Tag: in-the-news

For many men serving time for committing sex offenses in Texas, their prison term never really ends—even if they complete their sentence. That’s because they’re required to enter a live-in mental health facility before returning to society.

That facility—in Littlefield, Texas—is actually a former maximum security prison in the middle of a dirt field.

“It comes as a surprise,” says Mary Sue Molnar, founder of Texas Voices for Reason and Justice, a nonprofit dedicated to reforming the state’s sex offense laws and registry. “I often get letters from prison saying, ‘Oh my god, they’re going to civil commit me. What should I do?'”

Civil commitment is the practice of keeping people locked up past their release date, on the grounds that they are so dangerous they need therapy—years and years of it—before they can safely return to society.

Of course, Molnar notes, if the state really “wanted them to have treatment and counseling, they had plenty of time to get that done. In some cases, these men served 20 to 25 years” in an ordinary prison before being civilly committed.

This might seem just. But even as we feel great anger and sorrow on behalf of sex crime victims, we can also see that civil commitment is an extra prison sentence by another name.

Originally called clients or residents when the center opened in 2015, the men have been re-labeled “inmates” since Management and Training Corporation, a private prison company, took over in 2019.

“MTC does not run it in a therapeutic manner whatsoever,” says Mandi Harner, a former security officer at the facility who was fired for having a relationship with one of the residents. “They run it like a prison. I’m not going to tell you everyone in there is an angel. But there are some men who deserve treatment they’re not getting, and also some who did things as teenagers who don’t deserve to be there their whole lives.”

For their first year or two at the treatment facility, the men are required to wear electronic ankle monitors that they have to pay for, according to Harner. MTC declined a request for comment about this and other claims made by sources in this article, as did the Texas Civil Commitment Office (TCCO), the government agency that oversees the facility.

There is only one way to get out of Littlefield: The men must work their way up through four tiers of treatment before they are allowed to petition for their freedom.

The therapeutic techniques sound hodge-podge. The inmates “have to admit to all of their offenses and share it with the group,” said one of the founders of Texans Against Civil Commitment (TACC), a former Littlefield therapist who writes under the name ‘Murphy’ and who claims to have been fired for not seeing “eye to eye” with management. “And they have to keep a masturbation log so the therapist knows how often they’re masturbating and what they’re masturbating about. So she knows whether it’s healthy or whether it’s deviant.” The men must also record whether or not they climaxed. These logs are read aloud in group therapy.

The prison also employs polygraphs and penile plethysmography, measuring changes to the circumference or volume of the penis as the men watch and listen to different stimuli.

When an inmate moves up a tier, which can take a year, he can find himself demoted for many reasons, including very small infractions. One man who had been at Littlefield for years and made it through all four tiers was finally about to get his release hearing. But he did something wrong—rumor had it he swore at a guard—and was knocked back down to tier 1, where he would have to start anew, according to Murphy.

He went to his cell and hanged himself.

A former Littlefield guard I’ll call Frank—who says he quit but wants to stay in corrections and fears retaliation—said this wasn’t the only tragedy he had witnessed there. Another man, he said, castrated himself.

Frank estimates about 15 percent of the men are intellectually challenged, so they will never be able to successfully complete the therapy, because they don’t understand it.

The average age of inmates is 58, says Murphy. “But there are several 80-year-old men. There are several blind men, several that use walkers and wheelchairs.” That’s because almost no one ever manages to complete the therapy, according to a 2015 study.

During the height of the COVID-19 pandemic, when the men were locked two to a cell for 23 hours a day for several months, nine men out of about 300 died.

“We were to go with them to the hospital—two officers per resident—and you would just stare at them while on ventilators and get paid for it,” says Harner. “And when they knew they were dying, they weren’t even allowed to call their mom or dad because TCCO said you can’t.”

Until recently, inmates also had to pay a 33 percent tax on any packages they got, further isolating them from any support system they might have on the outside. For instance, if family members sent a pair of jeans and three boxes of Chips Ahoy, they would have to document what it cost and pay another 33 percent to the prison.

“One of our members during COVID-19 sent her son a package of masks and they were valued at $20,” says Molnar. “She had to pay 33 percent on top of that to send him those masks.”

That rule was just changed, most likely as a result of pressure from TACC. Now prisoners have to pay a 25 percent fee on any money sent to them from someone other than their spouse, according to Molnar.

Civil commitment rests on the mistaken belief that people who committed sex offenses are incorrigible—despite very low recidivism rates. What’s more, no one who serves time for a sex crime enters the community unsupervised after their prison term. They remain under strict supervision for years, sometimes for life, on probation, parole, and often the Sex Offense Registry.

Civil commitment is by no means confined to Texas, and Littlefield’s status as a privately operated facility is hardly the main issue. The problem is bad laws, as well as court decisions that have upheld them: More than 6,000 people are confined under civil commitment in 21 states. While the Fifth and 14th Amendments to the U.S. Constitution prohibit double jeopardy, the Supreme Court has ruled that it is acceptable to effectively imprison sex offenders a second time—not for the crimes they committed, but for future crimes they might commit.

