Volokh v. N.Y. A.G.: “New York Can’t Target Protected Online Speech by Calling It ‘Hateful Conduct'”

From the Foundation for Individual Rights and Expression:

Today, the Foundation for Individual Rights and Expression sued New York Attorney General Letitia James, challenging a new state law that forces websites and apps to address online speech that someone, somewhere finds humiliating or vilifying.

The law is titled “Social media networks; hateful conduct prohibited,” but it actually targets speech the state doesn’t like—even if that speech is fully protected by the First Amendment.

“New York politicians are slapping a speech-police badge on my chest because I run a blog,” said plaintiff Eugene Volokh, who co-founded The Volokh Conspiracy legal blog in 2002. “I started the blog to share interesting and important legal stories, not to police readers’ speech at the government’s behest.”

The law forces internet platforms of all stripes to publish a policy explaining how they will respond to online expression that could “vilify, humiliate, or incite violence” based on a protected class, like religion, gender, or race. The law also requires the platforms to create a way for visitors to complain about “hateful” content or comments, and mandates that they answer complaints with a direct response. Refusal to comply could mean investigations from the attorney general’s office, subpoenas, and daily fines of $1,000 per violation.

New York’s law doesn’t define “vilify,” “humiliate,” or “incite.” Yet, it targets speech that could simply be perceived by someone, somewhere, at some point in time, to vilify or humiliate, rendering the law’s scope entirely subjective. (The First Amendment does not protect inciting imminent violence, but New York’s law offers no indication, as the First Amendment requires, that it applies only to speech directed to and likely to produce imminent lawless action.)

What expression could the new law reach? Plenty of speech fully protected by the First Amendment, including but not at all limited to:

  • An atheist’s post “vilifying” people of faith by criticizing religion.
  • A posted video of John Oliver “humiliating” the British people by criticizing the monarchy.
  • A comedian’s blog entry “vilifying” men by mocking gender stereotypes.
  • A post about Kathy Griffin “humiliating” Christians by shouting “Suck it, Jesus, this award is my God now!” at an awards show.
  • Your comment on almost any website that could be considered by someone, somewhere, at some point in time, as “humiliating” or “vilifying” a group based on protected class status like religion, gender, or race.

“The state of New York can’t turn bloggers into Big Brother, but it’s trying to do just that,” said FIRE attorney Daniel Ortner. “The government can’t burden online expression protected by the Constitution, whether it’s doing it in the name of combating hate or any other sentiment. Imagine a similar law requiring sites to publish a reporting policy for speech the state considers un-American—that would be just as unconstitutional.”

Volokh, a constitutional law professor and First Amendment expert, is joined in the lawsuit by online platforms Rumble and Locals, which are, respectively, a video platform similar to YouTube, and a community-building platform that allows creators to connect directly with their audience.

Bloggers, commenters, websites, and apps around the country are ensnared by the New York law due to its broad definition of “social media networks” as for-profit “service providers” that “enable users to share any content.” This vague wording means that the law can impact virtually any revenue-generating website that allows comments or posts and is accessible to New Yorkers—but no government entity can legally compel blogs or other internet platforms to adopt its broad definition of “hateful conduct.”

A recent report issued by Attorney General James’ office shows this law may be just the start of Empire State lawmaker’s attempt to silence protected speech online. Released in the wake of May’s tragic mass shooting by a white supremacist at a Buffalo supermarket, the report calls for further regulation of online speech—recommendations that, if adopted, would also violate the First Amendment.

“What happened in Buffalo broke the nation’s heart, and the impulse to take action is understandable. But violating expressive rights online won’t make us safer,” said FIRE senior attorney Jay Diaz. “In the name of combating ‘hateful conduct,’ New York’s new law reaches a vast amount of everyday commentary—jokes, political debates, random commentary, you name it. That’s a problem. The First Amendment protects all of us, and this new law doesn’t.” …

Many thanks to FIRE—and in particular Darpana Sheth, Daniel Ortner, and Jay Diaz—as well as local counsel Barry Covert (of Lipsitz Green Scime Cambria LLP) for representing me in this case.

The post <i>Volokh v. N.Y. A.G.</i>: "New York Can't Target Protected Online Speech by Calling It 'Hateful Conduct'" appeared first on Reason.com.

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Some Arizona Republicans Are Refusing To Certify an Election. Is Congress Paying Attention?


Election denier protest

Republican officials in one Arizona county are trying to defy state law by refusing to certify the results of last month’s election.

More than 2,500 miles away, Congress should take notice.

What’s happening right now in Cochise County, a deep red corner of Arizona, is highly unlikely to affect the outcome of any races in last month’s midterms—but it ought to serve as a warning in advance of the 2024 presidential election, when the stakes could be higher. The two Republican members of the three-person county board charged with certifying election results have voted not to do so until an investigation into voting machines used in the county can be completed. But the Arizona Department of State has already provided documentation showing that the machines were legitimate, according to Reuters.

Under Arizona law, counties had until November 28 to certify election results. The state will certify those results on December 5. Arizona Secretary of State Katie Hobbs, a Democrat who is also the state’s governor-elect, has filed a lawsuit seeking an order to force the county to certify its vote totals.

The fact that Donald Trump wasn’t on the ballot in Arizona—or anywhere else this year—suggests that while he may have mainstreamed election denialism, it has now metastasized into a broader part of the conservative movement. Defeated Arizona gubernatorial candidate Kari Lake has stoked flames—in a video posted online this week, she decried the “most dishonest elections in the history of Arizona” and encouraged Republican officials not to certify results—and some national conservative media personalities including Charlie Kirk have joined the chorus.

