a time when demand is low and supply is high to a time when there is a crunch in supplies.

It’s certainly questionable whether this time shift was a productive one. The White House is making hundreds of millions of masks available now, after the omicron wave seems to have crested and started to recede in many parts of the country. If the distribution of masks from the federal stockpile takes as long as the White House’s planned distribution of free COVID tests, they likely won’t arrive in pharmacies and health clinics until early February.

So the operative question is: Are Americans better served by getting free masks in February than they would have been to have a higher number of N95 masks available for purchase in October, November, and December of this year? That equation does not seem to break in the Biden administration’s favor.

The post The Government Hoarded 750 Million N95 Masks While Telling You To Wear One appeared first on Reason.com.

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From the Foundation for Individual Rights in Education:

She’d heard rumors that the guy at the party had a history of problematic behavior toward women. So Syracuse University freshman Samantha Jones went right up to him and asked: Was he a registered sex offender?

Now, Syracuse is enforcing its ban on causing “mental harm” to punish the 18-year-old biology student for her question….

He reported the incident to campus police, who referred the matter to Syracuse’s Office of Community Standards. Last month, the University Conduct Board found Jones responsible for violating a ban on “[c]onduct, whether physical, electronic, oral, written or video, which threatens the mental health, physical health, or safety of anyone.” Jones has since been placed on disciplinary probation and is required to attend “Decision-Making” and “Conflict Coaching” workshops.

“Accusing someone of something that has no validity, especially being on a sex offender list can harm one’s mental health and safety,” wrote Syracuse administrator Sheriah Dixon in a December memo detailing Jones’ formal punishment. The problem with this assessment? Jones didn’t accuse the man of anything. The Conduct Board’s own findings conclude plainly that all Jones did was seek clarification about rumors.

Here’s the key excerpt from those findings:

For FIRE’s letter to Syracuse, see here. My view is that the law and university policy could generally prohibit continuing to talk directly to a person once the person tells you to stop, whatever the topic of the speech might be; we see that reflected in some telephone harassment statutes and similar rules (see Part I.A of this article for more).

But Syracuse’s ban on “conduct, whether physical, electronic, oral, written or video, which threatens the mental health … of anyone” is not such a policy. It doesn’t limit itself to speech to a person (it could easily cover speech about a person). It doesn’t indicate that it imposes this sort of “stop talking to me” rule. And is more generally vague and overbroad.

Syracuse is a private university, and thus not bound by First Amendment rules (though it is bound by a New York law that bars “arbitrary and capricious” private university decisions). But given Syracuse’s “commit[ment] to … freedom of expression,” I think it’s rightly faulted for having such a vague and broad rule, and for applying it the way it has here.

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In August 2020, I wrote a provocative op-ed, titled “A Supreme Court Divided Cannot Stand. John Roberts Must Step up or Step Off.” At the time, the Supreme Court had more leaks than the Titanic, and I felt decisive action was needed to right the ship. What was the first step? Roberts must speak out.

First, the chief justice must immediately issue a public statement, on his own behalf, about the leaks. He should declare these leaks unacceptable, and announce that he is investigating the breaches of confidentiality. He cannot simply deny reality. The Court needs an emergency tourniquet to stop the bleeding.

I’m pleased to report that Chief Justice Roberts has followed my advice–or something like that.

In response to #Maskgate, we have received an unprecedented response from the Court.

First, Justices Sotomayor and Gorsuch released a joint statement:

Just in: Statement by Justice Sotomayor and Justice Gorsuch: Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us.  It is false.  While we may sometimes disagree about the law, we are warm colleagues and friends.

Just in: Statement by Justice Sotomayor and Justice Gorsuch:
 
Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us.  It is false.  While we may sometimes disagree about the law, we are warm colleagues and friends.

— Robert Barnes (@scotusreporter) January 19, 2022

But this statement did not address the controversy. The leaked reports said Sotomayor asked Roberts to talk to Gorsuch, or something like that. The #Maskgate conspiracy grows!

Second, Chief Justice Roberts issued a statement!

“I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.”

MORE JUST IN on Maskgate, this time from the Chief Justice: “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.”

