Tag: in-the-news

From Watts v. Lucifer, decided yesterday by Judge Sam Crow (D. Kan.):

Petitioner James B. Watts, who is proceeding pro se and in forma pauperis, is a pretrial detainee incarcerated at the Butler County Jail facing state criminal charges…. Petitioner … [filed various motions, including a motion] titled “Motion to Get Page 1 of My Petition for Habeas Corpus with Case No. of GOD Almighty’s Number(s) and, Not of Lucifer’s (Satan’s, The Devil’s)…” Therein, Petitioner explained his belief that certain numbers are “of God Almighty’s Number(s),” while others are “of Lucifer’s” numbers.

The case number administratively assigned to this matter when Petitioner filed it is 22-3109-SAC; the number 2 is one of the numbers Petitioner believes is Lucifer’s. In his motion, Petitioner asserted that using “[a]ny…numbers that do not add up to GOD Almighty’s are [sic] against [his] Religion and/or Faith,” and he asked the Court to alter the case number to include only “GOD Almighty’s Number(s) and Not…Lucifer’s.” …

Petitioner … asserts that he “will not get any justice under this case” number because the case number “is for Evil [and] Wicked people and their justice.” He advises the Court that if it declines to comply with his requests to … grant Petitioner’s motions, it should dismiss this case without prejudice so that Petitioner may proceed in another, identical habeas action he has initiated in this Court….

[T]he Court notes that Petitioner’s newer habeas action has also been assigned a case number that begins with 2. See Watts v. Lucifer, Case No. 22-3195-JWL-JPO. This is because both of Petitioner’s current habeas actions were filed in the year 2022. The first two digits of every case number reflect the year in which the case was filed. Thus, any cases Petitioner files on or before January 1, 2030 will be administratively assigned a case number that begins with a 2. Therefore, dismissing this matter so that Petitioner may proceed in his more recently filed habeas action will not resolve Petitioner’s numerical complaint….

[T]he Court … does not take lightly Petitioner’s religious objections to his case number. However, Petitioner does not identify any legal authority that supports his demand that the Court change the administratively assigned case number to comport with Petitioner’s religious beliefs. In fact, the Court’s independent research has revealed only legal authority that supports the denial of Petitioner’s request.

For example, in the context of a religious objection to the assignment of a social security number, the United States Supreme Court held that the Free Exercise Clause does not require “that the Government join in [an individual’s] chosen religious practices by refraining from using a number to identify [his or her] daughter.” See Bowen v. Roy (1986). The Court explained: “The Free Exercise Clause affords an individual protection from certain forms of government compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.” Similarly, the Court has discovered no legal authority that gives Petitioner the right to demand that his administratively assigned case number be altered to comport with Petitioner’s religious beliefs….

The Bowen v. Roy analysis strikes me as quite correct here. See also Mayo v. Satan and His Staff (W.D. Pa. 1971).

The post Lucifer Dodges a Lawsuit appeared first on Reason.com.

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The Complaint filed today in Minaj v. Green is short (4 pages) and readable, so I thought I’d pass along pretty much the whole thing (minus the paragraph numbering and a bit of less interesting detail):

This action is brought to vindicate the reputation of Plaintiff, a superstar artist who is known as Nicki Minaj. The Defendants herein have outrageously defamed Plaintiff by posting a video on their Twitter page in which Defendant Marley Green (“Green”) who goes by the name of “Nosey Heaux,” falsely and maliciously stated that Plaintiff is a “cokehead” who is “shoving all this cocaine up her nose.” Further, evidencing a fundamental lack of decency, Green has also posted vile comments about Plaintiff’s one year-old son. While these comments are not actionable, they nonetheless demonstrate why punitive damages should be awarded in this case.

In a different age, Green’s lie would have been meaningless because she is the ultimate “nobody”—on information and belief, a person whose main accomplishments in life have been a string of criminal charges, bail jumping, and bad debts. But this is the age of social media, one in which a “nobody” can find an undeserved following through relentless self- promotion. Green is one of those “nobodies,” as she posts content belonging to her wholly owned company, Defendant Nosey Heaux Live LLC (“NHLLLC”), on multiple social media platforms. One of those platforms is the “Nosey Heaux Live” Twitter page, which, inexplicably, has approximately 3,300 followers. Green therefore has the means to publish a lie knowing that it will metastasize as it is retweeted by her followers, and then further retweeted by the followers of her followers, and so on.

That is what has happened here. In just the day following Green’s September 12, 2022 publication of her lie that Plaintiff is a “cokehead” on her Twitter page, almost 2,000 people had “liked” it. More importantly, more than 260 people had retweeted it, which led to a firestorm of social media attention which was undoubtedly caused by multiple levels of subsequent retweets. While social media is an extraordinarily effective vehicle for spreading lies, it does not confer a license to do so.

On information and belief, and as discovery will likely reveal, Green has been acting as a proxy for another performer who, mistakenly believing that she and Plaintiff are stars of equal stature, has repeatedly used other social media intermediaries in a hopeless effort to advance her career at Plaintiff’s expense. However, the fact that Green was acting at the behest of another does not make her conduct less egregious or excuse her from the consequences of the damages she has caused Plaintiff to suffer….