Indeed, a recent Morning Consult poll found that just 52 percent of Republicans believed the midterm elections were “definitely” or “probably” free and fair—and that’s the highest percentage the group has found in recent surveys about registered Republicans’ opinions of elections. Election denialism may not be a dominant position within the GOP, but it is clearly a sizable faction—and a large enough one to cause chaos in 2024 or beyond.

Accordingly, federal lawmakers ought not to assume that this fever will break merely because Trump is defeated or if his political stardom fades.

That’s all the more reason for Congress to move swiftly to pass the Electoral Count Reform and Presidential Transition Improvement Act of 2022, which is easily the most important and straightforward way to prevent these localized Republican shenanigans from affecting the 2024 presidential election. The bill, which has bipartisan support, would address the procedural mechanisms that Trump and his allies sought to exploit to overturn the 2020 election and would head off future attempts by state lawmakers and governors to refuse to certify the results of a presidential election. The bill would set a hard deadline (six days before the Electoral College meets) for states to certify their results. If state or local officials try to do what Cochise County Republicans are currently doing, the bill would allow for the creation of an expedited review process to be conducted by a panel of three federal judges, who would then certify results to the Electoral College and Congress. And Congress would be obligated to accept those results.

In short, the bill clarifies several grey areas that exist in the current vote-counting process and would provide judges a clearer path for adjudicating the sort of disputes that might arise in the wake of a closely contested election. No one wants to see judges deciding the outcome of a presidential race, so the Electoral Count Reform Act not only limits what state and local officials can do but also provides less wiggle room for federal judges to interpret election law after the fact.

Additionally, it would clarify that the vice president does not have the power to unilaterally reject the Electoral College results—an important clarification, since Trump pressured then-Vice President Mike Pence to do exactly that in January 2021.

The bill is “the first bipartisan acknowledgment that election subversion is a real threat,” writes Michael Waldman, president and CEO of the Brennan Center, a pro-democracy think tank based at New York University. “Let’s heed what Ronald Reagan told us in 1981 about the peaceful transfer of power: ‘Freedom is a fragile thing, and it’s never more than one generation away from extinction.'”

This is the ultimate low-hanging fruit for lawmakers concerned about securing the future of American democracy. But Congress has been slow to act. With Republicans set to take over the majority in the House of Representatives in January, the post-midterm lame-duck session might be the best chance for the bill to pass before 2024.

Sen. Joe Manchin (D–W.Va.), a key swing vote in the Senate and supporter of the Electoral Count Reform Act, said this week that the bill was “ready” to go. “We all know it needs to be done now while we have the votes and support to do it,” he said, according to Roll Call.

Sen. Susan Collins (R–Maine) echoed that sentiment, telling Roll Call that it was “imperative” that Congress pass the reforms “before we get into the next presidential election cycle.”

This is not just the usual congressional bluster that accompanies the attempted passage of every bill. What’s happening in Arizona right now should be viewed as a trial balloon for how Republican officials might try to screw with vote counting in the next election.

There’s no law that will prevent that sort of thing from happening—democracy depends, ultimately, on people in positions of power being willing to do the right thing even when it might not benefit their “team”—but to miss a chance to safeguard the presidential election from such obvious subterfuge would be an inexcusable mistake.

The post Some Arizona Republicans Are Refusing To Certify an Election. Is Congress Paying Attention? appeared first on Reason.com.

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Farewell to the Mother of Modern Feminist Cartooning


Farewell to Aline Kominsky-Crumb, the mother of modern feminist cartooning.

Aline Kominsky-Crumb, a great and trailblazing cartoonist, died this week in her home in France at age 74 from pancreatic cancer.

Kominsky-Crumb grew up in Long Island, and the agonies and complications of her parents’ and family’s “sleaziness, out of control materialism, upward striving, tension, financial problems, selfishness and misery,” as she wrote in her 2007 memoir Need More Love, created a general “post-war jerk family atmosphere” that informed many of her autobiographical comix.

After years of art education in New York and Arizona, she relocated in the early 1970s to San Francisco and began publishing her cartoons in underground comix, influenced by the pioneering autobiographical work of Justin Green. Her 1972 “Goldie: A Neurotic Woman” was the first story in the first issue of one of the first, and longest-lasting, comix periodicals edited and drawn entirely by women, Wimmen’s Comix.

Her story was a brutally honest self-assessment of her relations with family, men, and her own conflicted self-image, with the bare beginnings of her unique lumpy, sweaty, hairy style. Her figuration often seemed like cut-out dolls more than realistic or even conventionally cartoonish humans, influenced more by German expressionists such as George Grosz than any forebear in the world of American comic books, over- or underground. And she was the first to bring this sort of psychologically acute autobiographical approach to comics of any sort.

Underground comix was a realm of small-business entrepreneurialism in the 1970s, very rooted in personal relationships, a strange corner of publishing driven more by the interests of artists than editors or publishers, and distributed through a subterranean, often bordering on criminal, system connected with drug paraphernalia shops (the work itself could be and often was condemned by local officials as illegally obscene). It was thus the perfect, indeed only, space for cartooning voices as conventionally off-putting as Kominsky-Crumb’s to get published and distributed nationally, if not winning huge numbers of fans at first. She broke with the Wimmen’s Comix collective over the individuality of her feminism. She felt that her “sisters” were overly censorious about how she dressed and comported herself.

