Tag: in-the-news

In May, Republican Florida Gov. Ron DeSantis signed a bill establishing a “Victims of Communism Day” in his state “to honor the hundreds of millions of people who have suffered under communist regimes across the world.”

“While it’s fashionable in some circles to whitewash the history of communism,” DeSantis said in a statement, “Florida will stand for truth and remain as a beachhead for freedom.”

One would assume that promise would extend to migrants fleeing economic ruin and humanitarian turmoil in Venezuela, a country that DeSantis has decried for its “communist regime.” But with DeSantis’ decision this week to fly around 50 Venezuelan migrants to Martha’s Vineyard, the governor’s commitment to supporting the victims of crushing left-wing regimes is questionable.

Flights carrying migrants reached the small Massachusetts island of Martha’s Vineyard on Wednesday. Before taking off from San Antonio, Texas, the migrants were reportedly told they would be transported not to Martha’s Vineyard but to Boston, where they could receive expedited work papers. DeSantis paid for the flights through a devoted state fund totaling $12 million, set aside by the Florida Legislature this year to transport migrants to so-called sanctuary states.

The more details emerge about the Martha’s Vineyard stunt, the clearer it becomes that DeSantis has chosen to view migrants as a punishment to be inflicted on blue states. Florida officials “very intentionally chose not to call ahead to any single office authority on Martha’s Vineyard so that even the most basic human needs arrangements could be made,” Rachel Self, an immigration attorney, shared with reporters on Martha’s Vineyard. “Ensuring that no help awaited the migrants at all was the entire point.”

Andres Duarte, a 30-year-old Venezuelan interviewed by NPR, said that he and other migrants “got on the plane with a vision of the future, of making it.” Though the woman who convinced him to board the flight provided few details about the journey, Duarte was hopeful. “When you have no money and someone offers help, well, it means a lot.”

Rather than welcoming the people fleeing one of the world’s most repressive and punishing regimes, DeSantis chose to weaponize them. This group included at least four kids younger than 9. It included people seeking refuge after escaping the regime of Nicolás Maduro, who DeSantis says “is responsible for countless atrocities and has driven Venezuela into the ground.” And it was crafted to create a media splash—help wasn’t waiting for the Venezuelans when they landed, but a videographer reportedly was.

All this from the governor who signed legislation requiring all public school teachers to devote at least 45 minutes of instruction on Victims of Communism Day to teach students about the suffering inflicted by communist regimes; who renamed a Tampa road after a survivor of communism in Cuba; who urged the Biden administration to provide Cubans with internet to access free information in defiance of the communist regime; who awarded a Cuban anti-communist dissident the Governor’s Medal of Freedom. All this from the governor who groups Venezuela with the evil and corrupt communist regimes of the world.

As recently as last year, DeSantis spoke favorably of the people who flee those regimes to find refuge in the United States. “Why would somebody flee across shark infested waters, say leaving from Cuba, to come to southern Florida?” DeSantis said back then. “Why would people leave [communist] countries and risk their life to be able to come here? It’s important that students understand that.”

Many questions remain unanswered: whether the migrants will stay in Massachusetts, whether DeSantis’ move violated any state or federal laws, and the precise details of how migrants were compelled to board those flights. But it’s clear that these are people who could build better lives here and contribute to American communities if given the chance. Instead, DeSantis, at taxpayer expense, used these Venezuelan asylum seekers—who weren’t even in Florida in the first place—to carry out a political stunt, weaponizing victims of a regime he’s vigorously denounced.

The post If Ron DeSantis Hates Communism, He Shouldn't Weaponize Victims of Communism appeared first on Reason.com.

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Just released, Netchoice v. Paxton; I’m traveling and likely won’t have time to digest the 113 pages of opinions for a while, but here’s the opening from Judge Andrew Oldham’s opinion, which is a majority on most points:

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

Judge Edith Jones joined this in large part; an excerpt:

Functioning as conduits for both makers and recipients of speech, the platforms’ businesses are closer analytically to the holdings of the Supreme Court in PruneYard and FAIR than to Miami Herald, Pacific Gas & Electric, and Hurley. It follows from the first two cases that in arbitrarily excluding from their platforms the makers of speech and preventing disfavored speech from reaching potential audiences (“censoring,” in the comprehensive statutory term), they are not themselves “speaking” for First Amendment purposes….

Another way to look at this case, however, is through the Turner I decision, in which the Supreme Court held that cable TV companies are to some extent engaged in First Amendment-covered “speech” when, as they “operate” their systems, they determine which cable channels to host. Using intermediate scrutiny, the Court did not reject federal must-carry regulations requiring hosting of certain preferred channels. Instead, the Court distinguished both Pacific Gas & Electric and Miami Herald for three reasons. First, the must-carry regulations were content neutral. Second, they did not force cable operators to modify their own speech, nor were viewers likely to associate the mandatory hosted speech with that of the operators. And third, a cable operator’s selection of channels controlled the flow of information into subscribers’ households, and could “thus silence the voice of competing speakers with the mere flick of a switch.” I find all of these points compellingly applicable to analyzing the regulations imposed on large social media platforms by the Texas statute before us.

Judge Leslie Southwick largely dissented; again, a short excerpt:

Yes, almost none of what others place on the Platforms is subject to any action by the companies that own them. The First Amendment, though, is what protects the curating, moderating, or whatever else we call the Platforms’ interaction with what others are trying to say. We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly. The majority appears assured of their approach; I am hesitant. The closest match I see is caselaw establishing the right of newspapers to control what they do and do not print, and that is the law that guides me until the Supreme Court gives us more….