— Robert Barnes (@scotusreporter) January 19, 2022

Good for Roberts, Sotomayor, and Gorsuch. Leading members of the Supreme Court press corps relied on inaccurate sourcing, and they got burned. I am grateful the Court is fighting back against leaks and disinformation. The Chief does not need to resign, for now at least.

But–there is always a but–putting out a statement now creates a precedent. What happens if there there are future leaks, and the Court does not reply? Do we then presume the leaks were accurate, or that the Justices could not agree on a response?

Now, can we please let #Maskgate die? This controversy is so, so stupid.

The post Chief Justice Roberts, and Justice Sotomayor and Gorsuch Release Statements About #Maskgate appeared first on Reason.com.

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From Jackson v. Wright, decided yesterday by Judge Amos Mazzant (E.D. Tex.):

This case stems from the suppression of academic scholarship at the University of North Texas …. UNT is a public institution that hales itself as an academy through which students and faculty may, among other things, “publish … and/or display their scholarship freely as appropriate to their respective UNT-assigned roles and responsibilities.”

But as the Plaintiff in this matter is now aware, pressures from offended constituents can overshadow promises of academic freedom.

Plaintiff Dr. Timothy Jackson is a professor and scholar of music theory at UNT. He has dedicated much of his 40-year career to studying Heinrich Schenker …, an Austrian Jew who developed a system of music theory that became influential in the United States after World War II. Prior to this lawsuit, UNT was home to, and Plaintiff directed, the Center for Schenkerian Studies. Plaintiff was also a founding member of the Journal of Schenkerian Studies …, which was formerly published by the UNT Press.

 

Plaintiff’s area of expertise became a topic of controversy in November 2019 at a convention of the Society for Music Theory. Philip Ewell, a Black professor at Hunter College of the City University of New York, delivered for the Society a plenary address titled “Music Theory’s White Racial Frame.” During this talk, Professor Ewell critiqued the discipline of music theory for its “deep-seated whiteness” and described Schenker as “an ardent racist and German nationalist.” In a paper later published on this talk, Professor Ewell argued that “Schenkerian theory is an institutionalized racial structure … that exists to benefit members of the dominant white race of music theory.”

As a lead editor of the Journal (of which Schenker is the namesake), Plaintiff—with the help of his colleagues and his assistant editor, Levi Walls—organized a symposium and invited music scholars to submit papers in response to Professor Ewell’s talk and publication.

The Journal sent a call for papers to members of the Society for Music Theory, including Professor Ewell. Walls assisted with the symposium in nearly every aspect, from its inception to its publication. Notably, the idea for the symposium originated in an email chain between Plaintiff and Walls.

The symposium contributions reflected a range of views on Professor Ewell’s arguments and were published in the Journal in July 2020. Plaintiff contributed one of the pieces, which accuses Professor Ewell of quoting Schenker without context, failing to discuss the evolution of Schenker’s views on race during his lifetime, and refusing to acknowledge that Schenker was a victim of anti-Semitism.

Plaintiff also suggested Professor Ewell’s criticisms of Schenker might themselves have constituted anti-Semitism. In support of this contention, Plaintiff cited studies purportedly classifying Black people as more likely to hold anti-Semitic views than whites. Plaintiff closed his article by asserting that the paucity of African American involvement in music theory discipline results from “few grow[ing] up in homes where classical music is profoundly valued, and therefore … lack[ing] the necessary background.”

The backlash was swift. Professors across the country circulated emails and “led [a] social media charge” condemning the symposium. The Executive Board of the Society for Music Theory issued a letter, stating, among other things, “[t]he conception and execution of [the] symposium failed to meet the ethical, professional, and scholarly standards of our discipline.” Further, a number of UNT graduate students circulated a statement (the “Student Statement”) denouncing the Journal’s “platforming of racist sentiments” and calling for potential removal of Plaintiff from the Journal for his “actions … both past and present” that were “particularly racist and unacceptable.” One defendant in this case published the Student Statement on her Twitter feed.