In a 2021 interview for my book on the history and creators of underground comix, Dirty Pictures, Kominsky-Crumb told me she felt pushed out by “feminist militancy that taken to its most extreme destroys the possibility of enjoying the difference between men and women. Being paid equally, treated with respect of course, I was very much feminist but wanted to create a life exactly as I wanted to, and for me that means having lots of sex partners, being free, and I also wanted to look sexy so I’d attract men….I never felt like a victim. I was choosing who I wanted to be with.” She felt this version of individualist feminism brought censorious wrath on her head from some of her fellow woman cartoonists.

Through the 1970s and ’80s in various comix publications she drew her short, sharp, hilarious tales of mothers and daughters, lovers and husbands, food and body image, being American and being French (having moved to France in the early 1990s), all in a brash, knowing, zesty personal voice. (If you think you can literally “hear” her voice, especially knowing her Long Island Jewish background, you are probably right.) Her—not quite shameless, but certainly brazen—self-revelation through both laughs and tears was the godmother of later generations of pop storytelling showing women’s concerns with themselves and their relationships and sexuality that were knowingly direct and vulgar, such as Lena Dunham with her Girls and Phoebe Waller-Bridge with her Fleabag.

Kominsky-Crumb made great contributions to modern comics as an editor as well, running Weirdo (launched by her husband, cartoonist Robert Crumb, in 1981) from 1986 to 1993. In its pages she was an early promoter of the works of the finest of the post-underground generation of personal female cartoonists, including Carol Tyler, Dori Seda, Krystine Kryttre, Phoebe Gloeckner, and Mary Fleener.

She was a trailblazer, yes, the kind of creator whose cleared paths and innovations were filled and followed by so many after her that the original risks having a modern reader think “you’ve seen and heard it before.” But Kominsky-Crumb was so relentlessly herself, her insights into herself and the world around her so at the same time laced with a deep love and engagement and deep bemused contempt, her twisted, surface-primitive but highly layered and textured panels, linework, and figuration so sui generis that the original never feels superseded by followers.

Kominsky-Crumb enjoyed poormouthing herself, telling stories about how a comic book of hers sold so poorly its publisher used boxes of it for insulation and remembering decades later how hostile Crumb’s fans got about mixing his classical draftsmanship with her “scratchy, ugly drawing” in the couple comix they drew together. But she could still in one conversation with me both say that “I was not in it for money at all, or recognition, which is a good thing because I never got any money or any recognition” and later note with somewhat bemused pride how much of her DNA she sees in modern female storytellers in and out of comics and how she now sees her work “getting academic attention.”

Her innovations in brutally honest memoir and autobiography from a decidedly individualistic feminist perspective mean her work will live, and her storytelling remains one of the best guides one can find to being a torturously free-spirited American woman and semi-popular artist in the second half of the 20th century.

The post Farewell to the Mother of Modern Feminist Cartooning appeared first on Reason.com.

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Meet the Reason Editors: Livestream


an orange background with a blue oval and the words LIVE with Reason next to photos of Reason Magazine's editors

Got questions, comments, insults, or compliments for the Reason team?

This Thursday starting at 1 p.m. Eastern, join Reason‘s Nick Gillespie and Zach Weissmueller for live interviews with Katherine Mangu-Ward, Robby Soave, Meredith Bragg and Austin Bragg, Elizabeth Nolan Brown, and Billy Binion. What are their favorite pieces from 2022? How did they join the staff? What are their plans for the coming year?

This is part of Reason‘s Annual Webathon, a weeklong event in which we ask our readers, viewers, and listeners to support our principled, libertarian journalism. All donations made through the webathon link or paid superchats are tax-deductible.

Watch and leave your questions and comments on the embedded video above or on Reason‘s Facebook page.

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Challenging Fauci, Documenting Government Outrage: What Reason Does With Your Donations!


web-traffic-fauci

So what has Reason done to deserve your hard-earned, tax-deductible donation money since our last record-breaking Webathon? A quick tour through our traffic leaderboard over the past 51 weeks shows the type of depth, variety, and commitment to sometimes niche defenses of individual liberty that have for more than half a century helped convert your cash into far-reaching journalism and commentary dedicated to Free Minds and Free Markets.

Before we go much further, though…WON’T YOU PLEASE DONATE TO REASON RIGHT THE HELL NOW???

OK, here are five samples plucked from our Top 10 list of past-year eyeball-catchers, along with brief elaborations of the genres from which they spring.

1)Anthony Fauci Says If We Could Do It Again, COVID-19 Restrictions Would Be ‘Much, Much More Stringent,’” by Robby Soave.

For the past year and a half, Senior Editor Robby Soave has, in addition to cranking out crackerjack Reason content on tech policy and education and pop culture, been a host on Rising, the daily webcast produced by The Hill. There he has engaged in some memorable (and occasionally censored) debates with commentators from across (beyond?) the political spectrum, and conducted some libertarian cross-examination of notable newsmakers.

Such as Dr. Anthony Fauci.

“If I knew in 2020 what I know now, we would do a lot differently,” Fauci told Soave. “The insidious nature of spread in the community would have been much more of an alarm, and there would have been much, much more stringent restrictions in the sense of very, very heavy encouragement of people to wear masks, physical distancing, what have you.”

Revealing things happen when Reason staffers interact with the powerful. Your donations make that possible.

3)Mom Handcuffed, Jailed for Letting 14-Year-Old Babysit Kids During COVID-19,” by Lenore Skenazy.

True story: I was recently in Tel Aviv, listening to Inbal Arieli, author of Chutzpah: Why Israel Is a Hub of Innovation and Entrepreneurship, extol the virtues of her country’s “free-range parenting.” Such is the reach of our intrepid defender of childhood and parental freedom.