For at least the past year, Defendants have used the various Nosey Heaux Live social media platforms in an effort to demean and insult Plaintiff—efforts which were of no concern to Plaintiff.

However, the situation changed on September 12, 2022, when Defendants posted a video on the Nosey Heaux Twitter page in which Green stated (“Green’s Video Statement”) that Plaintiff is “shoving all this cocaine, shoving in all this cocaine up her nose. Allegedly. Thank you. Allegedly. But we all know it’s true. Fuck—listen, I can’t even say allegedly with that ’cause I—we know it’s true. I’m not saying allegedly on that. Nicki Minaj is a coke head.” (Emphasis supplied).

Green’s Video Statement was defamatory per se in that it (a) charged Plaintiff with a serious crime, and (b) tended to injure Plaintiff in her trade, business, or profession.

Green’s Video Statement was false because Plaintiff has never used cocaine.

Green, on behalf of herself and NHLLLC, made the Green Video Statement with actual malice in that they either knew that it was false or knew that there was a high probability that it was false.

The Green Video Statement was not protected by any privilege.

The Green Video Statement constituted slander per se.

By reason thereof, Plaintiff has been damaged in an amount to be determined by the jury, but which is in no event less than $75,000.

In addition, because Defendants’ conduct was so wilful, wanton and malicious, Plaintiff is entitled to recover punitive damages in an amount to be determined by the jury….

Compliments to plaintiff’s lawyer Judd Burstein, for conciseness and clarity. (I of course can’t speak to the factual merits of the case.)

The post Nicki Minaj v. "Nosey Heaux" Libel Lawsuit appeared first on Reason.com.

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Last year, I wrote about a case in which media outlets were forbidden from identifying a recently released drug cartel ex-boss as plaintiff in a privacy lawsuit. There is now an appeal in the case, but the Ninth Circuit (acting through its Appellate Commissioner) has provisionally sealed the appellant’s opening brief until the merits panel can decide a motion to seal, which will likely be many months from now.

I’m therefore planning to file this motion to intervene and reconsider, on my own behalf (it’s due tomorrow, though I’d like to file it late tonight or early tomorrow morning); would love to hear people’s comments on it before I do file it. Here’s the substantive part:

Motion to Intervene and Reconsider Order of Sept. 1, 2022

Eugene Volokh seeks to intervene in this case, solely in order to ask this Court to reconsider the Order of Sept. 1, 2022, which provides that Appellant’s Opening Brief should be “maintain[ed] under provisional seal” until the sealing questions are resolved by “the panel assigned to decide the merits of this appeal.” Volokh would like to exercise his right to promptly access a redacted version of the Opening Brief, even if Doe’s name and identifying information need to be deleted from the brief for now….

II. Appellate briefs may not be fully sealed, even temporarily, without a showing that redaction would not be possible

“[T]he public’s First Amendment and common law rights of access” extend to “appellate filings” as well as trial court filings, because “the public should be given an opportunity to engage in and follow the dialogue” within those filings. United States v. Index Newspapers LLC, 766 F.3d 1072, 1097 (9th Cir. 2014). Circuit Rule 27-13(a), which recognizes that “This Court has a strong presumption in favor of public access to documents,” reflects this principle. And “the public interest in ob­taining news is an interest in obtaining contemporaneous news,” Courthouse News Serv. v. Planet, 947 F.3d 581, 594 (9th Cir. 2020) (emphasis added), not long-delayed news. Indeed, even a delay of from a few days to “up to two weeks” in making filed documents accessible may violate the right of access. Id. at 597-98.

This right of contemporaneous access can be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Phoenix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th Cir. 1998) (cleaned up). In particular, even when some information in a document must be kept confidential, it should generally just be redacted, rather than having the whole document sealed. See 9th Cir. R. 27-13(e) (requiring that a motion to seal “shall request the least restrictive scope of sealing and be limited in scope to only the specific documents or portion of documents that merit sealing, for example, propose redaction of a single paragraph or limit the request to a portion of a contract”). “When redaction is required to protect privacy interests, it must be narrowly tailored to allow as much disclosure as is feasible.” Certain Interested Individuals v. Pulitzer Pub. Co., 895 F.2d 460, 467 (8th Cir. 1990) (quoting Matter of Search Warrants Issued on June 11, 1988, for the Premises of Three Buildings at Unisys, Inc., 710 F. Supp. 701, 705 (D. Minn. 1989)).

Volokh does not object to having Doe’s name and identifying information being kept confidential while the appeal is pending, so as to preserve the merits panel’s ability to decide the substantive issues in this appeal. But, as Rule 27-3(e) suggests, “Where redaction of a document is feasible, the moving party shall highlight in the unredacted document all portions of the document that party is seeking to file under seal,” and the redacted version should then be publicly released.

To be sure, Volokh appreciates that it is often most convenient to defer various motions to the merits panel. But that cannot authorize provisional sealing of briefs for many months, given the public’s common-law and First Amendment rights of access to court filings. The “substantial interest in the orderly administration” of the judicial process, Courthouse News Serv., 947 F.3d at 596, may sometimes authorize brief sealing while a decision is being made—but not sealing that causes unnecessary “lengthy delays” between the time a document is filed and the time it is made publicly available, id. at 597.