When the Platforms curate their users’ feeds, which are the behaviors prohibited in Section 7 of HB 20, they are exercising their editorial discretion. That is a type of First Amendment-protected activity recognized in Miami Herald, PG&E, Turner, and Hurley…. [T]here may be more than one type of First Amendment activity occurring by the same speaker when, for instance, an article is selected and printed in a newspaper—or, in our context, a tweet posted or video listed…. First Amendment protections attend the publishing process as well as the actual published content.

For my thoughts on this general subject, see Treating Social Media Platforms Like Common Carriers?

The post Fifth Circuit Rejects First Amendment Challenge to Texas Social Media Common Carrier Law appeared first on Reason.com.

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As the United Kingdom mourns the death of Queen Elizabeth II, some anti-monarchist protesters and activists have found themselves facing scrutiny from British police over their public displays of dissent.

A Scottish man was arrested on Tuesday after he allegedly yelled at Prince Andrew as the duke of York accompanied the queen’s funeral procession through the streets of Edinburgh. “Andrew, you’re a sick old man,” a man can be heard shouting in a video obtained by The Independent, likely in reference to allegations against the duke of sexual misconduct with underage girls. That arrest comes just two days after a Scottish woman was detained after she displayed a sign that read ”fuck imperialism, abolish monarchy” at a ceremony proclaiming King Charles III as the monarch.

These police actions against anti-monarchists have not been limited to Scotland either. Peace activist Symon Hill claimed he was briefly detained, but later released by police, after shouting “Who elected him?” at a similar proclamation ceremony for the new king in England. Paul Powlesland, a British lawyer, said he held up a blank sheet of paper in London’s Parliament Square and was questioned by police, who reportedly told him not to write any anti-monarchist messages on the signs out of fear that “someone might be offended.”

U.K. law authorizes police action against protests and grants officers wide discretion to act in service of public order. Back in April, a new policing law took effect, allowing police officers in England and Wales to shut down protests if they deem them to be too “noisy” or “disruptive,” even if those protests are nonviolent. This law immediately prompted outrage from civil liberties groups in the U.K., as well as Parliament’s Joint Committee on Human Rights, which argued the law has created a “chilling effect” on speech in a recent report. It also comes after new legislation passed in the U.K. that some say has curtailed British citizens’ free speech and privacy rights in online forums and on social media under the guise of “internet safety.”

The enforcement of those laws has taken on an even higher profile as the death of Queen Elizabeth II reignites debates in the U.K. over the future of the monarchy and the country’s political system. Though the queen enjoyed consistently high popularity, King Charles III has not seen that same level of support from his new subjects. A poll taken ahead of the queen’s Platinum Jubilee in June found that just 42 percent of Britons had a favorable view of Charles. While the king has seen a bump in popularity in the aftermath of his mother’s death, some wonder how long it will last, especially amid several gaffes during the ascension process. Some Commonwealth countries, notably Jamaica, have already openly proposed removing the British monarch as their heads of state.

The juxtaposition of these law enforcement actions against protesters and the uncertainty amid the country’s monarchical transition has been jarring for many Britons, especially opponents of the monarchy. It goes without saying that arresting protesters for criticizing the unelected head of state flies in the face of free speech rights, especially since Britain’s constitutional structure allows for criticism of the crown.

Libertarians have also voiced concerns that the monarchy may no longer maintain the same neutrality and restraint as part of the political zeitgeist under Charles. With these arrests, the urgency behind those fears and worries has only increased, as some now see the enforcement of these laws as an unreasonable limitation of Britons’ free expression and an omen of the changing relationship between the crown and its subjects. 

“A period of quiet mourning for the Queen is fine,” Powlesland tweeted. “But using that period to cement Charles [sic] Accession as King & cracking down on any dissent to the accession as disrespectful is outrageous.”

 

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During a debate last month, Don Bolduc, a retired U.S. Army brigadier general who was seeking the Republican nomination to oppose Sen. Maggie Hassan (D–N.H.) in November, unambiguously asserted that Donald Trump won the 2020 presidential election. “I signed a letter with 120 other generals and admirals saying that Trump won the election, and, damn it, I stand by my letter,” Bolduc said, eliciting cheers and applause from the audience. “I’m not switching horses, baby. This is it.”

Yesterday, two days after Bolduc won the Republican Senate nomination, he suddenly renounced that reality-defying position. “I’ve done a lot of research on this,” he said on Fox News, “and I’ve spent the past couple weeks talking to Granite Staters all over the state from every party, and I have come to the conclusion—and I want to be definitive on this—the election was not stolen….Elections have consequences, and, unfortunately, President Biden is the legitimate president of this country.”

That startling reversal starkly illustrates the challenge that Republican candidates face in a party that has been organized around one man’s self-flattering delusions. They recognize that reinforcing those delusions gives them an edge among Republican primary voters, as reflected in the positive response to Bolduc’s fiery comments during that August 14 debate and in Tuesday’s election results. But they also understand that endorsing wacky conspiracy theories is apt to alienate moderates and independents in a general election. That prospect is especially worrying in a purple state like New Hampshire, where registered Republicans have only a slight edge over registered Democrats and two-fifths of voters are unaffiliated.

Bolduc’s solution is both audacious and risky. As recently as a month ago, more than a year and a half after the 2020 election, he claimed to be firmly convinced that systematic fraud had delivered a phony victory to Joe Biden. But since then, he says, a combination of “research” and conversations with New Hampshire voters has persuaded him that Biden actually won. The excuse he offered on Fox News was less than completely satisfying: “Live and learn, right?”