Appallingly if not quite surprisingly, the piece in question isn’t the only “moms handcuffed” in the Skenazy archive. There’s “Mom Handcuffed, Arrested for Oversleeping While Her Son Walked to School,” from 2015, and “Mom Handcuffed, Jailed for Making 8-Year-Old Son Walk Half a Mile Home,” from just last month.

Here’s how the COVID-handcuffing story begins:

When COVID-19 shut down her children’s daycare in May of 2020, and Melissa Henderson had to go to work, she asked her 14-year-old daughter, Linley, to babysit the four younger siblings. Linley was engaged in remote learning when her youngest brother, four-year-old Thaddeus, spied his friend outside and went over to play with him. It was about 10 or 15 minutes before Linley realized he was missing. She guessed that he must be at his friend’s house, and went to fetch him.

In the meantime, the friend’s mom had called the police.

Skenazy’s journalism and advocacy expands the zone of familial freedom and introduces normies to government overreach. Your donations make her work possible.

4)Texas Roofer Arrested in Florida for Helping Hurricane Victims,” by Eric Boehm.

Speaking of government overreach, here we’ve got a classic Reason twofer: The madness of occupational licensing, and the warped policymaking of disaster relief. These are the types of subject that, on their own, can feel a little bit like pushing a boulder uphill against popular sentiment and government (mal)practice. But like your snack candy of choice, the two tastes combine to produce some easily digestible libertarian insight.

Reporter Eric Boehm wrote about the case of Texas-based roofer Terence Duque, who came to offer his services in a part of Florida devastated by Hurricane Ian. And then:

Duque was arrested for “conducting business in Charlotte County without a Florida license,” the Charlotte County Sheriff’s Office announced on Friday. If charged as a felony, that’s an offense that could carry up to five years in prison under Florida law—although it’s possible that Duque could be charged with only a misdemeanor offense that carries a mere one year of jail time. […]

Duque got busted for his good deed after the Charlotte County Economic Crimes Unit—which is apparently a real thing—received a call from an investigator with the state Department of Business and Professional Regulation (DBPR).

When a detective with the sheriff’s office tracked down Duque, the roofer reportedly said he believed he was allowed to work in Florida due to Gov. Ron DeSantis’ emergency order that loosened licensing rules in the aftermath of the storm. “The investigator informed Terence that this was not the case, and that Terence would be placed under arrest, as he had already done work in violation of the statute,” according to the Charlotte County Sheriff’s Office.

Outrage stories like this are a gateway drug into libertarianism. Your donations help to keep us cranking ’em out.

7)Tom Cotton, a Second Amendment Champion, Proposes a 5-Year Mandatory Minimum for Violating Arbitrary Gun Bans,” by Jacob Sullum.

Another great two-great-tastes-in-one—Senior Editor Jacob Sullum‘s market-leading meticulousness (meticulosity?) on gun-policy journalism, plus our free-floating distaste for one of the Senate’s least appealing gasbags.

Year in and year out, Sullum attracts well-earned eyeballs for his coverage of core libertarian issues—guns, free speech, pharmacological freedom, criminal justice, and how to use drugs in space. Your donations not only keep him doing this valuable work, it helps develop the next generation of baby Jacob Sullums.

9)The FBI Seized Almost $1 Million From This Family—and Never Charged Them With a Crime,” by Billy Binion.

Did someone say baby? Not that Mr. Binion is that young, quite—he’s going on his fourth anniversary producing bang-up criminal justice journalism for Reason. But in both his magazine/website coverage and his Twitter feed promoting thereof, Billy is a master of introducing people to policing outrages they can’t quite believe is legal.

In this particular piece, Binion writes about Carl Nelson and Amy Sterner Nelson, whose lives were upended by a massive cash seizure by the FBI during its investigation of Carl for possible kickbacks—an investigation that never produced any criminal charges. “We went from living a life where we were both working full-time to provide for our four daughters to really figuring out how we were going to make it month to month,” Amy told Reason. “It’s completely changed my belief in fairness.”

Having lured readers in with a story of an outrageous injustice, Binion then broadened their horizons:

They’re not alone. There was the Indiana man whose car was seized. And the Kentucky man whose car was seized. And the Massachusetts woman whose car was seized. And the Louisiana man whose life savings were seized. And the Texas man whose life savings were seized. And the countless Californians whose money and random personal possessions were seized. Sometimes the money is returned—often only when a defendant manages to lawyer up for a civil suit. Sometimes only part of it is. Sometimes none of it is. “Civil forfeiture is quite common,” says Dan Alban, an attorney at the Institute for Justice (IJ), a public interest law firm that often litigates similar cases. “The fact that the government can do this can obviously ruin lives, and it can ruin lives without anyone being convicted of a crime, without anyone even being charged with a crime.”

Your donations make Billy Binion’s work possible, as well as the variety of writing and commentary Reason has been delighting and infuriating readers with since 1968. Won’t you please donate to Reason today?

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You Can Record Video of Police in Action. But Can You Livestream That Video?


person taking video with cellphone

Lawsuit asks whether livestreaming cops is protected by the First Amendment. It’s well-established that Americans have a First Amendment right to record police. But do we have the right to livestream that recording? That’s the central question in a case currently before a federal appeals court.

The question stems from a 2018 traffic stop in Winterville, North Carolina. When police pulled over a car in which Dijon Sharpe was a passenger, Sharpe whipped out his phone and started a Facebook Live stream.

One cop tried to grab Sharpe’s phone, saying “we ain’t gonna do Facebook Live, because that’s an officer safety issue.”

“Facebook Live … we’re not gonna have, okay, because that lets everybody y’all follow on Facebook that we’re out here,” said another officer. He told Sharpe that “in the future, if you’re on Facebook Live, your phone is gonna be taken from you … and if you don’t want to give up your phone, you’ll go to jail.”