Recently, about 40 men at a civil commitment facility in Minnesota went on a hunger strike to protest “an indefinite detention program” they consider “an unconstitutional death sentence.” Since Minnesota first began civil commitment in 1994, processing hundreds of men, it has granted only 14 full discharges and 45 provisional discharges.

Meanwhile, back in Texas, Littlefield has become a human “storage facility,” says Frank.

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Another CDC data flub distorts delta variant contagiousness. The Centers for Disease Control and Prevention (CDC) claimed the delta variant of COVID-19 is “as transmissible as” chickenpox. It’s not true.

Chickenpox, caused by the varicella-zoster virus, is one of the most contagious diseases we know of. “If one person has it, up to 90% of the people close to that person who are not immune will also become infected,” states the CDC website.

One person infected with chickenpox will infect an average of 10 people when everyone in a population is vulnerable to catching it. (This transmissibility number—referred to as R0—goes down when people have immunity to the disease.)

“The initial COVID-19 strain had an R0 between two and three,” computational biologist Karthik Gangavarapu told NPR. The delta variant has an R0 between six and seven. For chickenpox, the R0 is nine or 10.

How did the CDC conclude that these were equivalent?

For one, the leaked document underestimated the R0 for chickenpox and overestimated the R0 for the delta variant. “The R0 values for delta were preliminary and calculated from data taken from a rather small sample size,” a federal official told NPR. The value for the chickenpox (and other R0s in the slideshow) came from a graphic from The New York Times, which wasn’t completely accurate.

Apparently, the federal agency charged with disseminating COVID-19 data and setting public health policy is taking its cues from a newspaper infographic. Oh my.

Using more accurate data, the delta variant proves more transmissible than O.G. COVID but less transmissible than the virus behind the chickenpox.

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Defamation suits against Giuliani and others can go forward, says judge. U.S. District Judge Carl J. Nichols rejected a request from former President Donald Trump’s lawyers Rudy Giuliani and Sidney Powell and MyPillow CEO Mike Lindell to throw out defamation lawsuits against them from Dominion Voting Systems. The suits stem from claims made by Giuliani, Powell, and Lindell about Dominion machinery used in the 2020 election—machines that Giuliani et al. claimed had been rigged to throw the election to President Joe Biden.

From The Washington Post:

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8/12/1795: Chief Justice John Rutledge takes judicial oath.

 

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The Atlanta Police Department has fired Sgt. Marc Theodule after video of him kicking a handcuffed woman in the head went viral. The site that first released the video said Theodule kicked the woman after she spat on his boots, but the department did not say why he kicked the woman.

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What’s on your mind?

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Warnings that state and local governments faced a fiscal calamity were predictably plentiful when it became clear in early 2020 that COVID-19 would cause major social and economic disruptions. Predictable because it has become gospel that the solution to an economic downturn is to have the federal government suck money out of the private sector, redistribute it to state and local governments minus a cut for all three levels of bureaucracy, and then spend the remainder—often wastefully—according to political desires and special interest dreams.

There were a few of us who argued that federal bailouts for state and local governments were both unnecessary and unwarranted. As it turns out, state and local tax revenues hardly collapsed. In fact, state and local tax revenues are up after a brief drop early in the pandemic. While state and local revenue levels are lower than pre-pandemic projections, state and local politicians have come away with more of their constituents’ money to spend—hardly a calamitous outcome. According to the National Association of State Budget Officers, “state general fund spending is projected to grow 5.0 percent in fiscal 2022 compared to fiscal 2021 levels, with 39 states proposing spending increases according to governors’ budgets.”

But the handful of heretics were ignored, and the Trump and Biden administrations teamed with Congress to allocate almost $1 trillion in combined federal aid to state and local governments on pandemic relief grounds. So, in addition to state and local politicians getting to spend more of their own constituents’ money, they also get to spend more money from current and future taxpayers in the other 49 states—an even sweeter deal from their perspective because it’s all political gain and no political pain. Just ask embattled California Gov. Gavin Newsom, who is facing a recall election due to dissatisfaction with his handling of the pandemic and is using part of his state’s unexpected bounty to send out $600 checks to voters.

What’s extra galling about the federal government’s financial coddling of state politicians is that it rewarded governors for destroying their own economies and wreaking havoc on countless lives through haphazard lockdowns and other illogical pandemic policies. That nearly $1 trillion in federal aid to state and local governments doesn’t include funds for the millions of people having their businesses and careers upended by these policies.

The governors shuttered the businesses, but in the form of the Paycheck Protection Program, federal taxpayers were put on the hook for another $800 billion to help those businesses survive—not to mention hundreds of billions more for their unemployed workers. And one can only imagine the long-term taxpayer costs associated with peoples’ physical health needs being put on hold, the increase in drug and alcohol abuse, the widespread mental health damage, and the millions of children whose educational and social growth was stunted because of governors who cared more about self-serving teachers unions.