In response, a majority of Plaintiff’s colleagues in UNT’s Division of Music History, Theory, and Ethnomusicology signed a letter endorsing the Student Statement and included a link for viewers to access it. In addition, John Richmond, Dean of the College of Music at UNT, announced the College of Music’s launch of a “formal investigation into the conception and production of the twelfth volume of the Journal.” UNT officials formed an ad hoc panel (the “Panel”) to carry out this investigation.

When the backlash began, Walls himself was “confused about what exactly people want” because they “seem[ed] to be speculating about the [J]ournal without actually reading it.” He further expressed that “the [J]ournal printed every response” it received, and the editors “emphasized in the [call for papers] that [they] wanted a wide range of views.”

Despite what Plaintiff and (initially) Walls believed about the Journal’s publication process, the Panel issued a report (the “Report”) in which it found the Journal did not observe “the standards of best practice in scholarly publication” in producing Volume 12 and, accordingly, made recommendations the Journal was expected to implement. Provost Jennifer Cowley then sent Plaintiff a letter instructing him “to develop a plan to address the recommendations … and submit the plan to Chair Benjamin Brand and Dean John Richmond for review and approval” by a particular date. A portion of the recommendations included: “1. Changing the editorial structure” of the Journal; “2. Making clear and transparent all editorial and review processes[; and] 3. Defining clearly the relationships between the [J]ournal editorial team and the editorial board.” Notably, Provost Cowley did not send the letter to any other faculty members associated with the Journal.

Prior to the plan submission deadline, Dr. Brand, Chair of Plaintiff’s department, “informed [Plaintiff] that he would be removed from the Journal and that the university would eliminate resources previously provided to the Journal and Center for Schenkerian Studies.” Dr. Brand stated he “c[ould] not support a plan according to which [Plaintiff] would remain involved in the day-to-day operations of the [J]ournal, and its editorial process in particular, given the panel’s findings of editorial mismanagement.”

A week later, Plaintiff submitted his response … to Dr. Brand and Dean Richmond, addressing the Panel’s findings, proposing a plan, and defending his actions and reputation. Plaintiff “plan[ned] to remain on the editorial board of the [Journal], albeit in a role that [would] ward[] off accusations recently leveled at the [Journal] of alleged ‘power imbalance.'” Plaintiff expressed that, “to protect academic freedom and also prevent pretextual abrogation of that right,” it had become “absolutely necessary that the editor-in-chief be a full time, tenured faculty member whether at UNT or at an outside institution.” Plaintiff concluded his Response by indicating he would not be forced to resign from the Journal’s editorial board but “look[ed] forward to a positive outcome of [the] ad hoc process by implementing the points recommended by the Panel.”

Since then, the Journal has been “on ice.” No editorial board currently exists, and no one has applied for the position of editor-in-chief. Because of this indefinite suspension, Plaintiff has been de facto removed from the Journal….

The court allowed Schenker’s First Amendment claim against the University to go forward:

Supreme Court precedent in the realm of academia could not be clearer:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

Sweezy v. New Hampshire (1957) (emphasis added); see also, e.g., Keyishian v. Bd. of Regents (1967) (“The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.”).

Plaintiff asserts a claim against the Board Defendants for “adverse action” in violation of Plaintiff’s First Amendment rights. He alleges that UNT took specific actions in retaliation for Plaintiff’s critical article and publication of the entire symposium in the Journal. Defendants contend that Plaintiff has not and cannot allege facts sufficient “to plead an adverse employment action that supports a claim for a violation of the First Amendment.” …

[U]nder the test for customary First Amendment workplace retaliation, Plaintiff must allege facts that plausibly show: “(1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.” Defendants only contest the first element. Specifically, Defendants argue that Plaintiff has not alleged facts that show an adverse employment action. The Fifth Circuit defines adverse employment as “discharges, demotions, refusals to hire, refusals to promote, [] reprimands, and in some instances, transfers.”

Plaintiff alleges he was de facto removed from the Journal in retaliation for the symposium’s criticisms of Professor Ewell. This is a plausible assertion that states a legal claim. UNT, responding to backlash from its displeased students and faculty, took immediate action. It created the Panel to investigate the Journal and its editorial practices and later issued recommendations regarding the Journal that Plaintiff was expected to implement. Dr. Brand then threatened Plaintiff with removal from the Journal.