“Is that a law?” Sharpe asks in the recording. “That’s not a law.”

Sharpe is right—there’s no law explicitly saying one can’t livestream interactions with police officers. But there’s also little legal precedent for what happens when one attempts to and cops curtail that attempt.

“No circuit court has yet ruled on whether passengers in traffic stops can be blocked from recording police or on whether live-streaming is different from merely recording,” notes The Washington Post.  And the U.S. Court of Appeals for the 4th Circuit, which will hear this case, “has not ruled on the right to record at all.”

The 4th Circuit heard oral arguments for the case—Dijon Sharpe v. Winterville Police Department—in October.

“This case is important; it’s going to affect thousands of thousands,” Sharpe’s attorney, Andrew Tutt, told the court. “This case has important consequences for every police-citizen interaction in this circuit.”

Sharpe said he had wanted to livestream the traffic stop because he thought it was suspicious (the cops said the car’s driver ran a stop sign, something Sharpe said did not happen) and because of previous negative interactions he and family members have had with police. His cousin, Dontae Sharpe, was imprisoned for 24 years on murder charges despite a key witness recanting testimony after trial (Dontae was finally released and formally pardoned in 2021). “Since getting involved in efforts to free Dontae, Dijon says his encounters with police grew increasingly hostile, culminating in his being Tasered and beaten by police officers in 2017,” notes the Post. “With no video to support his version of events” that time, “he was forced in court to apologize to them.”

This time around, Sharpe wanted to make sure there was a real-time recording of events that police could not later alter or delete. After an officer told him this wasn’t OK, he sued.

A U.S. district court sided with the cops. “The Fourth Circuit has not held in a published opinion that an individual’s right under the First Amendment to record a traffic stop is clearly established, much less held that an individual has a right to record and real-time broadcast a traffic stop from within the stopped car,” wrote the judge in an August 2020 decision. Thereby the police could not have known their actions were wrong, and were entitled to qualified immunity.

“Seven federal appellate courts have affirmed that there is a First Amendment right to film the police,” notes the Post. “But all said there can be ‘reasonable’ restrictions on that right, and the U.S. Supreme Court has not clarified what counts.”

Sharpe then appealed to the U.S. Court of Appeals for the 4th Circuit. And a slew of civil liberties organizations have filed briefs on behalf of Sharpe’s position.

The appeals court “should hold that…the right to record is not limited to recording for future publication,” states the American Civil Liberties Union in one such brief. “Rather, it protects—and, if anything, derives from—the right to publish and disseminate video, including the right to do so instantaneously. The First Amendment protects the choice of when to publish just as it does the choice of what to publish, and whether to publish at all. In other words, the First Amendment protects the right to livestream, which
enables individuals to simultaneously record and broadcast.”

Any reasonable officer should have known that preventing Mr. Sharpe from livestreaming his encounter with police would violate his clearly established First Amendment rights,” states a brief from the Institute for Justice. “After all, six federal circuit courts, the Department of Justice (‘DOJ’), and numerous local governments have long agreed that the First Amendment protects an individual’s right to record police in public.”

“Police have great power. Civilian recording of police officers serves the public’s vital interest in ensuring that police exercise this power lawfully,” states a brief from the National Police Accountability Project.

In holding that qualified immunity applied in this case, “the district court heavily emphasized that the many other cases on this subject did not involve the exact facts as Mr. Sharpe‘s casespecifically, that he was not just recording the encounter, but also ‘realtime broadcasting with the ability to interact via messaging applications in realtime with those watching a traffic stop from inside the stopped vehicle,'” notes the Cato Institute in its brief.

“But this approach to assessing whether rights are clearly established is exactly the sort of misapplication of qualified-immunity precedent that the Supreme Court recently warned against in Taylor v. Riojas,” the Cato brief continues. “Taylor reaffirmed that the fundamental question in qualified immunity cases is whether the defendant had ‘fair warning’ that their conduct was unlawful, not whether there is a prior case with functionally identical facts.”

“Unfortunately, the sort of misapplication of qualified immunity employed by the district court—construing ‘clearly established law’ to effectively require a case with identical facts—is no isolated error, but rather part of an all-too-common practice in lower courts,” the brief reads. “That persistent misunderstanding of qualified immunity not only gets the law wrong, but its application to police officers has exacerbated a growing crisis of accountability for law enforcement officers generally.”


FOLLOW-UP

Appeals court won’t pause ruling against student loan forgiveness plan. After a Texas judge ruled President Joe Biden’s student loan debt forgiveness plan unconstitutional, the Biden administration appealed to the 5th Circuit Court of Appeals, asking the court to pause the judge’s order as the administration’s appeal plays out. The court said no.

“A three-judge panel of the 5th Circuit in Wednesday’s brief order declined to put Pittman’s ruling on hold while the administration appealed his decision, but the court directed that the appeal be heard on an expedited basis,” reports Reuters. “The White House had no immediate comment but the administration has said that if the 5th Circuit declined to halt Pittman’s order it would ask the U.S. Supreme Court to intervene.”


FREE MINDS

Ohio arrests journalist covering murder trial. “An ongoing murder trial involving multiple defendants has resulted in the editor of small local paper being arrested for performing an act of journalism,” reports Techdirt.

The case revolves around recorded testimony from one of the defendants, Jake Wagner. In general, “courts permit recordings and broadcasting of criminal trials,” but “the relevant exception here is that witnesses can request their testimony not be recorded or broadcast and, if the court agrees, this permission is revoked during this testimony,” Techdirt‘s Tim Cushing explains. Wagner “made this request and had it granted. Nonetheless, someone attending the trial recorded it and passed it on to Derek Myers, who runs the Scioto Valley Guardian.”