Any voter who does not share Bolduc’s devotion to Trump might reasonably wonder why the candidate did not bother to research this subject before publicly, repeatedly, and confidently insisting that the election had been stolen. In the 21 months that elapsed between the election and last month’s debate, there was plenty of time to weigh the evidence in favor of that politically explosive and socially divisive proposition. But even after the claim that Bolduc endorsed drove a violent mob of Trump supporters to attack the U.S. Capitol in a vain attempt to prevent Biden from taking office, Bolduc wants us to believe, he did not bother to investigate the empirical basis for that claim.

That explanation suggests Bolduc is reckless, feckless, dishonest, or all three. New Hampshire voters will have to decide whether those qualities recommend him as a member of the U.S. Senate. He is counting on them to overlook the implications of his excuse.

If that strategy works, the Senate Majority PAC will look pretty foolish for spending millions of dollars on ads aimed at boosting Bolduc and hurting his chief rival, New Hampshire Senate President Chuck Morse (R–Salem), who lost on Tuesday by a bit more than one percentage point. Morse, the establishment’s favorite, was endorsed by New Hampshire’s Republican governor, Chris Sununu, who described Bolduc as a “conspiracy-type candidate.” But as in Maryland, Pennsylvania, and Michigan, the Democrats figured the Trumpiest candidate would be the easiest to beat in the general election.

Bolduc deserved that distinction. But judging from the August 14 debate, his rivals were also terrified of alienating Trump supporters by challenging the stolen-election fantasy. Here is the question that prompted Bolduc to reiterate the conviction he has now repudiated: “Do you believe that we can conclusively determine who won the 2020 presidential election, and what role should the federal government play in getting to the bottom of it or handling our elections, if any?”

Two of Bolduc’s opponents for the Republican nomination, cryptocurrency entrepreneur Bruce Fenton and Londonderry Town Manager Kevin Smith, a former state legislator, also participated in the debate, which was sponsored by the Government Integrity Project, a conservative group based in Windham, New Hampshire. Fenton and Smith were less bold than Bolduc, trying to placate Trump’s followers without sounding crazy. But their professed agnosticism made it clear that they did not have the courage to say which universe they inhabit: the one where Biden legitimately won the election, notwithstanding whatever scattered fraud may have occurred, or the one where fraud—including the orchestrated, multistate manipulation of voting machines by an international cabal that faked hundreds of thousands or millions of votes—was so systematic that it denied Trump his rightful victory.

Once he won the nomination, Bolduc felt secure enough to renounce his residency in the latter universe. But before then, he proudly lived there. Fenton and Smith, by contrast, tried to straddle both worlds.

After a stammering start, Fenton averred that there were “massive, massive issues” with the election, to the extent that “we can’t tell what’s true.” Fenton then tried to shift attention to social media moderation policies, reinforced by government pressure, that suppress false claims about the presidential election, saying “they’ve censored it, just like a third-world dictatorship.”

Fenton called the question of who won the election “one of the most partisan issues there is,” noting that “people on the left” get “outright angry” at the claim that Trump did. He added that “everybody, on the right and the left, should agree that the elections are fair, and if they’re not, it’s a serious problem we absolutely must address.”

When pressed to say whether it is clear who won the 2020 election, Fenton replied, “No, because we don’t have the information. We can say that there was a lot of fraud. There was a lot of problems, for sure, absolutely.”

Smith attempted the same sort of balancing act. “It’s very unlikely that Joe Biden got 81 million votes,” he declared. “Unfortunately, we may never have a full accounting of exactly what happened, because, again, they’re not allowing the investigations to occur. We know there were irregularities right here in Windham…but we never got a full investigation into what’s going on here. We saw the same thing in Bedford as well.” If elected to the Senate, he promised, he would make sure that “we will have investigations into all of these irregularities, because election integrity is a pillar of our democratic republic.”

Morse did not participate in the Government Integrity Project’s debate. But during a September 8 debate sponsored by WMUR, the Hearst station in Manchester, he agreed with Trump that the FBI’s investigation of purloined government documents at Mar-a-Lago had been “politicized.” He added that “we need to investigate the management” of the FBI and the Justice Department.

Although Morse’s record is pretty conservative, he was frequently described as a “moderate” compared to Bolduc, mainly because his support for Trump was not fervent enough to make him embrace wild claims that were rejected by election experts, the courts, and a wide array of Republican officials, including Trump’s own attorney general. By that standard, Fenton and Smith are also moderates, since their cowardly kowtowing to Trump’s followers stopped short of declaring Biden an illegitimate president.

Bloomberg Opinion columnist Jonathan Bernstein suggests that Bolduc’s about-face presents Trump with a challenge. “While the former president’s grip on the Republican Party is partly based on how helpful he can be to candidates seeking nominations,” he writes, “the main reason Republicans fear him is the possibility that he could turn against them in November, either by asking voters to stay home or even [by] suggesting they vote for GOP candidates’ Democratic or third-party rivals.” If Trump never actually does that, Bernstein argues, Republican candidates will be less afraid of crossing him.

“Bolduc seems like a very good test case, given that Trump didn’t endorse him in the primary and that his reversal was so complete and total,” Bernstein writes. “If Trump supports him anyway, or even if he just ignores the whole episode, people in the party inclined to oppose him but hesitant about the political cost will be more likely to think of him as a paper tiger.”

That seems like wishful thinking to me. A large majority of Republican voters—75 percent or more, according to several polls—are still unwilling to concede that Biden legitimately won the 2020 election. As long as the selection of candidates depends on placating Trump supporters, Republicans will continue to obfuscate or deny a basic historical fact.

The post A Senate Candidate's Belated Acknowledgment of Biden's Victory Is a Reality Check for a Trump-Dominated GOP appeared first on Reason.com.

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The Senate will not be voting this month on whether to legislatively enshrine federal same-sex marriage recognition into law. Instead, supporters of the bill are pushing the vote until after the midterms, ostensibly in the hopes it will bring more Republicans on board.