Yet state dependency on federal largesse was a growing problem well before the pandemic. As originally designed, the federal government was to have responsibility for areas that were national in scope (e.g., common defense) with everything else left to the states (e.g., education, policing). But whereas federal aid to the states in 1940 was only $13 billion in today’s dollars and “only” $239 billion in 2000, it’s projected to be over $1 trillion for 2021 and to continue rising as the Biden administration and congressional Democrats aim to have the federal government finance yet a greater share of overall government spending.

With the federal government accounting for roughly a third of total state spending prior to the pandemic, it’s fair to wonder what the future holds for the relationship between the federal government and the states. The Constitution gave the states sovereign powers and limited (or at least tried to limit) the propensity for federal domineering. Today, the federal government not only dominates the states, it often does so with the encouragement of state and local officials who are all too happy to cash Uncle Sam’s “free” checks. The strings attached are a mere inconvenience. As a result, we’re continuing to move even further down the road toward the states effectively becoming administrative units of the federal government.

That’s kind of a big deal, and yet it seems like nobody cares—perhaps because so few are even aware.

COPYRIGHT 2021 CREATORS.COM

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So Judge Carl J. Nichols (D.D.C.) just held today, in Nunes v. WP Company LLC:

Representative Devin Nunes alleges that the Washington Post and its reporter Ellen Nakashima (together, “the Post”) defamed him in an article published on November 9, 2020…. Although the question is a close one, Nunes’s allegations suffice to survive dismissal as to his defamation claim ….

Nunes is the Ranking Member of the House Permanent Select Committee on Intelligence. On November 9, 2020, the Post published an article about the selection of Michael Ellis as general counsel of the National Security Agency. Ellis had once served as Nunes’s chief of staff. The article focused principally on Ellis—including that his appointment was made “under pressure from the White House”—but it also discussed Nunes. In particular, the article stated that:

“In March 2017, [Ellis] gained publicity for his involvement in a questionable episode involving Nunes, who was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower.” [Emphasis added.]

The online version of the article (but not the print version) included another sentence that mentioned Nunes:

News reports stated that Ellis was among the White House officials who helped Nunes see the documents—reportedly late at night, earning the episode the nickname “the midnight run.” [Emphasis added.]

Nakashima is listed as the author of both versions of the article.

This was not the first time that the Post (and other news outlets) had reported on claims that the Obama administration had spied on Trump Tower or that intelligence gathering had been directed toward the Trump campaign. Those reports began three and a half years earlier. In March 2017, then-President Trump tweeted that President “Obama had [Trump’s] ‘wires tapped’ in Trump Tower.” Thereafter, various officials made public statements about whether there had been a wiretap on Trump Tower phones or other intelligence gathering directed toward the Trump campaign. For his part, Nunes stated publicly that there was never “a physical wiretap of Trump Tower” nor a “FISA warrant … to tap Trump Tower.” But Nunes also expressed his “concern[] that other surveillance activities were used against President Trump and his associates,” and that he thought it was “very possible” that Trump (or others at the White House) might have been swept up in surveillance targeting foreign nationals on U.S. soil.

As particularly relevant here, during this period, the Post published at least two articles emphasizing that a meaningful difference separated Trump’s and Nunes’s positions. In one article (published on March 15, 2017), the Post laid out “a brief list of people who have said that President Trump’s allegation that President Barack Obama ordered a wiretap of Trump Tower … is simply not true.” Nunes was the first person on the list; the Post identified him as “one of the few defenders of Trump’s claims,” but explained that he had “made clear … that there is zero evidence to suggest Trump Tower was wiretapped.” In a second article, published eleven days later, the Post described the situation as the “most notabl[e]” example of the “few cases” in which “Nunes [was] at odds with Trump.”

But the Post’s November 9, 2020 article did not draw this distinction, and eight days after its publication, Nunes notified the Post that he believed the article was false and defamatory. He also demanded that it remove the statements about Nunes making “baseless claims” and visiting the White House “late at night” and issue a retraction or correction. On December 8, the Post revised its online article to state that “[i]n March 2017, … Nunes … was given access at the White House to intelligence files that Nunes believed would buttress Trump’s baseless claims of the Obama administration spying on Trump Tower,” and that while “[t]he precise timing of the visit is unclear, … Nunes says it took place during daylight hours.” It also issued a correction at the top of the article, which stated that:

As originally published, this article inaccurately attributed claims that the Obama administration spied on Trump Tower to Rep. Devin Nunes (R-Calif.), rather than to President Trump. Nunes has stated that he did not believe there had been any wiretapping of Trump Tower. This article has also been updated to note that Nunes says an incident known as the “midnight run” took place during daylight hours.

And on December 8, 2020, the Post ran the following print retraction:

A Nov. 10 A-section article about the naming of Michael Ellis as general counsel of the National Security Agency inaccurately attributed claims that the Obama administration spied on Trump Tower to Rep. Devin Nunes (R- Calif.), rather than to President Trump. Nunes has said that he did not believe there had been any wiretapping of Trump Tower.

Nunes sued, and the Post moved to dismiss; but the court rejected the Post’s motion as to the defamation claim:

The Post first argues that Nunes has failed to allege that the article is materially false. A materially false statement has “a different effect on the mind of the reader from that which the pleaded truth would have produced.” “Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified.”