Myers and the Guardian published some of the audio with this note:

The Guardian received a portion of Jake Wagner’s testimony on his first day on the witness stand. The Guardian wants to disclose that the audio was not recorded by a member of the media and was submitted to the Guardian’s newsroom by a courthouse source who is authorized to have their cell phone in the room.

Nonetheless, officers with the Pike County Sheriff’s Office arrested Myers and seized his laptop and his phone.

Myers was charged with having used the contents of an illegally obtained recording. But the First Amendment protects Myers and his paper from prosecution for merely publishing information or audio of public interest that it obtained legally, even if that audio was illegally obtained by someone.

As Cushing puts it: “This wasn’t wiretapping. This was journalism.”

While Myers should ultimately beat this, he still “had to post a $20,000 bond, must submit to alcohol/drug tests [???], and keep his schedule open to attend any court hearings until the charges are either dropped, or he’s cleared by the court,” notes Cushing. “Why must he do this? Because the government is clearly in the wrong, yet has the luxury of being wrong until proven otherwise.”


FREE MARKETS

More bad news for the crypto industry: One of the world’s largest crypto exchanges, Kraken, is laying off nearly a third of its work force, to the tune of around 1,100 people being let go. CEO and co-founder Jesse Powell called the move necessary “in order to adapt to current market conditions.”

“Over the past few years, hundreds of millions of new users entered the crypto space and millions of new clients put their trust in Kraken during that time. We had to grow fast, more than tripling our workforce in order to provide those clients with the quality and service they expect of us,” writes Powell in a blog post on the Kraken website. “Since the start of this year, macroeconomic and geopolitical factors have weighed on financial markets. This resulted in significantly lower trading volumes and fewer client sign-ups. We responded by slowing hiring efforts and avoiding large marketing commitments. Unfortunately, negative influences on the financial markets have continued and we have exhausted preferable options for bringing costs in line with demand.”


QUICK HITS

• Rep. Hakeem Jeffries (D–N.Y.) has been voted House Democratic leader, replacing Nancy Pelosi.

• Officials keep finding new ways to access private records without a warrant.

• Indiana’s attorney general continues to try and punish a doctor who provided an abortion to 10-year-old girl.

• “Today might not be a great time to buy a home. Tomorrow might not either,” writes Annie Lowrey.

• On the demise of Amazon’s Alexa.

• “A new expanded law on ‘foreign agents’ in Russia comes into force Thursday, signifying an intensifying crackdown on free speech and opposition under President Vladimir Putin that has accelerated as his fortunes in Ukraine have deteriorated,” reports CNN.

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Free Speech Rules, Free Speech Culture, and Legal Education: Specific Practices

I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I’d serialize my current draft article; there’s still plenty of time to improve it, so I’d love to hear people’s comments. Here are some follow-up thoughts on what I think law schools should try to teach, though you can read the whole PDF, if you prefer:

[* * *]

Law schools, then, need to act in ways that promote these important—but often counterintuitive—skills, habits, and attitudes. When they fail to do that, they fail their students.

And the students who suffer most from law schools’ failure in such matters are the students who belong to the majority ideological group; today, that is mostly students on the Left. Students on the Right get to hear contrary views, and get to refine their own arguments (which they are likely to seek out, given their emotional investment in their own beliefs) and to learn how to respond to the Left’s arguments. Students on the Left, however, are more likely to have heard only their side’s arguments on many topics, and thus to be less prepared for the best arguments that the Right has to offer.

A. Protecting Student Speech (and Speech of Invited Speakers)

One obvious step to educate students in the habits and attitudes discussed in Part I is to protect speech by students and by invited speakers, including speech that expresses views that sharply diverge from local majority views. This is a First Amendment obligation for public law schools, and it’s an academic freedom obligation for private law schools that claim to be committed to academic freedom, rather than to promoting a particular belief system. Such speech should certainly not lead to punishment of the students who speak, or who invite the speakers. But it should also be affirmatively protected from attempts to shout it down, and of course from attempts to suppress it by threats of violence.[2]

Indeed, schools should point out that students who disrupt such events aren’t just interfering with the rights of the speakers—they are also interfering with the rights of the students who are there to listen, and indeed with those students’ education. And schools should discipline students who disrupt such events. Naturally, they should impose such discipline regardless of the event’s ideology, whether the event is seen as, say, for or against transgender rights, for or against abortion rights, for or against critical race theory, and so on.

B. Responding to Unpopular Views in Ways That Promote Discussion

Now of course law schools themselves also have the right to speak. Private law schools have a First Amendment right to speak; public law schools at least have the power to speak, at least absent any restrictions imposed by their state legislature. Faculty members also have such a right.

At the same time, law schools should recognize that their speech can understandably deter students. Gissel Packing Co. v. NLRB, a labor case, offers a helpful analogy. In Gissel, the Court recognized that employer speech, though generally protected by the First Amendment, is particularly likely to be seen as implicitly threatening by employees who realize that they are within their employers’ power: Labor laws “take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.”[3]

Likewise, law schools should take into account that law students—concerned about their own economic and professional future—might interpret law schools’ condemnations of speakers, especially when couched in terms such as “hate speech,” as implying that students should view those speakers’ views as beyond the pale. And law schools should also recognize that their speech can reinforce habits of closed-mindedness and unwillingness to listen.