Just about a week ago, Senate sponsors of the Respect for Marriage Act said they thought they’d be able to get the 10 Republican votes necessary on board if they made some amendments to the bill in the name of protecting religious freedom. But Thursday afternoon, sponsors of the bill announced they’re going to wait.

The Respect for Marriage Act passed the House in July, 267–157. The bill got 47 yes votes from Republicans. In the Senate, the bill needs 10 Republicans to support it to avoid a filibuster (assuming that all Democrats support it). Sen. Susan Collins (R–Maine) is one of the sponsors and had been working with Sens. Rob Portman (R–Ohio) and Thom Tillis (R–N.C.) to get those 10 votes by attempting to appeal to moderate Republicans like Mitt Romney (R–Utah).

But with the election so close, The Washington Post notes, some Republicans may be worried about voter responses. It’s not likely to cause conservatives to switch votes to Democrats, but it could possibly cause some not to turn out at all. Portman, who is retiring after this year, said it will take “a lot of political sting out of it” if the vote happens in the post-midterm lame duck election.

The Respect for Marriage Act is intended to serve as a backstop protecting same-sex marriage should the Supreme Court decide to revisit and reverse Obergefell v. Hodges, the 2015 ruling that obligated the federal government and all states to legally recognize these relationships. The Respect for Marriage Act would require the federal government to recognize same-sex marriages in states where it was permitted. And while it doesn’t require any individual states to permit and license same-sex marriages within its own borders, it does require states to recognize marriages legally performed in other states.

There is absolutely no chance that the Supreme Court will reverse Obergefell in the next year, if ever, but it’s nevertheless preferable for a democratic republic like the United States to put this policy into place via a law voted on by Congress and signed by the president rather than leaving it up to the judiciary. The recent reversal of Roe v. Wade (1973) has revived interest in “court proofing” legal recognition.

While the decision to delay the vote is obviously political, this is a situation where politicians are actually trying to get the law passed rather than win elections. For that reason alone, the delay should be appreciated. Particularly on LGBT issues, there is a number of examples where laws are deliberately crafted not to be passed but to serve as wedge issues to divide voters.

The Equality Act, for example, is often sold as a bill that would enshrine federal anti-discrimination protections for LGBT people. But the bill is extremely broad, dramatically increasing what counts as a public accommodation under federal law and specifically forbidding people from using religious freedom against accusations of discrimination. It is seemingly designed to push Republicans away (which is exactly what happened last year) when a more compromising bill could get passed. But then Democrats and Republicans wouldn’t be able to campaign on these culture war differences.

The decision to delay a vote here actually puts the success of a bill that matters to LGBT people ahead of political affiliation. Anybody disappointed that this bill will not be used as a campaign point should perhaps take a step back and stop trying to yank LGBT citizens around.

The post No Senate Vote on Gay Marriage Until After Midterms appeared first on Reason.com.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition: In 2018, the Supreme Court unequivocally rejected the so-called “professional speech doctrine,” under which lower courts had been giving mere rational basis review to restrictions on speech instead of the usual, robust scrutiny that the First Amendment demands. And yet! The Eleventh Circuit recently resurrected the doctrine in all but name to uphold a Florida law that makes it a crime for anyone but a licensed dietician to give dietary advice. That won’t do. (And if you won’t take our word for it maybe you’ll find this amicus brief by several noted scholars, including Erwin Chemerinsky, persuasive.)

New on the Short Circuit podcast: The very best podcast episode on the Montana Supreme Court and the Montana Constitution that has ever been recorded this week.