Nunes alleges that the article is false because he has never claimed that the Obama administration spied on Trump Tower. The Post doesn’t really contend that Nunes has ever made that claim; instead, it argues that the article is substantially true because a claim about the Obama administration “spying on Trump Tower” is not materially different from Nunes’s public claims about the Obama administration “spying on the Trump campaign” and conducting “surveillance activities” against President Trump and his associates.

This argument might be persuasive if the article stated merely that Nunes had made claims about spying on Trump Tower; without more, a reader might think there is no meaningful difference between “spying on Trump Tower” and “surveillance activities … used against President Trump and his associates.” But the article also labeled Nunes’s claims as “baseless,” and the Court must consider the article as a whole.

By November 2020, there was evidence to support (at least to a certain extent) Nunes’s claims about intelligence activities that touched on the Trump campaign; by that time, an Inspector General report had concluded there had been an investigation “to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia,” and that the investigation targeted certain U.S. persons affiliated with the campaign.

What remained baseless in November 2020 (or at least what Nunes alleges remained baseless) was the claim President Trump asserted in his March 2017 tweet: that the Obama administration had wiretapped Trump Tower. But Nunes alleges he never made such a claim. This is an important difference: A reasonable juror could conclude that there is a material difference between stating that Nunes had made a claim supported by evidence (that the Obama administration had undertaken intelligence activities related to individuals involved in the Trump campaign) and stating that Nunes had made a baseless claim (that the Obama administration had wiretapped Trump Tower). A reasonable juror could therefore conclude that the article was materially false because it stated that Nunes had made such a baseless claim (when he had not)…

[E]ven if the article was materially false, it must also have defamatory meaning; that is, it must rise to the level of making Nunes “appear odious, infamous, or ridiculous,” or “tend[] to injure [him] in his trade, profession or community standing, or lower him in the estimation of the community.” … The Post argues that the suggestion that Nunes “viewed documents that he believed would provide support for claims of spying made by the President” does not make him “appear odious, infamous, or ridiculous” nor suggest that he is unfit for his position as a congressman. As the Post puts it, “it was not defamatory to say that the Chairman of the House Intelligence Committee, ‘a staunch supporter of President Trump,’ viewed documents that he believed could lend credence to the President’s claims.”

But again, that is not all that the article says. Taken as a whole, the article says (or at least a reasonable juror could understand the article to say) that Nunes had made baseless claims about spying on Trump Tower and then visited the White House to inspect documents that might support those baseless claims. And a reasonable juror could conclude that an elected official is ridiculous or unfit for office if he searched for evidence to support baseless claims. Indeed, the online article stated that Nunes had searched for this evidence “late at night,” suggesting something untoward about the outing. Although the Post argues that such timing suggests merely that Nunes “devoted significant time and energy to his duties,” a reasonable juror could conclude that the article carried a different meaning.

The Post further urges the Court to discount the relevance of its use of the term “baseless” for purposes of the defamatory meaning analysis because, without that word, the article would be “otherwise accurate”—presumably on the theory that a single word cannot transform an “otherwise accurate” article into one with defamatory meaning. But that argument proves too much; the Court is required to consider the article as a whole, and the insertion of a single word can substantially change the meaning of a statement. (Consider the difference between a “claim” and a “false claim,” or between “food” and “rotten food.”) Even if it would not have been defamatory to say that Nunes went to the White House in search of evidence for his own claims (in part because he did end up uncovering some evidence for the claims he was making), “baseless” is the type of word that transforms the “gist” of the article by insinuating that Nunes is the type of official who would spend his time searching for evidence to support claims with no foundation in fact.

The court also concluded that Nunes had alleged enough evidence of “actual malice” (i.e., knowledge of falsehood or likely falsehood) on the Post’s part:

Nunes alleges that the Post acted with actual malice because it “made up facts out of whole cloth,” “abandoned all journalistic standards and integrity,” and published the article out of “institutional hostility, hatred, … bias, spite and ill-will” toward Nunes, and as “revenge” for other instances in which he has feuded with the Post. He also alleges that the Post improperly relied on unreliable and biased sources despite Nunes’s denial that he had participated in any “midnight run,” and that the Post’s actual malice is evinced by the fact that in March 2017 it had correctly reported Nunes’s repudiation of President Trump’s unfounded claims, but then changed course in November 2020.

Most of Nunes’s allegations, without more, do not demonstrate actual malice. As an initial matter, Nunes’s bald assertions that the Post knew that its statements were false are no more than “labels and conclusions” referencing the relevant legal standard. And his conclusory references to the Post’s purported animus and lack of standards fare little better; actual malice requires more. Nunes’s allegations regarding his denials are similarly unavailing: “A publisher need not accept ‘denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.'”