Consider, for instance, Kansas University Law School’s condemning an Alliance Defending Freedom speaker on the grounds that ADF—which has litigated and advocated against some gay rights and trans rights claims—engages in “hate speech” and that its values are “antithetical to the inclusion and belonging we strive to achieve on campus.”[4] This sends a powerful message to students: If they invite such speakers, and perhaps even if they listen thoughtfully to those speakers, they themselves are hateful people who may merit being shunned, just as the university seems to be urging people to shun the ADF itself. But beyond that, the message urges students not to engage with ADF’s arguments, and not to take those arguments seriously.

Yet the ADF is an immensely successful litigation organization, which has won many cases both in the Supreme Court and elsewhere.[5] It also has significant influence in legislative and political debates. Perhaps they shouldn’t have won. Perhaps they deserve to lose, at least on the issues to which the law school was referring. But they are formidable adversaries, who obviously know much about effective lawyering for their causes.

Anyone interested in lawyering related to those causes can gain much from hearing from ADF lawyers, from asking them questions, and from thinking hard about their arguments and about how they frame those arguments. Students who hope to effectively oppose the ADF, for instance as to gay rights or transgender rights, should be encouraged to pay more attention to them rather than less. And even students who don’t expect to practice in those fields have much to learn from how such successful lawyers craft their arguments.

To be sure, law students could learn about the ADF by reading its briefs, or watching videos of its oral arguments. But of course that’s true on all topics, yet what law school says, “We don’t need to organize talks, or fund talks by student groups, on (say) environmental law or technology law or bankruptcy law—students should just read a good book or brief on the subject, or listen to an oral argument”?

Law schools realize that watching a talk or a conversation, and having an opportunity to ask questions (or even just to listen to responses to classmates’ questions), helps give an extra perspective that pre-prepared materials don’t offer. And law schools realize that students are already overwhelmed with readings, and are just not that likely to do a lot of extra reading—but might be open to showing up to a talk. The same applies to talks by controversial advocates on controversial topics.

I would prefer that universities and their departments generally not take stands on various controversial public policy questions or legal questions. (The University of Chicago’s Kalven Report speaks well to that point.[6]) But if a law school wants to express its views supporting gay rights or transgender rights on occasion of such a talk, it should do that in a way that encourages rather than discourages engagement, for instance:

As Dean of this law school, I support gay rights and transgender rights, and the law school is committed to treating students fairly, without regard to sexual orientation or gender identity. But obviously this is a highly controversial topic; rightly or wrongly, many of our fellow citizens hold opposing views (and that’s even more true of many of our fellow humans in other countries throughout the world).

The ADF, agree with it or not, is an extremely effective advocate for its views. I encourage you to come listen to Jordan Lorence’s presentation, even if—perhaps especially if—you want to learn how to more effectively rebut his arguments, and how to become an equally effective and accomplished lawyer for the other side.

[* * *]

Still to come, in future posts (or you can see it now in the PDF):

II. Specific Practices
C. Evenhandedly Encouraging Debates or Conversations Among People Who Disagree
D. Organizing Law-School-Sponsored Events That Model Thoughtful Disagreement on Controversial Topics
1. The value of law-school-organized events
2. The insufficiency of leaving such debates to the classroom
3. Focusing on real current debates
E. Inviting Leading Successful Advocates from All Points on the Ideological Spectrum
F. Encouraging Faculty to Express Dissenting Views
III. Responses to Some Possible Objections
A. Student Upset (Especially as to Views That Are Seen as Derogatory of Their Identities)
B. Vulnerability of Powerless Minority Groups
C. Risk of Persuasiveness
D. Risk of “Legitimizing” Certain Perspectives
E. Losing the Opportunity to Chill Political and Ideological Participation and Organization by the Other Side

[* * *]

[1] Michael McConnell has noted this before.

[2] See, e.g., Robby Soave, ‘Grow Up’: Yale Law School Students Interrupt Event, Demand Right to Talk over Speakers, Reason, Mar. 16, 2022, 5:30 pm, https://‌perma.cc/‌ZN4V-2CM8; Samantha Harris, “Stop Debating”: CUNY Law Students Disrupt Speaker and His Critic, FIRE, Apr. 12, 2018, https://‌perma.cc/‌LP58-9EAP; Robby Soave, UC Hastings Law Students Silence Conservative Speaker, Demand Anti-Racism Training, Reason, Mar. 2, 2022, 6:02 pm, https://‌perma.cc/‌3P8S-C3LX.

[3] 395 U.S. 575, 617 (1969).

[4] Patrick Richardson, KU Law School Says ADF Discussion of the First Amendment Is “Hate Speech,” Lion, Oct. 26, 2022, https://‌perma.cc/‌J8JT-594G; E-mail from Leah Terranova to KU Law Students, Law Administration, and Law Faculty, Oct. 20, 2022, 10:50:33 am, https://‌perma.cc/‌2WGL-US9A.

[5] See, e.g., Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021); National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

[6] Kalven Committee, Report on the University’s Role in Political and Social Action, Nov. 11, 1967, https://‌perma.cc/‌8L2Y-RRCR.

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The Labor Market Is Broken


topicsfuture

Inflation is up. The stock market is down. Unemployment is just 3.5 percent. Yet labor force participation remains stubbornly low, with only 62.3 percent of the civilian population working or actively looking for work—well below pre-pandemic levels. And even before the pandemic, that figure had been steadily declining for years.

There are plenty of uncharitable theories about why the American work force is shrinking as a percentage of the population, resulting in 10 million unfilled jobs and a lot of well-wrung hands. The most common is simply that Kids These Days don’t want to work and it’ll be Gen Z’s fault when the U.S. is no longer a global economic superpower.