• Friends, last week we shared a ruling of the D.C. Circuit in a wrongful arrest case that contained some puzzling redactions. This week, the D.C. Circuit released an unredacted version of the opinion. Turns out the redactions were mostly about how compliant the victim was and how little cause there was for arresting her.
• On April 24, 1996, Congress enacted the Mandatory Victims Restitution Act (MVRA), significantly extending the enforceability of restitution orders—from 20 years after entry of judgment to 20 years after release from imprisonment. Twelve days earlier, a New Jersey man commits an armed bank robbery. He’s convicted in May the following year, ordered to pay $20k in restitution, and remains in prison today. Can the gov’t seize his prison trust account to satisfy his outstanding restitution? Third Circuit: Nope. That would violate the Ex Post Facto Clause. Dissent: The Ex Post Facto Clause prohibits increasing someone’s punishment, but because of the time value of money, extending the time to pay actually decreases the punishment.
• Allegation: El Paso, Tex. officers are summoned to home by neighbor’s report of a riot in progress. Instead, they find it’s “just kids talking loudly” in the backyard. The teens decline to speak without an adult present and leave. The officers follow and, a block away, search a 16-year-old who lives at the home, finding a key to the house in her bra. The officers return to the house, enter, and find her mom helping to bathe two other daughters. Officers: We had to get into the home to see if anyone was having an emergency. Fifth Circuit (unpublished): No qualified immunity.
• What’s the difference between a short ton and a long ton? This Fifth Circuit opinion, finding no problem with the fees big ships must pay use the recently (and ongoingly) deepened and widened Sabine-Neches Waterway, answers that question (but steers clear of what kids these days mean by shit ton).
• The right to travel internationally is not fundamental and thus restrictions on that right are not deserving of strict scrutiny, says the Fifth Circuit. Which is not good news for this gentleman who had his passport revoked over a seriously delinquent tax debt.
• Service members sue the Air Force over its COVID-19 mandate, claiming it has given out thousands of waivers for health and administrative reasons but none for religious reasons, even though the regulations allow for all three kinds of waivers. District court: Looks fishy, here’s a preliminary injunction. Sixth Circuit: Certainly does, and the emergency request for a stay is denied. We’ll expedite the PI appeal, though.
• Two Michigan state troopers make national news when they’re arrested for stealing a bicycle during Mackinac Island bar crawl. One of the troopers: I had no idea the bike was stolen, which the officer who requested the arrest warrant knew and omitted. Sixth Circuit (unpublished): If true, could be malicious prosecution. No qualified immunity.
• Between 1978 and 1998, an Ohio State University athletic team doctor sexually abused over a thousand students. District court: Because of the two-year statute of limitations none of these 110 victims can sue the university under Title IX. Sixth Circuit: The claims are timely if the victims didn’t know Ohio State was responsible until a 2018 independent investigation revealed the extent of the abuse and cover-up. Dissent: The statute of limitations began to run when the victims knew they were injured, and the abuse alleged is so obscene that they plainly knew decades ago.
• Police ultimately had probable cause to arrest a gentleman for impersonating an officer, but, says the Seventh Circuit, the Whitestown, Ind. officer who handcuffed him beforehand is not entitled to qualified immunity because you can’t just go handcuffing folks willy-nilly during Terry stops. There’s rules.
• Sadly, however, the gentleman above, who, it turns out, did not impersonate an officer, gets no succor out of the Indiana Tort Claims Act for the damage to his car while it was in impound. Because, says the Seventh Circuit, police who engage in even egregious misconduct while carrying out legitimate law enforcement activity are exempted from liability under the Act.
• You can’t get your case into this humble little roundup unless you file a notice of appeal following final judgment from the trial court. Thankfully, the rules were amended last year to clarify that you don’t have to specify every single ruling you’re challenging—you just need to appeal the final judgment and all the other judgments can come along for the ride. Tenth Circuit: Unfortunately for this Colorado inmate, the change wasn’t retroactive, so his failure to specifically note his appeal from a partial summary judgment earlier in his case lets those defendants off the hook.
• A couple years ago a South Carolina circuit judge did something deeply reasonable and remarkably correct, holding that the state’s civil forfeiture laws are unconstitutional because, among other reasons, property owners must prove their innocence (even when the gov’t doesn’t put forth any evidence of guilt) and are not given prompt post-seizure hearings, meaning owners must wait months or years for the return of improperly seized property. Sadly, this week the South Carolina Supreme Court reversed, holding that it is for the legislature and not the judiciary to rein in the state’s well-documented forfeiture abuse. (This is an IJ case.)
• And in en banc news, the Eighth Circuit will not reconsider its ruling granting qualified immunity to Des Moines, Iowa police who are alleged to have racially profiled a Black driver. Two judges dissent from denial, arguing that it’s high time we set some clearly established law on the matter.
• And in further en banc news, the Ninth Circuit will not reconsider its ruling that there’s nothing unconstitutional about California banning prisoners who fought wildfires while incarcerated from becoming full-time firefighters upon release. (This is an IJ case.)

Earlier this year, Mauldin, S.C. officials rezoned their Main Street in hopes of promoting private development. The change means most of the businesses there (a mayonnaise factory, auto repair shops, a swimming pool repair company, a rental car business) are now nonconforming but grandfathered uses that can continue operating indefinitely. Arbitrarily, however, officials singled out one type of business for special mistreatment: The ordinance requires U-Haul rental businesses to close by the end of the year. Which, in addition to being lowdown and nasty, and also violating due process and equal protection, is a taking of private property without any (much less just) compensation in violation of the South Carolina Constitution. Click here to learn more about IJ’s latest lawsuit.

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

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In June 2020, Brittany Martin attended a Black Lives Matter protest in Sumter, South Carolina. There, she used strong language when speaking to police officers. “Some of us gon’ be hurting. And some of y’all gon’ be hurting,” she said. “We ready to die for this. We tired of it. You better be ready to die for the blue. I’m ready to die for the black.”

While Martin did not physically attack officers, she was arrested on June 4 and charged with five counts of threatening the life of a public official and one count of instigating, aiding, or participating in a riot. She was later indicted on a “breach of peace, high and aggravated” charge. According to the Associated Press, the jury acquitted Martin of the riot-related charge and reached no verdict on whether she threatened police officers’ lives. The jury only found Martin guilty of “breaching the peace,” which is typically punishable by a $500 fine and 30 days in jail. But prosecutors filed the charge as a “high and aggravated” crime, and Martin was ultimately sentenced to four years in prison.

“She’s in jail because she talked in America,” Sybil Dione Rosado, Martin’s trial attorney told the A.P. “She’s a dark-skinned Black woman who is unapologetically Black and radical.”

Breach of peace laws typically pertain to conduct that is categorically exempted from First Amendment protection, like playing loud music late at night or fighting in public. But they can also cover obscene or abusive language in public spaces. Martin’s speech occurred at a protest though, making the situation more difficult to categorize.

However, if Martin’s conviction were to be challenged on free speech grounds, it is possible it would still be upheld under the “fighting words doctrine.” Many state courts have found that cussing and yelling at police officers is a form of fighting words. While Martin did not curse at the police, the fighting words doctrine does not require speech to be profane. Rather, as Supreme Court Justice Frank Murphy wrote in Chaplinsky v. New Hampshire (1942), fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

It is difficult to know precisely how a court would rule on Martin’s speech. “While the Court has invalidated many convictions in fighting words cases, the doctrine remains alive and well in some state courts,” law professor David L. Hudson Jr. wrote for the Foundation for Individual Rights and Expression in 2017. “Even so, the cases are all over the map as to whether an individual’s profane outbursts cross the line into unprotected fighting words.”

Further, Rosado claims that during Martin’s trial, the judge did not allow her to explain to the jury that the “high and aggravated” distinction would lead to the possibility of a longer sentence for Martin.