But Nunes pleads more than just legal conclusions. In March 2017 the Post itself had reported that Nunes had denied President Trump’s claims about a wiretap at Trump Tower. In the article at issue here, the Post reported that Nunes made that baseless claim himself. A newspaper’s own prior (and correct) reporting that is inconsistent with its later (and incorrect) reporting could certainly give the paper reason to seriously doubt the truth of its later publication—just as a source’s pre-publication recantation may be evidence that a publisher had reason to doubt the source’s original claims. {Because Nakashima was a contributor to at least one of the articles distinguishing Nunes’s position on the wiretap claims from the former President’s stance, it is appropriate to consider the prior reporting with respect to both Defendants’ subjective states of mind.}

The Post urges the Court to conclude that its November 9, 2020 article merely misattributed the baseless claims to Nunes (rather than to President Trump) and was therefore a “simple misstatement of the Post’s prior reporting.” That may very well be true. But at this stage in the proceedings, where the Court is limited to the allegations in the Amended Complaint and the reasonable inferences that can be drawn from them, the Court cannot determine what in fact led to the incorrect statements in the article. The same can be said for the Post’s updates and retraction; although a defendant’s correction “is significant and tends to negate any inference of actual malice,” even a full retraction, without more, does not foreclose the possibility that a defendant acted with actual malice. And although the Post’s retraction did note that “Nunes has stated that he did not believe there had been any wiretapping of Trump Tower,” it also added that “Nunes believed [intelligence files] would buttress Trump’s baseless claims“—which a reasonable juror could conclude meant that Nunes did believe the baseless claims. Later in this case, Nunes will have to establish by clear and convincing evidence that, even in light of the corrections the Post did issue, it published its statements with actual malice.

(Nunes had also sued for negligence, but the court granted the Post’s motion to dismiss as to that claim, because the First Amendment requires a showing of more than negligence in such lawsuits brought by public officials.)

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This week two Texas judges issued temporary restraining orders that allow public schools in Bexar and Dallas counties to require that staff and students wear face masks as a safeguard against COVID-19. The legal issue is whether Texas Gov. Greg Abbott’s executive order banning such mandates fits within his authority under the Texas Disaster Act of 1975. But the wisdom of requiring masks in schools depends on whether the public health benefits of that precaution outweigh the burdens it imposes on students and employees. On that point, the evidence is not nearly as clear as mandate enthusiasts imply.

Two important facts should inform decisions about face masks in schools.

First, COVID-19 infections among children and teenagers are rarely life-threatening. According to the “current best estimate” from the Centers for Disease Control and Prevention (CDC), the infection fatality rate (IFR) for people younger than 18 is 0.002 percent. By contrast, the CDC estimates that the IFR for COVID-19 among people 65 or older is 9 percent, 4,500 times as high. The estimated IFRs for other age groups fall between those two extremes: 0.05 percent for 18-to-49-year-olds and 0.6 percent for 50-to-64-year-olds.

Second, COVID-19 vaccines are currently available to all Americans 12 or older, and the vaccination rate is especially high among older Americans, which helps explain why the recent surge in cases has not been accompanied by a commensurate increase in deaths. For teachers and other staff members who are concerned about catching COVID-19 in school, vaccination sharply reduces the risk of infection and is even more effective at preventing severe cases. The same goes for students 12 or older.

Keeping those facts in mind, what is the evidence that face masks play an important role in preventing school-related COVID-19 outbreaks? In a New York Times opinion piece published yesterday, Duke University pediatrician Kanecia Zimmerman and Danny Benjamin Jr., a pediatric infectious disease specialist at Duke Health, say their own research shows that “universal masking”—requiring all students and employees to wear masks, regardless of their vaccination status—is “one of the most effective and efficient strategies for preventing SARS-CoV-2 transmission in schools.” The headline emphasizes that the authors’ conclusions are based on what they found in North Carolina: “We Studied One Million Students. This Is What We Learned About Masking.”

Here is how Zimmerman and Benjamin describe the results of their study, which was based on data from March through June 2021:

During that time, more than 7,000 children and adults acquired the coronavirus and attended school while infectious. Because of close contact with those cases, more than 40,000 people required quarantine. Through contact tracing and testing, however, we found only 363 additional children and adults acquired the coronavirus. We believe this low rate of transmission occurred because of the mask-on-mask school environment: Both the infected person and the close contact wore masks.

That belief is not actually supported by Zimmerman and Benjamin’s study. Since all the North Carolina public schools they studied had universal masking, there was no control group of schools without that requirement. It is therefore impossible to say whether the low rate of secondary transmission can be attributed to the mask policy. “Because North Carolina had a mask mandate for all K-12 schools,” Zimmerman and Benjamin concede, “we could not compare masked schools to unmasked schools.”

In lieu of a control group, Zimmerman and Benjamin cite a few COVID-19 outbreaks that they attribute to a lack of universal masking. Here are the cautionary examples they mention:

• This month in North Carolina, Mooresville Graded Schools and the Union Academy Charter School decided to require masks after “both experienced outbreaks during the first days of the new school year,” the local ABC affiliate reports. An elementary school in the Mooresville system identified “nine positive cases,” while the charter school saw “at least 14 confirmed COVID-19 cases.”