Instead, either the Appellate Commissioner or a motions panel can make express “findings” whether “closure is essential to preserve higher values and is narrowly tailored to serve that interest,” Phoenix Newspapers, 156 F.3d at 946 (9th Cir. 1998)—and in particular can decide whether redaction rather than outright sealing is a feasible way of preserving the merits panel’s role in deciding the ultimate issues while still protecting the public right of access. Simply deferring the decision to the merits panel, without such “findings” that “closure is essential,” would likely “cause[] far greater delays than [are] necessary to adequately protect [this Court’s] administrative interests given the reasonable alternatives available.” Id.

Conclusion

Volokh therefore asks that he be allowed to intervene, and that this Court reconsider (under 9th Cir. R. 27-10(b)) the September 1 decision that provisionally sealed the briefs until the merits panel is assigned.

And here’s the part about intervention:

I. Volokh is entitled to intervene for the purpose of getting access to court records

Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School of Law, where he writes often about First Amendment law. He has written about this case at Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1375-76 (2022), https://ift.tt/XcSG1Z8, and at Eugene Volokh, Media Outlets Forbidden from Identifying Recently Released Drug Cartel Ex-Boss as Plaintiff in Privacy Lawsuit, Volokh Conspiracy (Reason) (Oct. 12, 2021, 2:59 pm), https://ift.tt/KyeNWpQ. He would like to write further about the appellate briefing in the case, but cannot do so because the opening brief is sealed until the case comes before the merits panel, which will likely be many months from now.

“Nonparties seeking access to a judicial record in a civil case may do so by seeking permissive intervention under Rule 24(b)(2).” San Jose Mercury News v. U.S. Dist. Ct., 187 F.3d 1096, 1100 (9th Cir. 1999). This extends to intervening on appeal as well. Trump v. Deutsche Bank AG, 940 F.3d 146, 150 (2d Cir. 2019). Generally, “a court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common,” San Jose Mercury News, 187 F.3d at 1100. But in cases involving requests to access court records, the “independent jurisdictional basis and strong nexus of fact or law are not required where intervenor merely seeks to challenge a protective order” (such as a sealing order). Id. And this request is timely, because it is filed within two weeks of the order stating that the Appellant’s Opening Brief shall remain sealed until the merits panel considers the matter.

The post Draft Motion to Get Access to an Interesting (but Sealed) Appellant's Brief in a First Amendment Case appeared first on Reason.com.

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California’s state government is plowing ahead with its plan of sending free money to people to mitigate the pain of inflation.

On Tuesday, state Sen. Nancy Skinner (D–Berkeley) tweeted a reminder that in October, California residents who filed a tax return in 2020 should start seeing checks appear in their mailboxes courtesy of the Better for Families tax refund program.

Folks,

Beginning in early October, most California residents will start receiving cash refunds to help respond to the higher costs caused by inflation.

Find out more about the Better for Families tax refund program:https://t.co/Hd1VRDF5JP pic.twitter.com/fIYBGZTrOJ

— Nancy Skinner (@NancySkinnerCA) September 13, 2022

The rough sketches of the program were announced in late June as part of the budget deal reached between Gov. Gavin Newsom, a Democrat, and state legislative leaders.

The $9.5 billion program will provide checks of up to $1,050 depending on one’s income, filing status, and number of dependents. Single-filers earning more than $250,000 (or joint filers earning more than $500,000) aren’t eligible for the checks.

Much like the Inflation Reduction Act passed by the U.S. Congress last month, these tax refunds will likely exacerbate the problem they’re trying to mitigate.

The program puts cash in the hands of low- and middle-income consumers with a higher marginal propensity to consume. That’s a fancy way of saying they’re more likely to spend this money instead of saving or investing it. That’s particularly true in an inflationary environment where prices are rising fast.

And boosting statewide demand will boost prices.

There’s already evidence of federal checks-for-all have increased inflation. The $1.9 trillion American Rescue Plan, passed in March 2021, which included $1,400 stimulus checks, is estimated by one Federal Reserve Bank of San Francisco analysis to have raised inflation by three percentage points.

It’s important to point out that the state is issuing these tax refunds because it sort of has to. A convoluted budget mechanism known as the Gann Limit requires the California state government to return budget surpluses to taxpayers or spend them on a few budget categories like infrastructure and education.

One libertarian argument would be that, given the Gann Limit, it’s better to return that money to taxpayers than let state bureaucracies spend it on public works and public programs.

That’s a fair enough perspective. It’s complicated by the fact that the state is mostly flush with revenue because of higher-than-expected tax returns from high-income earners. Many of those high-income earners either won’t qualify for the Better for Families program. The Better for Families program is therefore an income redistribution program. For many recipients, their payout might exceed their state tax burden.

Leaving money to state bureaucracies to spend, which has obvious libertarian drawbacks, would probably be better for inflation. Those bureaucracies would be slower to spend the money and thus less prone to boosting demand.