Plaintiff alleges these actions have left him banished from the Journal he founded. Plaintiff also alleges UNT removed him from the Journal for his speech. The Court at the 12(b)(6) stage views the alleged facts in the light most favorable to Plaintiff, and, accordingly, can reasonably infer that Plaintiff was disciplined as a result of the controversial remarks published in Volume 12 of the Journal.

The test is slightly different for claims of suppression of speech in violation of the First Amendment in the university context. In Buchanan, the Fifth Circuit held that for public university professors:

[t]o establish a § 1983 claim for violation of the First Amendment right to free speech, they must show that (1) they were disciplined or fired for speech that is a matter of public concern, and (2) their interest in the speech outweighed the university’s interest in regulating the speech. The first question, asking whether the professor’s speech is protected as a matter of public concern, is a question of law.

Part one of the test comprises two distinct elements—that is, whether the speech constitutes a matter of public concern and whether “the protected expression was a substantial or motivating factor” in the discipline or termination. Defendants do not dispute that this case involves speech that is a matter of public concern. “Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.” Plaintiff alleges he took part in publishing a symposium that, given the response, clearly interests the music theory community and other academics. With respect to the second element, Plaintiff alleges he was de facto removed from the Journal in retaliation for the symposium’s criticisms of Professor Ewell. As reasoned previously, this is a plausible assertion.

The second component of the First Amendment free speech test is known as the Pickering-Connick balancing test: “[i]f Plaintiff’s interests in the prohibited speech outweigh the [university’s] interests, then Plaintiff’s First Amendment rights have been violated.” Plaintiff’s Complaint alleges a sincere interest in defending Schenker, “the namesake of the Center for Schenkerian Studies that Professor Jackson directs” at UNT, and publishing material in the Journal of which he is a founding member. Accordingly, this Court finds it plausible that Plaintiff’s interest in his speech outweighs Defendants’ interests in regulating it….

The Court also allowed Jackson’s defamation case against the signatories of the Student Statement to go forward, though just with a very brief discussion:

Accepting as true all well-pleaded facts in Plaintiff’s Complaint, and viewing them in the light most favorable to Plaintiff, the Court finds that Plaintiff’s defamation claims plausibly suggest an entitlement to relief. Absent a claim which is obviously insufficient, a court should not grant a Rule 12(b)(6) motion to dismiss, thereby denying Plaintiff an opportunity to develop facts to support his Complaint. Issues pertaining to Plaintiff’s defamation claims are better resolved at the summary judgment stage.

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As Joe Biden’s presidency enters its second year, there is little question that he is flailing, even failing, with a stalled agenda in Congress, plummeting approval ratings, collapsing support for Democrats, and a general sense of malaise about the pandemic, the economy, and the country’s overall direction permeating the national mood. To understand both why it’s happening and why it’s likely to be difficult for Biden to change course, it’s worth looking back at Biden’s presidential campaign. 

When Biden ran, there were two parallel stories that you could tell about his approach and his aims: The first was that he was a moderate, that he was a conventional center-left president who wasn’t too online or too progressive. Rather, he was a candidate with a long record in the Senate and established relationships in Washington who wanted to turn down the temperature of national politics relative to the Donald Trump years and work across the aisle in order to bring a pandemic-wracked country back to normal. 

This was the story Biden that told about himself, and it was probably the story that Biden told to himself as well, since he seemed to genuinely believe that he represented an antidote to the party’s leftward march. As he said in a debate against Trump, responding to criticisms that he was essentially a puppet of his party’s socialist-curious progressive faction, “I am the Democratic Party.” With Joe Biden at the helm, his declaration seemed intended to say, how far left could the party really be? And thus this was the story that many voters—especially the ones who only tuned in for a snippet of a speech or part of a primary debate or a few minutes of nightly news coverage—heard. 