• In Illinois last month, Springfield Public Schools began requiring masks during a summer session, citing “an increase in COVID-19 positive cases among SPS students and staff.”

• In May 2020, an Israeli public school had an outbreak that involved “153 students and 25 staff members” who “were confirmed as COVID-19-positive.” The outbreak was tied to an “extreme heatwave,” during which a face mask requirement was suspended, windows were closed, and “air-conditioning functioned continuously in all classes.” The authors of the report on the Israeli outbreak also note that “distancing among students and between students and teachers was not possible,” because the classrooms were “crowded.” The CDC cites “classroom crowding” and “poor ventilation” as factors in the outbreak.

These are all examples of outbreaks (or “an increase in COVID-19 positive cases”) that occurred when masking was optional. But they do not show that a lack of masking was the main reason for virus transmission. And the Israeli outbreak, which is commonly cited by mask-mandate advocates, is striking because it was unusual, even though other Israeli schools also did not require masks during the three-day heat wave.

Meanwhile, Zimmerman and Benjamin overlook examples of school systems that did not require masks but nevertheless saw minimal COVID-19 transmission.

In Florida, where many school districts did not require masks, the CDC found that less than 1 percent of students were infected in schools during the first semester after they reopened in August 2020. The CDC did report that school districts without mask mandates had a higher school-related infection rate: 1,667 vs. 1,171 per 100,000 students. But the study notes that smaller districts were less likely to require masks, and they also “had a higher proportion of students attending in-person instruction,” which likewise was “positively correlated with the student case rate.” And even in districts without mandates, just 1.7 percent of students were infected at school.

When English schools reopened in August 2020, they did not require face masks. Public Health England identified 969 outbreaks, or about one for every 25 schools. The outbreaks affected 2 percent of primary schools and 10 percent of secondary schools. In response to a geographically representative survey, 100 primary schools and 79 secondary schools reported 2,314 cases, or an average of about 13 per school. In primary schools that experienced outbreaks, 0.84 percent of students were infected; the rate for secondary schools was 1.2 percent. Teachers were more likely to be infected and more likely to transmit the virus than students.

Both of these studies were conducted at a time when vaccines were not available to staff or students. Now that 70 percent of American adults have been at least partly vaccinated and vaccines are available to students 12 or older, we can expect even lower rates of school-related infection.

“Although outbreaks in schools can occur,” the CDC says, “multiple studies have shown that transmission within school settings is typically lower than—or at least similar to—levels of community transmission, when prevention strategies are in place in schools.” Regarding mask requirements specifically, it says “most studies that have shown success in limiting transmission in schools have [involved schools that] required that staff only or staff and students wear masks as one of the school’s prevention strategies.”

The CDC, which is now urging “indoor masking for all individuals age 2 years and older” in schools and child care facilities, cites six studies to support its conclusion that mask mandates are crucial: a preliminary report on Zimmerman and Benjamin’s North Carolina research; a study concluding that reopening schools in Italy, where students were required to wear masks, did not appear to drive the second COVID-19 wave in that country; a study of Chicago schools, which also required masks, finding “a lower attack rate for students and staff participating in in-person learning than for the community overall”; a CDC study that reported “limited secondary transmission” of COVID-19 in Rhode Island child care programs that required adults to wear masks; a CDC study that found 6 percent of child care facilities in Washington, D.C., with a similar requirement experienced an outbreak; and a CDC report of “minimal” COVID-19 transmission at a New Jersey school “after implementation of a comprehensive mitigation strategy” that included “universal masking.”

In their Times piece, Zimmerman and Benjamin cite CDC data from Utah, Missouri, and Wisconsin. The Utah study found that “mask adherence was high” and that “COVID-19 incidence among students and staff members was lower than in the county overall.” According to the Missouri study, COVID-19 transmission was “much lower” in schools than in the general community. The schools had adopted precautions that included “mandating use of face masks, physical distancing in classrooms, increasing ventilation with outdoor air, identification of close contacts, and following CDC isolation and quarantine guidance.” In Wisconsin, “reported student mask-wearing was high,” and “transmission risk within schools appeared low.”

These studies show that mask mandates are consistent with low rates of COVID-19 transmission. But contrary to what the CDC implies, they do not show that mask mandates are necessary to keep infection rates low, which would require comparing outcomes in otherwise similar schools with and without mandates.

In December, based on data from Georgia, the CDC reported that “COVID-19 incidence was 37% lower in schools that required teachers and staff members to use masks,” which was similar to the difference associated with “improved ventilation.” But while the incidence of infection was 21 percent lower in schools that also required students to wear masks, that difference was not statistically significant.

Zimmerman and Benjamin say it is “now clear” that “universal masking is linked to lower spread” in schools; that “schools that do not require masks will have more coronavirus transmission”; that “if we send children to school without masks, we increase their risk of acquiring Covid-19”; that “masking helps prevent spread among unvaccinated people in schools”; that “universal masking is a close second” to vaccination as a way of preventing school outbreaks; and that “universal masking in schools can save lives.” But the evidence they cite to support these assertions is inconclusive at best.