Better yet, California’s politicians could return the state’s budget surplus to the high-income earners who funded it. That would be fairer. It would also be less likely to increase inflation because higher income earners have a lower marginal propensity to consume.

That’s not what state politicians did. The state’s consumers will now reap the consequences.

The post California Plows Ahead With Providing Free Money To Mitigate Inflation appeared first on Reason.com.

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Today’s guest is Phil Magness, the intellectual watchdog based at the American Institute for Economic Research (AIER) who is keeping tight tabs on suspect claims from journalists and academics. 

His targets have included Nikole Hannah-Jones, the creator of The New York Times‘ Pulitzer Prize–winning series The 1619 Project, which Magness documented was being stealth-edited after several prominent historians pointed out major errors in its analysis. He’s also gone after Hans-Herman Hoppe, a professor emeritus at the University of Nevada, Las Vegas, and a distinguished senior fellow at the Mises Institute. Hoppe is an arch critic of democracy and increasingly influential within the Libertarian Party. But despite his affiliation with a group named for the eminent Austrian economist Ludwig von Mises, Magness says that Hoppe presents “the complete inversion of Mises’ thought,” especially when it comes to immigration.

Magness has a Ph.D. from George Mason University’s school of public policy, and he’s written and co-written books on what he calls “the moral mess of higher education” and on Abraham Lincoln’s plan for black resettlement after emancipation. 

This interview was recorded at FreedomFest, the annual July gathering in Las Vegas, and we also talk about specious attacks on the school choice movement and Nobel laureate economist James Buchanan as racist, as well as Magness’ excellent Reason article from earlier this year that has led to the ongoing plagiarism investigation of Princeton historian Kevin Kruse. We also discuss Magness’ new project of figuring out how Karl Marx became such a powerful influence on 20th- and 21st-century thinking despite being relatively obscure during his lifetime.

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The post Phil Magness: Holding Leftists and Libertarians Accountable appeared first on Reason.com.

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“Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption,” former President Donald Trump said in November 2018. “So if something happens and they make a mistake, they get a second chance at life.”

A month later, Trump signed the First Step Act—one of his signature pieces of legislation, which gave second chances to many people with criminal records. It was a good bill that every Republican in the House voted for, save two. However, now conservatives—including supporters of Trump’s signature criminal justice reform bill—are claiming that it’s wrong to hire former criminals.

“Democratic Rep. Sean Patrick Maloney has history of employing convicts,” the New York Post wrote on September 3. In the story, we learn that Maloney has reportedly paid two people with criminal records: Theodore Bickley, who served six years after he was found with $900 in counterfeit cash, and Jonathan Alvarez, who served 12 years for manslaughter.

In an interview with the Post, First Step supporter Rep. Elise Stefanik (R–N.Y.) lambasted Maloney’s “personnel choices of hard-core criminals.” A few weeks prior, she tweeted that “New Yorkers want LAW & ORDER.” Did she not read the bill she supported? Or does she simply not understand the concept of second chances?

Let’s consider Alvarez’s case. When he was a child, his father was deported to the Dominican Republic after he was caught drug trafficking. Alvarez started selling drugs himself at 13; at 17, he defended a friend in a street fight against a 22-year-old, who died from his injuries. Alvarez left prison at 30 and then worked for Maloney as a congressional fellow from January 2019 to July 2019. He made all of $12,750.

“[Alvarez] graduated from the Bard Prison Initiative, which helps violent cons reenter society,” notes the Post. “Maloney has long been a champion of the program and spoke at their 2014 commencement ceremony.” The reader is supposed to be scandalized by this.

Alvarez has turned his life around after a very rocky upbringing. What jobs does Stefanik and the Post believe he is worthy to hold?

Conservatives have taken the same approach in the Pennsylvania Senate race.  “Pennsylvania Democratic Senate nominee John Fetterman hired two convicted murderers to work for his campaign,” Fox News wrote earlier this month, “and his Republican opponent in the state’s November election, Mehmet Oz, claims it shows he is soft on crime.”

The piece goes on to detail the case of Dennis and Lee Horton, brothers who were convicted of second-degree murder and served 27 years in prison after police pulled them over one evening in 1993 and found a friend of theirs, Robert Leaf—who had just taken part in a deadly robbery—in their backseat with a rifle.

Buried in the piece is that both brothers were recommended unanimously for clemency by the Pennsylvania Board of Pardons after maintaining their innocence for the nearly three decades they spent behind bars. Though the brothers admit to giving Leaf a ride that night, they say they were unaware of and uninvolved with the crime. Before their trials, they were offered plea deals ranging from five to 10 years in prison; they declined, went to trial, and were sentenced to life in prison. Leaf was paroled in 2008.

It’s a strange point for a publication or a politician to make. We should keep punishing two men, we’re told, for crimes they potentially did not commit and for which they received clemency.

Do conservatives also feel that way about the men and women who received clemency from Trump?

The notion that people should be expelled from polite society after leaving prison might sound tempting to those who want revenge. But that pound of flesh was extracted by prison, and post-incarceration employment is one of our most effective ways to discourage recidivism. Fox lamented that “the two brothers have raked in nearly $50K” since they were hired last December. That’s not much between two grown men who earned it through legal employment. What exactly does the Fox writer want them to do instead?