A substantial number of younger people are not, in fact, keen to get hitched with an employer. In 2022, “for every [25- to 54-year-old] guy who is out of work and looking for a job,” American Enterprise Institute economist Nicholas Eberstadt told the Fifth Column podcast, “there are four guys who are neither working nor looking for work.”

But the Kids These Days hypothesis is complicated by the fact that while the labor force participation rate includes people 16 and older, the largest component of the most recent reduction appears to be older people who took retirement early and/or previous retirees who have not rejoined the work force at the rates they once did. This trend may well reverse itself if the stock market continues to decline and retirement accounts evaporate, but for now it looks like baby boomers turning on, tuning in, and dropping out—however belatedly—are at least as much of a labor force problem as wayward youths.

What these two groups have in common can be found in an old chestnut of game theory: the ultimatum game. Even if you don’t know the 1982 paper that popularized the experiment, you’ve certainly encountered the phenomenon. Imagine two people, one of whom is given $10 and told to propose a way to split the money with another person—a stranger, let’s say. The catch is that if the stranger doesn’t agree to the deal, they both get nothing.

Economists and psychologists alike love this experiment because it captures an interesting facet of human behavior that appears irrational at first glance. Surely the second man should accept any deal offered by the first. So what if he’s offered just a penny? Free money is free money! Who cares if the other guy gets to keep $9.99? Instead, across all cultures and contexts, people reject offers they perceive to be unfair: The details vary, but human beings turn down money with astonishing consistency if they think they’re being done dirty.

This allergy to economic unfairness may well be what unites the “quiet quitters” of Gen Z and the early boomer retirees: They increasingly perceive the terms of employment to be so off-kilter that they would rather not work at all, even if that decision screws them over in the end.

“The process of contracting a worker is often close to ultimatum bargaining,” explained Elwyn Davies (then with the University of Oxford) and Stanford University’s Marcel Fafchamps in a 2016 paper exploring the effects of competition on behavior within the ultimatum game. “The employer specifies a job description and proposes a wage and the worker accepts or rejects.”

So if employment is an ultimatum game—where playing along might get workers less than employers, but refusing to play gets everyone zero—what is causing the perception that the terms of employment are no longer worth accepting, even when both parties would benefit?

Positive views of capitalism more generally have slipped since 2019, with 39 percent expressing negative views in an August Gallup poll. Another Gallup poll found an uptick of 3 percentage points in people who say they are “completely dissatisfied” with their jobs, while the number of people who were “completely satisfied” fell 8 points.

The perception that conventional jobs are essentially offering workers a pittance while greedily holding back the bulk of the wealth is common in places like the r/antiwork subreddit, which has 2.3 million members. In fact, there’s at least one discussion of the ultimatum game itself on that subreddit, which pulls some figures on companies’ revenue vs. worker compensation and concludes: “If working for Apple was the ultimatum game, the proposer just got $100. They’re offering you 23 [cents], and they keep $99.77. Deal or no deal?” The relative sizes of these numbers might also explain why simply raising wages hasn’t brought people into the workforce, especially when paired with increased awareness of and dissatisfaction with the gap between CEO pay and worker pay in large corporations.

Early retirement also makes some sense on this accounting. Older people may have expectations about what their compensation or responsibilities should be, with reference to either the generation who retired before them or to their younger colleagues. When they are not offered what they perceive to be their due, they would rather zero out their income than continue to work.

Paul J. Zak, a neuroeconomist who has done experimental work on the role of empathy and perspective-taking in the ultimatum game, cautions against an approach that is “too econo-centric.” Large and unpredictable government subsidies to individuals and corporations erode the broader sense that hard work will be rewarded and is worth pursuing, even if the wages offered previously seemed fair. There is almost certainly more at play than wage and price levels alone.

The pandemic threw a wrench into this and every sociological and economic question and will continue to annoy academics looking for patterns for at least another century. Many jobs did get appreciably worse during the height of COVID, when death suddenly became a possible side effect of working in the grocery store, a factor that shouldn’t be underestimated. But decreases in labor force participation predate the pandemic.

In many ways, work is better than it has ever been. It is less dangerous, requires fewer hours, is less physically taxing, and affords the purchase of better stuff than for most of human history. But the supply chain interruptions of recent years paired with rapid changes in the terms of employment during the pandemic may well have disrupted the sense that the deal workers were being offered was fair.

The temptation of the ultimatum game is to dismiss the results as irrational and therefore bad. It’s easy to dismiss workers as lazy or employers as short-sightedly selfish. But the consistency with which individuals in nearly all situations perform in the ultimatum game actually highlights something good about people: They care about what is fair and they will devote significant effort to making deals where everyone wins. The authors of that 2016 paper found, for instance, that in an environment with multiple employers and multiple employees, the offers tended to start higher and employees tended to do better overall. Competition causes employers to think harder about what workers want and to offer it as seamlessly as possible.

Right now there’s something broken in our economy that is preventing employers and employees from cooperating with each other. The result is that too few deals are being struck and everyone is suffering. The challenge ahead is how to rebuild a sense that the game is fair and everyone is playing in good faith.

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Brickbat: Tiger By the Tail


Auburn University

A federal jury in Alabama has awarded Auburn University professor Michael Stern $645,837 in damages after finding Stern’s former dean violated his First Amendment rights by punishing him for criticizing the high number of athletes in the school’s public administration program in 2014. Stern was removed as chair of the economics department after raising his concerns about donor meddling in order to protect student-athletes. A 2015 article in The Wall Street Journal found about half of students majoring in public administration at Auburn played sports. The story quoted one school official writing in an email that “If the public administration program is eliminated, the (graduation) numbers for our student-athletes will likely decline.”

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