But there was another story you could tell too, and that was of the Biden campaign operation, and the raft of left-leaning polices it carried along with it. Biden’s various plans for health care, climate, education, and so forth didn’t lean as far to the left as the plans from Sen. Bernie Sanders (I–Vt.), but by multiple accounts they represented the most progressive agenda in history, with trillions in new spending aimed at boosting government’s role in nearly every aspect of daily life and the economy. 

These twin identities worked for Biden on the campaign trail because they allowed him to appeal, on the one hand, to less partisan, less politically engaged voters tired of the White House melodrama and virus-born economic and social upheaval of the Trump years, and on the other hand to committed Democratic partisans who had increasingly moved to the left, and who believed that the post-Trump era demanded radical change. Thus Biden won by appealing both to the enraged left and the exhausted center, the committed partisans and the people who just wanted a president they could safely ignore. 

But once in office, those twin identities created a disconnect. Biden had campaigned on what amounted to an implicit promise to be both a warrior for progressive change and an affable moderate who simply returned things to the way they were, whatever that was supposed to be. There was effectively no way to fulfill both promises and make both groups happy. 

And, to make matters worse, Biden’s presidency descended into intra-party battles over longstanding activist priorities that had little or nothing to do with the COVID-19 pandemic or the very real economic travails—particularly inflation—the American economy was facing, problems that voters understood Biden’s own policies to be exacerbating. 

It’s not too hard to understand why this happened; political parties are powerful organizing forces, and it’s all too easy for them to exert more influence on a president’s day-to-day priorities than more loosely attached normie voters who don’t view politics as a hobby or a passion. The various activist groups, congressional staffers, party organizers, and political appointees simply have a louder voice than those who choose to mostly spend their time and mental energy on the world outside of politics.

That’s especially true when the person at the top is someone like Biden—a “rusty weathervane,” in Matt Welch’s memorable coinage, who has always been at the forefront of the Democratic Party’s priorities. From court appointments to tough-on-crime laws to tracking stimulus spending, Biden has always served as a point-person, a figurehead for the Democratic Party’s agenda-item-of-the-moment, but he’s rarely acted as an independent leader who sets that agenda himself. 

So while it’s true enough that Biden is, in some sense, the Democratic Party, the reverse is also true: The Democratic Party is Joe Biden, and that it’s the Democratic Party—with all of its internal conflicts and obsessions and activist-driven agenda items—that is acting through the White House right now. 

To some degree, of course, that’s true in every modern administration, since the president serves as the de facto head of a political party. But the effect is more powerful with a lifelong figurehead politician like Biden, whose job is less to lead the party than to contain and manage its competing factions. 

This explains the Biden administration’s unwillingness, so far, to meaningfully prioritize among the component parts of his spending bill, preferring to give a little bit to each of the party’s issue activists. It helps explain his quixotic support for both a doomed voting rights bill and divisive Senate procedural reforms that won’t take effect. And it also helps explain why under Biden, Democrats have consistently acted as if they have a commanding majority, and a mandate for radical change, despite their incredibly slim, almost-didn’t-happen holds on the House and the Senate, and why Democratic defections from the party line have sometimes been treated as acts of defiance against a majority, as if Republicans simply didn’t exist. Biden views himself as a moderate, period, but he is better understood as a moderate within the Democratic Party, and his lifelong inability to distinguish between the party and the country means that he is mostly focused on trying to unite the party—but not the country as a whole. 

And this, in turn, sheds light on why Biden has so far been unable to serve the voters who went for him in 2020 because they wanted a return to normalcy and all that entailed—primarily a tolerable economy and a pandemic that no longer disrupted everyday life, but also less apocalypticism in Washington and less political rancor.

Those less partisan, less engaged voters—the kind who supported Biden mostly because he wasn’t Trump—are the sort of voters who, by and large, determine the success or failure of a presidency. And for them, Biden the president is failing to deliver on the promises of Biden the candidate. Ironically, Biden is also failing to deliver the sort of big-ticket policy change demanded by the progressive base. On its current trajectory, it won’t be long before Biden’s presidency moves from “is failing” to “has failed.” 

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Brookside, Alabama, has a population of less than 1,500 people. For most of the past decade it saw little crime—only 55 major crimes in eight years, none homicide or rape.