Ninety-five percent of state prisoners will be set free at some point. The question we have as a society is what we let them do with that freedom when they get it. If you support law and order, you should want all of them to succeed for the sake of that principle, not despite it.

This recent coverage is not an anomaly. The Post, for its part, has been beating this drum for a while. One of its preferred subjects is Dyjuan Tatro, who served 12 years in prison, got two degrees behind bars, and went on to get a job with the Democratic Congressional Campaign Committee. “The House Democrats’ campaign arm has hired an ex-gangster-turned-high-profile criminal justice advocate for a top leadership position,” the Post wrote last year. Again, reader, you are supposed to be scandalized.

Tatro is, but for different reasons. “I have done everything they say that someone like me is supposed to do to redeem themselves,” he told me in a phone interview, “but they’re willing to undermine that, and to undermine public safety and individual accountability, in order to play partisan politics.”

There’s a difference between politics, which is performative, and policy, which is actionable. It’s a distinction he very much understands as someone who has pushed to have Pell Grants—which subsidize education costs—restored for the incarcerated, so that more prisoners can access the same recidivism-reducing tools he did. “We could not have restored [education funding] to incarcerated people without Republican support,” he says. “You have to remember that Donald Trump signed that bill. Donald Trump was the president who restored higher-education access to incarcerated people in this country.”

That bill, not to be confused with the First Step Act, refers to the omnibus budget passed at the close of 2020, which reinstated those grants for the incarcerated after the notorious 1994 crime bill enshrined a ban that lasted 26 years. It was one of the last things Trump did in office. “They did that because it’s good policy,” says Tatro.

It is good policy. It’s also mostly uncontroversial behind closed doors. But when the doors are open, some opt for politics, not policy. “You cannot say that we care about public safety, that we care about lowering recidivism, that we care about second chances or rehabilitation…and at the same time exclude formerly incarcerated people from gainful employment,” says Tatro. “They’re shooting themselves in the foot.”

The post Hiring Formerly Incarcerated People Is Good, Actually appeared first on Reason.com.

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In July 2021, President Joe Biden was asked by a reporter whether he had any message for platforms like Facebook. “They’re killing people,” he replied. “The only pandemic we have is among the unvaccinated. And they’re killing people.”

His press secretary at the time, Jen Psaki, and legions of Democrats rushed to his defense, saying Biden was referring to so-called “misinformation” spread on the platform by the “disinformation dozen”—some 12 or so accounts deemed responsible for the vast majority of the platform’s vaccine-skeptical content. But Biden, Psaki, and others in the administration have frequently used White House podiums to make bold and inexact claims about the harm posed by social media companies, either implicitly suggesting or more explicitly demanding that these companies change their content moderation practices in line with the administration’s preferences.

“Facebook needs to move more quickly to remove harmful violative posts,” Psaki said from her official perch, adding that “you shouldn’t be banned from one platform and not others for providing misinformation,” as if one platform has any control over the decisions made by the other.

This type of government pressure, as well as “bullying, threatening, and cajoling” that attempts “to sway the decisions of private platforms and limit the publication of disfavored speech” is known as jawboning, and is the subject of a new report put out by Will Duffield, a policy analyst at the Cato Institute. “Left unchecked, [jawboning] threatens to become normalized as an extraconstitutional method of speech regulation.” More:

“Jawboning occurs when a government official threatens to use his or her power—be it the power to prosecute, regulate, or legislate—to compel someone to take actions that the state official cannot. Jawboning is dangerous because it allows government officials to assume powers not granted to them by law.”

In summer 2021, for example, “Surgeon General Vivek Murthy issued an advisory on health misinformation, including eight guidelines for platforms,” following the Psaki and Biden comments. “On its own, the advisory would have been inoffensive, but statements by other members of the administration suggested sanctions for noncompliant platforms,” writes Duffield.

“White House communications director Kate Bedingfield completed the jawboning effort during a Morning Joe interview. Prompted by a question about getting rid of Section 230, she replied, ‘we’re reviewing that, and certainly they should be held accountable, and I think you’ve heard the president speak very aggressively about this …’ By gesturing at changes to the intermediary liability protections that social media platforms rely on, Bedingfield added a vague threat to the administration’s demands. …

By raising the specter of changes to, or the repeal of, Section 230, the Biden administration made a roundabout threat. Repealing Section 230 would not make vaccine misinformation unlawful, but it would harm Facebook by exposing it to litigation over its users’ speech. By demanding the removal of misinformation and threatening repeal, the administration sought to bully Facebook into removing speech that the government couldn’t touch.”

Duffield has worked to track prominent examples of jawboning (database found here, replete with examples of censorship attempts by politicians of both parties). Though “not every demand is paired with a threat,” he writes, “all the demands are made in the course of discussions about potential social media regulation.”