Assuming that universal masking in schools does make a difference (which it might!), it is by no means clear that the benefits outweigh the costs. The data from Florida and England indicate that COVID-19 transmission in schools was a minor problem even without mask mandates and even before vaccination was possible. Given the low risks that children face from COVID-19, the low infection rates even in schools that don’t require masks, and the fact that vaccination is readily available to adults and teenagers, the benefits of forcing kids to cover their faces all day, whether or not they are vaccinated, are likely to be small.

The costs, meanwhile, are more substantial than mandate supporters typically acknowledge. The inconvenience and discomfort caused by mask requirements aggravate the unpleasantness of environments that were stressful, boring, and restrictive long before anyone had heard of COVID-19. Masks interfere with  communication, learning, and social interaction. And they unfairly burden children with the responsibility of preventing infections that primarily threaten adults, who can better protect themselves by getting vaccinated. To justify those costs would require more evidence than mandate advocates have been able to muster.

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From the ATF, released July 26 but just posted on Westlaw, an Open Letter to All Missouri Federal Firearms Licensees (there’s a similar one as to Texas, with regards to silencers/suppressors):

This letter provides guidance on your obligations as a federal firearms licensee. The guidance is intended to assist you in meeting these obligations. This letter does not impose any new obligations. It merely confirms the continuing applicability of existing federal obligations.

Missouri House Bill Number 85, Second Amendment Preservation Act (“the Act” or “SAPA”), signed into law by Governor Parson on June 12, 2021, has generated questions from industry members and firearm owners as to how this Missouri state law may affect them while engaged in a firearms business activity or seeking to acquire a firearm. Section 1.420 of the Act states that “federal acts, laws, executive orders, administrative orders, rules, and regulations” falling into five categories of regulations relating to firearms “”shall be considered infringements on the people’s right to keep and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri.” SAPA § 1.420. The Act further provides, among other things, that any such purported infringements “shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.” Id. at § 1.430. The categories of federal laws and regulations that the Act defines as “infringements” are:

(1) “[a]ny tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services and that might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens,”

(2) “[a]ny registration or tracking of firearms, firearm accessories, and ammunition,”

(3) “[a]ny registration or tracking of ownership of firearms, firearm accessories, and ammunition,”

(4) “[a]ny act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens” (with ” “law-abiding citizens” defined as those who may possess firearms under Missouri law), and

(5) “[a]ny act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.”

Id. at § 1.420.

As the Justice Department advised Missouri’s Governor and Attorney General in a June 16, 2021 letter, because the Act “conflicts with federal firearms laws and regulations, federal law supersedes” the Act. Accordingly, all provisions of federal laws–including the Gun Control Act (18 U.S.C. § 921-931), the National Firearms Act (26 U.S.C. § 5801-5872), and their corresponding regulations–continue to apply and remain in full effect in Missouri.

In particular, federal law requires a license to engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, even if the firearms or ammunition remains within the same state. All firearms manufactured by a licensee must be properly marked so they can be traced by law enforcement officers if later used in a crime. Additionally, each licensee must record the type, model, caliber or gauge, and serial number of each firearm manufactured, imported, or otherwise acquired, and the date such manufacture, importation, or other acquisition was made; subsequent transfers of these firearms must be recorded. In most instances, a Firearms Transaction Record (ATF Form 4473) and a National Instant Criminal Background Check System background check must be completed prior to transferring firearms to an unlicensed person. See 27 CFR §§ 478.41, 478.92, 478.102, 478.124, 478.125. All federal restrictions on the receipt and possession of firearms also continue to apply, regardless of whether an individual is a “law-abiding citizen” as defined by the Missouri law. These requirements, as well as all provisions of federal laws regarding the possession, acquisition, and transfer of firearms or ammunition (including the Gun Control Act (18 U.S.C. §§ 921-931), the National Firearms Act (26 U.S.C. §§ 5801-5872), and their corresponding regulations) remain in full force and effect.

If you have any questions regarding the federal firearms laws and regulations, please contact your local ATF office. ATF works closely with the firearms industry and appreciates the important role the industry plays in combating violent crime.

Seems like good advice; perhaps some of the relevant federal laws might be struck down (though I wouldn’t hold my breath), but until they are, FFLs would be wise to follow them.

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The University of Iowa has declared itself to be a largely mask-free campus for the Fall of 2021. The state legislature banned mask mandates by cities, counties and public schools. State universities were not covered by the legislation. Nonetheless, the board of regents for the state university system adopted a policy that masks can be required only in very limited circumstances on state university campuses. In the face of faculty protests, the University of Iowa provost has followed that up with more detail about the policy and how it is to be implemented. Included in that detail is some very interesting language about what faculty are allowed to say about the mask mandate.

Although the regents said that masks are “strongly encouraged” but not “required,” the guideline from the provost indicates that professors may not “ask” or “require” their students to wear masks. They may not ask students about their vaccination status so that “everyone feels respected.” They may not ask other employees of the University of Iowa about their vaccination status. All that’s rather dubious, but even more intriguing is the directive regarding speech in the classroom.