But in the past couple of years, the tiny town has generated an outsized police force, and today the Birmingham News reports why. The mayor and police force there are looking to fine anybody they can to bring in revenue.

Birmingham News columnist John Archibald reports, “In a two-year period between 2018 and 2020 Brookside revenues from fines and forfeitures soared more than 640 percent and now make up half the city’s total income.” According to the records Archibald reviewed, Brookside as of 2020 was arresting more people for misdemeanors than it has residents. The police there fine so many people that they have to direct traffic around town hall for the monthly municipal court because there are so many people there trying to contest the charges against them.

Revenue into the town jumped from $431,637 in 2016 to $1,233,469 in 2020. That jump wasn’t from tax receipts. The only commercial taxes generated in Brookside are from a single Dollar General store. The town raked in $610,000 in fines and forfeitures (from seizures of cars in traffic stops). Not only is half its budget coming from fining travelers, the amount the police are bringing in is more than its entire revenue stream just five years ago.

If the idea that a former mining town a few miles north of Birmingham is a hotbed of speeders and reckless drivers seems more than a bit suspect, a read through the cases Archibald describes shows exactly what you might expect. The police there are looking for any reason they can find to pull people over and cite them:

Brookside officers have been accused in lawsuits of fabricating charges, using racist language and “making up laws” to stack counts on passersby. Defendants must pay thousands in fines and fees—or pay for costly appeals to state court—and poorer residents or passersby fall into patterns of debt they cannot easily escape.

Archibald reports the terrible tale of Rev. Vincent Witt, who was pulled over at a stop sign in Brookside by a cop because he had a paper tag. Witt’s car was a new purchase, and the tag was legitimate. Witt says he asked if Brookside pulled everybody over like this and says the police officer called him a racial slur and told him to stay out of the town.

Witt called the police department to file a complaint and was told he would have to do so in person. Then things turned bizarre. Witt and his sister (who was not even in the car with him) were subsequently charged with impersonating police officers. Brookside put their pictures up on their Facebook page, and web site Crime Stoppers featured their photos as suspects. The case was eventually dropped after damaging the Witts’ reputation.

Witt and his sister have sued in federal court for malicious prosecution. Brookside has claimed that the officers involved are entitled to qualified immunity from the lawsuit. As perhaps an indicator of how big the problem is in Brookside, District Court Judge Abdul Kallon for the United States District Court for the Northern District of Alabama only allowed immunity for the stop itself.  He ruled that the “bizarre” police behavior afterward was not protected. “Given the alleged and, truthfully, bizarre conduct—issuing and approving fabricated charges against Pastor Witt and Ms. Witt for impersonating police officers, without probable cause, and publicizing the charges on Facebook and Crime Stoppers in retaliation for Pastor Witt’s complaint—the court is unconvinced that [the officers] are entitled to qualified immunity.”

Alabama police have significant incentives to engage in forfeiture. In the latest state-by-state analysis of civil asset forfeiture by the Institute for Justice, Alabama gets a D- grade for its forfeiture laws. The state doesn’t track or report forfeiture spending; the threshold for police to claim the property by saying it’s connected to a crime is much lower than the threshold to actually convict somebody of a crime; and they get to keep 100 percent of what they seize. People who are caught up in forfeiture attempts are forced to prove they aren’t criminals in order to get the property back, turning the concept of presumed innocence on its head.

Brookside is certainly a case study in the lack of accountability for police funding and spending. The police chief and mayor told Archibald they don’t even know how the money from the fines has been spent. The town doesn’t even have a formal budgeting process. But as the fines rolled in, funding for police skyrocketed 560 percent. The fines were being used to pay for police officers, who then needed to keep finding people to fine to keep getting paid.

If anything Witt was lucky they didn’t try to seize his new car.

We’ll end with this incredible and telling quote from Brookside’s police chief, Mike Jones, who really does not see a problem here at all and thinks funding his town with fines is a “positive story.”

“I see a 600% increase—that’s a failure,” Jones told Archibald. “If you had more officers and more productivity you’d have more. I think it could be more.”

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