“In general, we know that a lot of jawboning happens behind closed doors,” Duffield tells Reason. “There were, prior to 2016, a couple of high-profile cases like Wikileaks,” he notes, “but the current era of normalized platform jawboning really begins after the 2016 election.” He highlights Sen. Dianne Feinstein’s (D–Calif.) social media crackdown attempts on purported Russian disinformation back in 2017, as well as the possibility that Twitter’s decision to limit the circulation of the Hunter Biden laptop story was due to how the company had come under fire, trotted before Congress, and subsequently strengthened their hacked materials policy. “If they didn’t take that down, and it turns out to be a foreign op, and it changes the course of the election, they’re going to be right back testifying in front of Congress, hammered with regulation and fines,” noted disinformation researcher Clint Watts, according to the Cato report.

Some platforms have been broadly resistant to government officials’ demands, whether explicit or implied. The cloud-based instant messaging service Telegram, Duffield notes, is “notorious for ignoring both requests and court orders,” but this is probably due to the platform not being based in the U.S.; it thus has less reason to comply with U.S. laws than platforms like Facebook and Twitter. (Telegram, it’s worth noting, is beating out competitors like Facebook Messenger and WhatsApp in much of Eastern Europe and the Middle East, including, interestingly, in both Ukraine and Russia.)

But Telegram’s case is sadly an exception to the rule. Whether it’s congressional staffers pressuring social media employees to make certain content moderation calls behind closed doors or sitting U.S. senators asking tech CEOs to testify before them—and sit pretty for their grandstanding and hectoring—”it is not the job of Congress to oversee, second guess, or direct the decisions of private intermediaries,” writes Duffield. “Such oversight presumes a role in speech regulation that the Constitution specifically denies Congress.”

It’s not just Section 230, and changes to liability protections that members of Congress and Biden administration officials threaten companies with. “While some changes to Section 230 would change how platforms moderate speech, antitrust would harm or dismember the noncompliant firm,” says Duffield.

This may well be the disturbing bipartisan future of jawboning.

The post How Government Officials Bully Social Media Companies Into Censorship appeared first on Reason.com.

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Good news in England for people who like good food: New Prime Minister Liz Truss’ administration is taking aim at the country’s overly oppressive attempts to regulate what people eat.

Health experts in the United Kingdom say it has a massive obesity problem, with around two-thirds of Brits classified as overweight. And because England has socialized health care, everybody is responsible for paying the additional medical expenses that may come from treating those who are obese, which the National Health Service (NHS) calculates at more than 6 billion pounds a year (almost $7 billion).

For the past five years, U.K. officials have attempted to address the problem by blaming just about everybody except those who overeat—advertisers, supermarkets, restaurants—and putting into place very broad, very strict regulations to fight junk food, or at least what the government defines as junk food. Advertising bans on junk food have been written so broadly that they also affect foods like cheese, butter, and olive oil. London introduced a ban on junk food ads so far-reaching that the government had to change ads on its transit systems because they included images of forbidden foods like strawberries and cream.

As the COVID-19 pandemic hit, U.K. health officials used it to crank up the nanny state regulations even further. In 2020, the government announced additional bans on junk food advertising, new rules on where unhealthy foods could be displayed in markets, and a prohibition on two-for-one deals featuring foods the government has decided are unhealthy.

Then the inflation and supply shortages got worse. Then-Prime Minister Boris Johnson decided in May to delay the bans. Deliberately driving up food prices amid a supply and inflation crisis did seem like a bad idea, but health officials were furious that he didn’t follow through.

Truss might look to scrap the nanny food campaign entirely, supported by her health secretary and Deputy Prime Minister Thérèse Coffey. Via The Guardian:

Truss pledged during the Tory leadership campaign to light a bonfire of obesity rules if she won. “Those taxes are over. Talking about whether or not somebody should buy a two-for-one offer? No. There is definitely enough of that,” she told the Daily Mail last month.

“What people want the government to be doing is delivering good roads, good rail services, making sure there’s broadband, making sure there’s mobile phone coverage, cutting the NHS waiting lists, helping people get a [doctor’s] appointment. They don’t want the government telling them what to eat”, she added.

Reason noted the absurdity of the ban on discounting food when it was announced in 2020. Health officials claimed the sales caused people to “buy more food than they need.” But people always need food, and the food they didn’t eat at purchase can be saved for later. It was a bizarre and privileged policy authored by people who seemingly haven’t had to budget for meals or time.

The Guardian noted back in May when Johnson delayed the plans to ban daytime junk food ads that it would also have cost broadcast networks in the U.K. more than 200 million pounds a year ($230 million) in lost revenue.

Truss was promising to scrap these rules back in August if she became prime minister. And in 2019 when she was a member of Parliament for South West Norfolk, she was already criticizing these types of approaches to deal with health issues:

The assumption is that society is a machine where levers can be pulled, the handle can be cranked, and better results will ensue. So, there are calls to regulate or ban foods too high in sugar or fat, to reduce obesity. … But people aren’t machines — they are agents of their own destiny. In Scotland, alcohol consumption has gone up despite the introduction of the minimum alcohol price. Years of focusing on low-fat diets didn’t work. Butter is enjoying a resurgence, after it turned out margarine wasn’t a healthier choice after all. Over the long term, it is free societies, where people are able to lead their own lives, that have better results in terms of health, the environment, and life expectancy. Rather than trying to micromanage people’s lives, we should focus on breaking down barriers to success whilst allowing us all the freedom to make our own choices

So let’s appreciate Truss approaching the obesity crisis by encouraging free market solutions rather than government controls. She should consider a similar approach for the country’s energy issues rather than attempting to freeze energy bills and risk the possibility of blackouts and/or rationing.