Q: May I make statements in the classroom regarding mask usage or vaccinations?

A: You may only make statements regarding mask usage or vaccinations in the context of course material discussions of health-related issues.  Outside that context, if you are asked, you may share your personal choice regarding the decision to wear a mask or be vaccinated without making a statement regarding the value of the choice or any value judgments about decisions not to be vaccinated.  Remember that there is a power differential between you and your students, and they may perceive you asking them to wear a mask or if they have been vaccinated as a requirement that they do so.

Some have suggested that this directive runs afoul of the board of regents policy on free speech. I doubt it, but it certainly runs afoul of the spirit of that policy. The specifics of the policy relate to student speech and speech by campus speakers and does not focus on speech by members of the faculty or classroom speech. But notably it does include some “guiding principles.”

Guiding Principles

1. The primary function of the Regent universities is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate. To fulfill this function, the universities must strive to ensure the fullest degree of intellectual freedom and free expression allowed under the First Amendment to the Constitution of the United States.

2. It is not the proper role of the Regent universities to shield individuals from speech protected by the First Amendment to the Constitution of the United States, which may include ideas and opinions the individual finds unwelcome, disagreeable, or even offensive.

3. It is the proper role of the Regent universities to encourage diversity of thoughts, ideas, and opinions and to encourage, within the bounds of the First Amendment to the Constitution of the United States, the peaceful, respectful, and safe exercise of First Amendment rights.

4. Students, faculty, and staff have the freedom to discuss any problem that presents itself, assemble, and engage in spontaneous expressive activity on campus, within the bounds of established principles of the First Amendment to the Constitution of the United States, and subject to reasonable time, place, and manner restrictions that are consistent with established First Amendment principles.

The guiding principles emphasize the importance of fostering a culture of robust debate on campus, diversity of views, and the ability to express unpopular ideas. The provost’s emphasis on avoiding any speech that might make the unvaccinated uncomfortable is certainly in some tension with those principles.

More important, I would think, is the university’s policies on academic freedom which would govern instructor speech in the classroom. The University of Iowa has committed itself to the AAUP principles of academic freedom, which include the freedom of professors to “discuss subjects—including controversial issues that are relevant to the subject— in their classrooms.” Moreover, the “Operations Manual” for the University of Iowa includes an elaborate statement of academic freedom principles that “encourages faculty members to express new ideas and divergent viewpoints and to make inquiries unbounded by present norms” and that it “is essential that faculty members in their teaching and research feel free to express new ideas and divergent viewpoints.”

But freedom comes with responsibility, and academic freedom in the classroom likewise has limits. The AAUP has recognized that professors should “avoid persistently intruding material which has no relation to their subject.” The University of Iowa specifies the professors “must not intentionally interject into classes material or personal views that have no pedagogical relationship to the subject matter of the course.”

None of that limits what faculty might say outside the classroom either on campus (“intramural” speech) or off campus (“extramural” speech). Outside the classroom, faculty are recognized to have extensive freedom to communicate their personal view to others. The provost’s stern admonishment to faculty not to ask anyone about their vaccination status is at odds with freedom of intramural speech. Your colleague has the right not to tell you, but you have the right to ask. And, of course, faculty are free to make use of campus spaces to advocate for their preferred mask policies (and the provost does not suggest otherwise).

Inside the classroom with a captive audience and specific professional responsibilities, the scope of the freedom to speak out on controversial topics is more constrained. The provost’s directive, however, probably restricts too much. It is not for the provost to determine whether a discussion of masking policies is relevant to the subject of the course nor to limit such discussions to a small subset of classes on “health-related issues.” It is also not for the provost to instruct faculty that they may not make any “value judgments” about vaccinations in response to student questions in class. It is hard to argue that a conversation about masks and university policies regarding masks in the classroom does not have a “pedagogical relationship” to the class, just as professors might express “personal views” about issues ranging from class attendance to examination policies, particularly if such a conversation is initiated by a student. Even if it is true that the board of regents policy prohibits professors from requiring students to wear masks in their class, it cuts too far to bar professors from saying anything normative about masks or vaccines for fear that students might “perceive” that the professor is asking the to don a mask.

It is also worth noting the implications of the 6th circuit’s recent Meriwether opinion on classroom speech. The University of Iowa is not within the 6th circuit, but the opinion should presumably be informative to the provost’s thinking about what the “fullest degree of intellectual freedom and free expression allowed under the First Amendment” requires. Meriwether involved the question of whether a university could require a professor to use a student’s preferred pronoun in class. That court emphasized when a professor speaks on “a matter of public concern” in the classroom, then that speech is constitutionally protected. That determination does not end the matter, since it is possible for the university’s interest “in promoting the efficiency of the public services it performs through its employees” might override the professor’s constitutional interest, but that possibility seems very unlikely in this context. The AAUP might say that professors should not intentionally interject controversial matters unrelated to the course into their classroom, but Meriwether says professors are protected by the First Amendment if they do so and those controversial matters are matters of public concern. A federal court might not be very sympathetic to the provost’s directive on professorial classroom speech on masking.

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