Most state courts prohibit defense attorneys from telling juries the sentencing impact of a guilty verdict. What often results is “the jury decides to split the baby…. They don’t like the prosecution, they don’t like the case, and they will acquit on a number of charges,” Missy Owen, a lawyer who serves on the board of the National Association of Criminal Defense Attorneys, tells Reason, “and then maybe convict on what sounds to be the most minor of charges, which sometimes ends up not being minor at all.”

“Ms. Martin’s sentence of four years of active time for her conviction of BOPHAN [breach of peace, high and aggravated] is more than four times as long as even the lengthiest sentences for the same offense in the Third Circuit,” wrote civil rights lawyer and former South Carolina state lawmaker Bakari Sellers in a memorandum in support of a motion to reconsider Martin’s sentence, which was obtained by Reason. “In addition to that disparity, it is worth noting that numerous individuals convicted of federal crimes for violently assaulting police officers while storming the United States Capitol on January 6th, 2021 received lower sentences than Ms. Martin.”

Martin is pregnant and due in November. According to the A.P., “Martin said her body ‘can’t get comfortable with the baby’ and as of July, she lost 12 pounds while incarcerated, despite the pregnancy.” During her imprisonment, she has twice been rushed to the hospital by ambulance, once due to contractions and another time because she began preterm labor at 25 weeks.

According to Sellers’ memorandum, while South Carolina bans the shackling of incarcerated women during childbirth, if Martin remains in prison, South Carolina Department of Corrections policy mandates that she be separated from her newborn within hours of delivery and returned to prison. Her child will be placed into foster care.

All because she talked trash to a cop at a protest against police abuse.

The post In South Carolina, What You Say During Protests Could Land You in Jail appeared first on Reason.com.

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Freight railroads and unions representing nearly 125,000 workers reached a tentative agreement on a new labor contract that, for now, averts the possibility of an economically catastrophic strike.

The deal itself still needs to be ratified by union members before it becomes binding—and before the possibility of a strike that could have disrupted billions of dollars of daily commerce is put off for good—but both the unions and the Association of American Railroads, which represents the industry, have praised the deal. The details of the contract are not public, but the unions reportedly scored several of their top priorities, including graduated pay increases of 24 percent that will be doled out over several years and an average lump sum payment of $11,000 to all union members (a major carrot to get workers to approve the new deal). Much of the brinksmanship on display over the past week, however, had to do with a demand for paid medical leave—a demand that even the Biden administration opposed for being “too costly”—which was reportedly left out of the final deal.

That a strike was avoided is undeniably the most important thing, given the high economic stakes. But how we got to the brink of a major railroad strike is a fascinating, if convoluted, story as well—one that involves unions overplaying their hand in what they believed to be a favorable political environment, only to discover that Democratic politicians were not prepared to play ball.

This week’s labor drama was a crescendo that started building back on June 14. That was the day that the National Mediation Board (NMB), a federal agency that exists solely to facilitate deals between unions and management in the railroad and airline industries, ended mediation between the railroads and the dozen unions representing their employees. The decision to cut-off mediation was an unusual one, and it set up a “ticking time bomb toward an economy-jolting national railroad shutdown,” Railway Age, a trade publication, reported at the time.

It also appeared to be a politically motivated maneuver. The NMB voted 2–1 to end mediation, with both Democratic appointees in favor and the lone Republican on the board opposed.

Historically, Congress has had to step in and impose a third-party settlement when there is a breakdown in negotiations between railroads and their workers’ unions when a strike looms. By cutting off mediation in June, then, the NMB ensured that a potential work stoppage and any associated congressional intervention would happen before the midterm elections in November.

“Speculation is that rail labor seeks to throw the dispute before Congress while traditionally labor-friendly Democrats still control the House and Senate,” explained Railway Age contributing editor Frank Wilner. The unions seemingly confirmed that speculation a few days later with a statement in which they claimed to be “mobiliz[ing] our legislative departments” and “urging our members to begin reaching out to their” members of Congress.

In addition to having Democrats in control of Congress, the unions also likely believed they had an ally in the White House. After all, President Joe Biden scarcely seems to make a public appearance without talking up his pro-labor bona fides.

In both cases, they seem to have miscalculated. The Biden administration did indeed intervene—in August, Biden ordered the creation of an emergency board led by Labor Secretary Marty Walsh to draw up a deal for both sides to consider. That’s the deal union members are now voting on, but the unions initially objected to the lack of paid medical leave in the deal.

The paid medical leave policy that the unions sought would be “an overly broad and
very costly proposal,” Biden’s board wrote in its final report on the agreement. If adopted, it “would create 15 paid days a year that, while nominally labeled as sick
leave days, would be structured to be used on demand as a means of permitting employees to better balance work-life needs and would effectively be personal days.”

It was that part of the dispute that finally brought the threat of a strike to bear.

“The Presidential Emergency Board recommendation got it wrong,” the heads of two of the unions involved in the dispute said in a statement on September 11. In the same statement, they issued an explicit threat to strike and called for more aggressive government action. “It’s time for the federal government to tell the CEO’s [sic] who are running the nation’s railroads into the ground that enough is enough,” they wrote.

Despite that, Congress was prepared to impose the board’s agreement on both sides this week, until Sen. Bernie Sanders (I–Vt.) blocked a vote on the resolution. It is, of course, impossible to know if the political calculus would have changed in the event of an actual strike. It’s possible that Sanders and pro-labor Democrats would have backed down rather than be blamed for letting the strike disrupt huge swaths of the American economy.