The post U.K.'s New Prime Minister Targets Country's Aggressive Food Nannies appeared first on Reason.com.

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The federal abortion ban that Sen. Lindsey Graham (R–S.C.) proposed yesterday is moderate compared to state laws that have been enacted or taken effect since the Supreme Court overturned Roe v. Wade in June. But it is based on an audacious claim of congressional authority to regulate abortion that obliterates the constitutional distinction between state and federal powers. If successful, Graham’s reasoning would renationalize a controversy that Roe‘s opponents have long argued should be settled state by state.

Graham’s bill, which has provoked more dismay than enthusiasm among his Republican colleagues, would make it a federal felony, punishable by up to five years in prison, to perform an abortion at 15 weeks of gestation or later. Its very name, the Protecting Pain-Capable Unborn Children From Late-Term Abortions Act, is contentious. Graham controversially argues that “an unborn child is capable of experiencing pain at least by 15 weeks gestational age,” and he arbitrarily defines abortions at that point, early in the second trimester, as “late-term.” But in practical terms, a 15-week ban is far milder than the restrictions that many states have imposed or begun to enforce in recent months.

In 2019, according to data collected by the Centers for Disease Control and Prevention (CDC), just 8 percent of U.S. abortions were performed after 13 weeks of gestation. By contrast, bans that apply after fetal cardiac activity can be detected—which typically happens around six weeks, before many women even realize they are pregnant—cover a large majority of abortions. The CDC reports that 57 percent of U.S. abortions were performed after six weeks in 2019. A substantial share of the rest also would have been covered by “heartbeat” laws. Some state bans go even further, covering nearly all abortions at any point after conception.

Graham’s bill would permit abortion after the 15-week cutoff when a doctor deems it necessary to “save the life of a pregnant woman” or in cases involving rape or incest. While the latter two exceptions are widely supported, even by people who describe themselves as “pro-life,” many anti-abortion activists and politicians oppose them. In July, the Poynter Institute reported that 15 of 22 states with “new or forthcoming limits on abortion” did not make exceptions for rape or incest.

Notwithstanding these relatively moderate elements, Graham’s bill would establish a new precedent for national restrictions on the timing of abortion. Activists hope to build on that precedent with progressively stricter limits that would apply even in states where most legislators and voters oppose them.

That approach has generated a backlash not only from pro-choice Democrats but from pro-life Republicans. To some extent, those Republicans are worried about the political cost of broaching this issue less than two months before the midterm elections. But several also have implied that national abortion restrictions are contrary to the principles of federalism.

“I don’t think there’s an appetite for a national platform here,” Sen. Shelley Moore Capito (R–W.Va.) told Politico yesterday, when West Virginia legislators approved a bill that would ban nearly all abortions. “My state, today, is working on this. I’m not sure what [Graham is] thinking here. But I don’t think there will be a rallying around that concept.”

Senate Minority Leader Mitch McConnell (R–Ky.) likewise said most of his Republican colleagues “prefer this be handled at the state level.” Those Republicans seem to include Sen. John Cornyn (R–Texas), who said “there’s obviously a split of opinion in terms of whether abortion law should be decided by the states.” He added that “my preference would be for those decisions to be made on a state-by-state basis.”

On the face of it, that “preference” is mandatory under the Constitution, which does not give Congress the authority to regulate abortion or any other medical practice. The states, by contrast, retain a broad “police power” that, in the absence of Roe, can be used to restrict or prohibit abortion.

Graham claims his bill is authorized by the 14th Amendment’s guarantees of due process and equal protection. Those guarantees apply to “any person,” which in Graham’s view includes fetuses (or, as he prefers, “unborn children”). Although some abortion opponents have long favored that interpretation, the Supreme Court explicitly rejected it in Roe and has yet to revisit the issue.

In addition to the 14th Amendment, Graham cites the federal government’s power to regulate interstate commerce, “as interpreted by the Supreme Court.” Since the Court has stretched that power to accommodate nearly anything Congress wants to do, that argument looks more promising. But even the super-elastic Commerce Clause invented by the Court’s precedents may not be malleable enough to cover a nationwide ban on abortion after 14 weeks of gestation.

The 2003 Partial-Birth Abortion Ban Act—which, unlike Graham’s bill, restricts methods rather than timing—notionally applies to abortions “in or affecting interstate or foreign commerce.” As Independence Institute scholar David Kopel and University of Tennessee law professor Glenn Reynolds have noted, that language is baffling “to any person not familiar with the Commerce Clause sophistries of twentieth century jurisprudence,” since “it is not really possible to perform an abortion ‘in or affecting interstate or foreign commerce'” unless “a physician is operating a mobile abortion clinic on the Metroliner.”