But the Biden administration was clearly not thrilled about that prospect. During a meeting in early September, Walsh reportedly issued a blunt message to union leaders: “Don’t mess with the nation’s fragile economy weeks ahead of mid-term congressional elections as neither Congress nor the Biden Administration will like it.”

“Now the unions are getting a lesson in why government intervention isn’t always a good thing,” quipped Sean Higgins, a research fellow at the Competitive Enterprise Institute, a free market think tank.

It’s a lesson they probably should have already learned. As Railway Age‘s Wilner highlighted months ago, a similar gambit during the last railroad strike in 1991 ended with Congress voting overwhelmingly against the unions’ interests.

Congress may still have to get involved this time, but only if union members reject the tentative agreement. If that happens, it will be in a different political environment, because there will be a mandatory 60-day “cooling off period” before a potential strike. Any congressional action, therefore, will come after the midterms.

But it’s probably best for everyone—the industry, the unions, and everyone else who could be affected by a national railroad strike—if it doesn’t come to that.

The post How Railroad Unions Almost Broke the Economy appeared first on Reason.com.

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Don McLaughlin, the mayor of Uvalde, Texas, announced in June that Robb Elementary School would be demolished. “You can never ask a child to go back or a teacher to go back in that school, ever,” he said.

What happened in Uvalde was a gruesome tragedy that relates to some of America’s worst pathologies: a fixation on violence, untreated mental illness, large swaths of alienated and angry young men, incompetent and unaccountable police.

The media went looking for solutions: What if we could keep guns out of the wrong hands, or get the right people medicated, or reform the police, or fix what’s plaguing angry young men?

These are all legitimate questions. But one question the media rarely ask is this: Is the press part of the problem? A growing body of research says yes.

“This is learned behavior and the media coverage is leading more people to learn it and to copy it,” says University of Alabama criminologist Adam Lankford, who has studied mass killers for more than a decade. “The more victims they kill, the more fame and attention they get. They’re being incentivized by the media coverage to be as destructive as possible.”

“There seems to be too much demand for fame in America,” Lankford writes in one paper, “and not enough supply.”

One of Lankford’s studies found that “winning a Super Bowl or Academy Award garnered less media attention than committing a high-profile mass killing.” Perpetrators get pictured more on front pages than do their individual victims, and there’s “a strong correlation between the number of victims harmed in these attacks and the amount of media attention that perpetrators receive.”

“The media’s rewarding [these high body counts],” says Lankford. “I think part of [the motive] is clickbait, essentially.”

Some of Lankford’s studies delve deep into the written or recorded statements that the murderers made about their motivations and attempt to measure to what degree fame seeking motivates spree killers. He points out that the duo who shot their classmates at Columbine High School in 1999 said they wanted to kill 250 people and discussed whether Steven Spielberg or Quentin Tarantino would direct the movie about their crime. Many subsequent mass shooters have cited the Columbine murderers as inspiration.

Lankford’s 2019 study found that at least 16 mass shooters since Columbine have voiced fame or notoriety as a motive and that the fame seekers average more than double the body counts, and many articulated a desire to surpass past records.

“They’re using their victims as the means to an end,” says Lankford. “And that end is fame.”

It’s not just Lankford saying this.

A 2017 FBI report says the “dominance of 24/7 media coverage…perpetuates [the mass shooting phenomenon] and allows it to grow and evolve” and suggests “news media should refrain from naming the assailants, from posting their photographs, videos and communications, and from publishing detailed investigations into their lives and motives.” More than a hundred researchers have joined Lankford in signing an open letter, which asks major media to adopt new norms for covering mass killings, such as not naming them or publishing pictures of them.

“Nobody looks at the face of the most recent mass shooter and thinks, ‘Oh, now that I see what he looks like, I know how to stop these, these attacks more effectively,'” says Lankford.

Lankford and his fellow signatories aren’t calling for government intervention in terms of limiting the right of the media to publish certain information, but rather the adoption of the same sorts of ethical norms that encourage reputable outlets to withhold the names of rape victims.

“We’re not saying the government should, um, formally restrict this information,” says Lankford, who notes that such a policy would only increase distrust in government and  the media. “I think [media outlets] just need to look a little more closely at the evidence and, and take a look in the mirror and say, ‘Can I make this problem slightly less serious based on my own actions?'”

But could such a media blackout actually foster more misinformation by pushing information about the identities of shooters to the darkest corners of the internet, which aren’t governed by such norms and where the valorization of mass killers already thrives? Or could it deprive the public of crucial information or hide patterns that could prove useful in predicting and stopping future killings?

Lankford says that while he wants media outlets to refrain from publicizing names and pictures of mass shooters, that information about “warning signs or backgrounds” is still useful and worthwhile information to publish and analyze. And he says he’s “under no kind of delusion that this [identifying] information won’t get out in some ways,” but that large platforms refusing to publish names and pictures is still likely to help weaken the incentives for future fame-seeking spree killers.

“We’re not going to cut out all coverage, but if we don’t give these mass shooters Super Bowl–type like advertising…that in itself would, would make a difference,” says Lankford.

Many large media outlets have made some adjustments to their coverage in recent years, such as devoting more attention to the victims rather than perpetrators of mass killings. But a search of most major news sites about recent mass shootings reveals that publishing pictures and detailed biographies of killers is still the norm.

“One of the things I’ve seen, which was a little disturbing, is some members of the media kind of patting themselves on the back as if, ‘mission accomplished,'” says Lankford. “Doing something good on the one hand doesn’t mean that the other things you’re [still] doing that are dangerous are any less dangerous…Unfortunately, the pressure felt by members of the media because of the competition that they’re involved in sometimes seems to be leading them to resist change, even if there’s lots of evidence suggesting it would be the right thing to do.”

Many of us know the names of the Columbine shooters and many other killers. How many victims’ names do you remember? How about the name Elisjsha Dicken?

This picture (warning: gore) is what’s left of a wannabe mass shooter after Dicken gunned him down in a shopping mall after he’d shot three people at the beginning of what he likely planned to be a prolonged shooting spree. “Many more people would have died” if Dicken hadn’t intervened, said the local police chief.

If more angry young men saw those kinds of pictures of killers, instead of mug shots or old school photos, might they think twice before going on shooting sprees?

Demolishing the school building where the Uvalde tragedy occurred won’t do anything to stop others like it from happening again. But burying the legacies of the men responsible for such atrocities just might help.

Produced and edited by Zach Weissmueller. Animations by Tomasz Kaye. Additional graphics by Nodehaus.

The post Is the Media Making Mass Shootings Worse? appeared first on Reason.com.

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Access journalism has a bad rap, and for good reason. While it sometimes provides “all-access” insight into the psyches of the famous and powerful, it’s often little more than public relations for real and would-be autocrats disguised as reporting. Yet, granting every critique of access journalism, what we might call “no-access” journalism—reporting based entirely on already public information, especially press releases or other crafted statements from the subject of the story—is surely just as bad, and a weed with roots in the press and broader public alike.

Let’s begin with the press, and specifically its coverage of the war in Ukraine. Early on in the conflict, many international reporters were able to be on the ground in Ukraine, documenting the Russian invasion firsthand and picking up stories from still-active local media organizations. But as the conflict dragged on for more than six months, public interest in the war in the U.S. declined, and coverage priorities have shifted accordingly. Now it is not uncommon to see reports—particularly accounts of battlefield losses for Moscow—in which the Ukrainian government is a primary or only source for major elements of the story.

“A Russian marines brigade has been almost completely wiped out by Ukraine’s Armed Forces, Kyiv said Monday,” began a Newsweek article this week, citing a Facebook post by the General Staff of the Armed Forces of Ukraine and adding, “Newsweek has been unable to verify the claims.”

“In the Russian-occupied regions of the Crimea and southern Ukraine, Russian proxies, intelligence officers and military commanders have begun to evacuate and ‘urgently resettle their families’ back into Russian territory,” announced a short update from The Guardian one day later, citing “the defence intelligence of Ukraine’s military of defence.” Of the post’s 62 words, nearly a third were direct quotes from Kyiv.

From The Daily Beast comes a report of a Russian soldier heard complaining on the phone that the war is not what he was given to expect. “I imagined all of this differently, because there’s no kind of organization. I thought there was an army here, but it’s not an army here,” he said. “Everyone is out for themselves.” It’s a striking story—and also one provided by the Ukrainian defense ministry.

All of these accounts may be wholly true, and I don’t mean to suggest these outlets are doing anything irregular. Each one made the source of their information perfectly clear, so there’s no question of deception or sloppy work which might imply more evidence than is actually available. There will likely be updates, at least to stories on the scale of the first two, as outside observers arrive to confirm or deny what Kyiv said.

Yet for all that, there’s risk in this kind of reporting from afar. These initial stories of Russian setbacks will likely be remembered by more people than will any forthcoming corrections or qualifications, not least because most of us in the audience want to see Russia on the retreat. 

Moreover, the Ukrainian government, though clearly not the aggressor or instigator of this conflict, is not a neutral third party. It has interests that go well beyond journalists’ purpose in documenting, analyzing, and sharing facts. (Its defense ministry, after all, is analogous to the Pentagon, which hardly has a record of disinterested honesty.) “The Ukrainian military, which is engaged in a high-intensity war of national survival, is understandably quite secretive in many respects,” as Shashank Joshi, The Economist‘s defense editor, observed last month, and insofar as reporting relies on Kyiv’s statements, “the number of reports casting a more critical eye on the performance of the Ukrainians is limited.”

The troubling counterpart to this kind of reporting is an apparently rising refusal, especially among politicians, to talk to the press, either categorically or until the discussion happens on the interviewee’s terms. Presidential news conferences were on a downward trend even before former President Donald Trump made haranguing and dismissing the media a standard part of his campaign performance. But Trump seemed to love seeing his name in The New York Times or a CNN chyron at least as much as he hated it, and he continued to grant interviews through the end of his time in the White House. In the present election cycle, by contrast, many politicians—mostly but not exclusively Trump acolytes—are simply avoiding or outright declining to speak to the media.

The most prominent example of this may be GOP gubernatorial candidate Doug Mastriano of Pennsylvania, who reportedly won’t “respond to questions from local newspaper, digital, or television reporters” and sometimes bans journalists from campaign events.

Curiously, Mastriano’s mainstream press access seems to have decreased as the general election nears, the opposite of standard political strategy to broaden appeal after the primaries. “During the primary campaign, he occasionally answered questions from mainstream media, including this reporter,” concluded a recent story from Lancaster Online. “But since his victory last month, a cell phone number he used regularly is no longer answered and doesn’t accept voicemails. And his official Senate office stresses its role is to deal with official business only, not reporters wondering how to reach the candidate.”

The Washington Examiner‘s Salena Zito said her efforts to contact the Mastriano campaign were met with a public statement “by his campaign strategist that because I had not written anything nice about him, I would not be granted an interview until I wrote something that was.”

Is that a standard Mastriano will keep if he wins Pennsylvania’s highest office? And is it one we’ll see more widely adopted by candidates eager—as Trump was and Mastriano seems to be—to use social media to bypass and steer press coverage without accepting in turn the scrutiny media attention traditionally brought? Journalists reporting without real research is bad enough, but it will only get worse if politicians make that research impossible to complete.

The post What Happens When Reporters Are Barred From the Story appeared first on Reason.com.

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