Those sophistries were epitomized by a 2005 decision in which the Supreme Court said the Commerce Clause was broad enough to encompass state-authorized medical marijuana that was never sold and never crossed state lines or even left the grower’s property. “If Congress can regulate this under the Commerce Clause,” Justice Clarence Thomas warned in his dissent, “then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

When the Supreme Court upheld the Partial-Birth Abortion Ban Act as consistent with Roe in 2007, it did not address the law’s Commerce Clause rationale. In his concurring opinion, Thomas noted that “whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court.”

Unfortunately for them, Democrats are in no position to argue that abortion legislation exceeds the federal government’s enumerated powers. They not only rely on an expansive understanding of the Commerce Clause to justify much of their agenda; they have explicitly cited the Commerce Clause as a license for Congress to override state decisions regarding abortion.

The Women’s Health Protection Act of 2021, which the House passed along party lines last year, would have established “a statutory right” to “provide abortion services,” prohibiting a wide range of state restrictions. By way of constitutional justification, it averred that “abortion restrictions substantially affect interstate commerce in numerous ways,” citing, among other things, the interstate purchase of equipment and drugs used to terminate pregnancies. A similar bill that the Senate considered last May did not even bother to explain its constitutional basis.

Republican members of Congress typically claim to be more concerned about constitutional limits on their powers. But as the Partial-Birth Abortion Ban Act and Graham’s bill show, they are often willing to sacrifice their avowed principles to advance the policies they favor.

This cavalier attitude is shortsighted as well as unprincipled. If Congress can force states to allow abortion, it can also prevent them from allowing it. Conversely, if Congress can restrict abortion under the Commerce Clause, it can also establish a statutory right that precludes state regulation. That position would make abortion policy throughout the country contingent on the vicissitudes of federal elections. Instead of a diversity of policies based on a diversity of opinions in a vast nation of 50 states and 332 million people, we would get just one, always subject to change depending on who happened to be in power.

The late Justice Antonin Scalia complained that Roe “destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.” The compromise that Scalia envisioned—letting states go their own way on abortion—is today threatened by maximalists on both sides of the issue.

The post Lindsey Graham's Abortion Ban, Which Would Override State Laws, Shows Contempt for Federalism appeared first on Reason.com.

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Kenneth Starr – most famous for his role as the independent counsel who drafted the report that led to the impeachment of President Bill Clinton – passed away yesterday. His controversial career includes two major ironies and historical what-ifs.

The first is that Starr’s tenure as independent counsel may have cost him a seat on the Supreme Court. Before his role in the Clinton impeachment, Starr (a former prominent federal judge and solicitor general of the US) was seen as a highly plausible GOP Supreme Court nominee. Indeed, his status as a widely respected pillar of the legal establishment was one of the reasons why he was selected to be independent counse in the first placel! The Starr Report made him a hero to social conservatives, but a villain to most Democrats and independents. Thus, he was no longer a plausible Supreme Court nominee. No Republican president was likely to spend the political capital needed to get Starr confirmed, so long as there were other, less controversial options that had comparable credentials. In some alternate universe, Bill Clinton manages to restrain his impulses or never gets caught, or Starr isn’t named independent counsel. And we get Supreme Court Justice Kenneth Starr.

The second irony is that the biggest beneficiary of Starr’s failure to get Bill Clinton removed from office was probably…. George W. Bush! Had the Senate convicted Clinton, Al Gore would have become president and served out the last two years of Clinton’s term. As an incumbent president, Gore would likely have gotten more of the credit for the good economy of the time than he did as Vice President. Also, incumbent presidents generally get some electoral boost just for being incumbents. Even a very small boost would have been enough to net Gore the extra few hundred votes needed to win Florida in 2000 and defeat Bush.

Incumbent status would likely have been worth at least a 1% bump or more, enabling Gore to win by thousands of votes. Gore would have won a clear, though still  close, victory, and few would ever have heard of the butterfly ballot or hanging and dimpled chads. In retrospect, Republicans should be happy that Starr failed, and Democrats should lament it!

On a slightly more serious note, I think the Starr Report was mostly right about Bill Clinton. He did have “sexual relations with that woman” and he did commit perjury about it (unless you adopt Clinton’s highly idiosyncratic and convenient redefinition of what counts as “sexual relations”). And I reject the then-common view that Starr was delving into these details of the sexual relations out of some kind of prurient interest or obsession with sex. The allegations against Clinton related to perjury about his relationship with then-White House intern Monica Lewinsky, and investigators had little choice but to go into the evidence about that subject.

At the same time, I believed then and still believe now that Clinton’s offenses weren’t grave enough to justify impeachment and removal (Donald Trump’s were far worse). But, in hindsight, I think it might have been better for the country if the Senate had convicted Clinton nonetheless, so as to set a precedent for accountability for presidential wrongdoing. Later events showed there is far more danger to underdeterrence of misconduct in high places than overdeterrence.

I had a number of ideological and jurisprudential differences with Starr, and his post-Clinton impeachment career certainly had its flaws (including a scandal-marred tenure as President of Baylor University). But he was likely more right than wrong about Bill Clinton. Ironically, Starr probably paid a higher price for investigating Clinton’s wrongdoing than Clinton himself paid for committing those acts in the first place.

The post Two Ironic Legacies of Ken Starr's Investigation of Bill Clinton appeared first on Reason.com.

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