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In this morning’s Price v. Barr decision, Judge Colleen Kollar-Kotelly (D.D.C.) held:

[1.] Filming, including for purposes of making a film that would be commercially distributed, is protected by the First Amendment.

[2.] The permit requirements are content-based, because

[The requirements] do not apply generically to all commercial activity in national parks. To the contrary, the permitting regime applies to filming, a form of expressive speech, and specifically to a type of filming, “commercial filming.” 54 U.S.C. § 100905(a). Section 100905’s implementing regulations make this content-based distinction even more apparent, defining “commercial filming” as the “recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income.” The application of § 100905’s permitting regime, therefore, necessarily turns on an assessment of whether the content of a film was meant to appeal to a market audience and generate income.

Consider, for example, the enforcement of § 100905 against Mr. Price and his film Crawford Road. To determine whether Crawford Road ran afoul of § 100905’s permitting regime, NPS officials needed to review the film and determine ex post whether the content Mr. Price included therein was geared towards a “market audience” or evinced some “intent of generating income.” 43 C.F.R. § 5.12. If, however, Mr. Price’s film was “non-commercial” or happened to feature only news worthy “information … about current events or … of current interest to the public,” the permitting requirement would not apply, see id. at § 5.4(a).

[3.] The requirements must therefore satisfy strict scrutiny, which they can’t do. The “governmental interest in revenue collection” isn’t compelling enough; and the regulations aren’t narrowly tailored to the interest in “[p]rotecting national park land and the resources it contains”:

First, § 100905 and its implementing regulations are overinclusive. On their face, § 100905 and its implementing regulations flatly require a paid permit for all “commercial filming.” This regime, therefore, requires “individuals and small groups to obtain permits before engaging in expressive activities,” just the same as it does for large groups with heavy and potentially disruptive filming equipment. Defendants offer no explanation for how the broad sweep of this permitting regime is sufficiently tailored to the government’s goal of protecting federal land….

Relatedly, § 100905’s permitting regime also excludes non-commercial filming without any consideration for the damage that activity might also cause to national parks. For example, a “non-commercial” filming production carried out by a non-profit organization or a news crew would escape the reach of § 100905’s permitting regime, even if those groups used heavy filming equipment that damaged federal land.

I’m not sure that a distinction between commercial filming and noncommercial filming, turning just on whether the result is to be commercially distributed, is content-based. But I agree that the news-gathering exemption, for “information that is about current events or that would be of current interest to the public,” makes the rules content-based, see Regan v. Time, Inc. (1984). And I agree that the rules can’t pass the strict scrutiny required for such content-based restrictions.

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Will Wilkinson is a vice president at the left-leaning Niskanen Center, a contributing writer at The New York Times, and someone who has frequently quarreled with me about so-called cancel culture. (I think it’s generally bad when people are fired, expelled, or dragged on social media for saying stupid or poorly phrased things they quickly come to regret; Wilkinson has suggested to me that I’ve made too much of this problem.)

On Wednesday, Wilkinson tweeted, “If Biden really wanted unity, he’d lynch Mike Pence.”

Lynching humor is virtually never a good idea, and this joke was especially badly executed. (Wilkinson said he was making a joke not at the former vice president’s expense, but in reference to the Capitol rioters who had expressed a similar sentiment. The joke being that this time it was the far right calling for violence against a Republican official rather than the left.)

Nevertheless, widespread outrage—some of it stoked by conservative news sites like The Federalist and The Daily Caller—ensued on social media. Wilkinson apologized, describing his tweet as a lapse in judgment.

“It was sharp sarcasm, but looked like a call for violence,” said Wilkinson. “That’s always wrong, even as a joke.”

Nevertheless, the Niskanen Center fired Wilkinson and made it clear that they did so explicitly because of the tweet. “The Niskanen Center appreciates and encourages interesting and provocative online discourse,” wrote Niskanen President Jerry Taylor in a statement. “However we draw the line at statements that are, or can in any way be interpreted as, condoning or promoting violence.”

The New York Times, too, may take action. “Advocating violence of any form, even in jest, is unacceptable and against the standards of The New York Times,” a Times spokesperson told Fox News. “We’re reassessing our relationship with Will Wilkinson.”

And thus a noted doubter of cancel culture has been canceled for a problematic tweet—ironic, but also regrettable, in my view. Both the Niskanen Center and The New York Times are private organizations and free to associate with whomever they wish, of course; a think tank that intends to influence public policy by lobbying legislators may find it inconvenient to employ someone who threatened violence against Mike Pence, even in jest. And decisions about hiring and firing are rarely as simple as they appear to outside observers with an ax to grind, so there may well be more going on here—though the statement from Taylor seems to eliminate much of that ambiguity in this case.

The term cancel culture, in recent years, metastasized, and is now deployed in a wide variety of situations, some of which strain the boundaries of the term to breaking. Rep. Jim Jordan (R–Ohio), for instance, described the second impeachment of President Donald Trump for his role in the Capitol riots as an example of Democrats trying to “cancel” the president. This is nonsense.

But Wilkinson’s case is a classic, textbook cancelation: excessively harsh, drastic disciplinary action in response to one dumb tweet that would otherwise likely have been forgotten in a matter of days.

This affair has produced several hypocrisies. First, if the Niskanen Center “draws the line at statements that are, or can in any way be interpreted as, condoning or promoting violence,” then it would have to fire its president. Taylor has arguably used Twitter in a manner that suggests he condones violence. He rooted for antifa to punch out Mark and Patricia McCloskey, the St. Louis couple who waved their guns at protesters encountered on their private street. “If I were in that march, and these racist lunatics were waiving [sic] guns at me, I’d like to think I’d rush them and beat their brains in,” said Taylor. “And I wouldn’t apologize for it for one goddam [sic] second.”

Unlike Wilkinson’s tweet, there’s little reason to assume this was meant in jest. And unlike Wilkinson, Taylor is the president of the organization, and sets the tone for what is permissible. If the boss can tweet an unapologetic call to “beat their brains in,” his employees might very well think that edgy humor is okay. Perhaps that’s why Taylor deleted his statement regarding Wilkinson’s firing—he realized that it impugned him as well. (Neither Taylor nor a spokesperson for the Niskanen Center responded to a request for comment. Wilkinson declined to comment.)

Another hypocrisy concerns the conservative news outlets that wrote about Wilkinson in the first place. Both The Federalist and The Daily Caller complain constantly about cancel culture, and favorably cover those who criticize it. They are often right to do so. (In fact, I have been quoted in The Federalist, The Daily Caller, and even a Niskanen Center report, about the perils of cancelation.) But when the time came to show the exact sort of mercy they otherwise would have called for had the subject been a victim of left-wing activists or the mainstream media, these elements of the right poured gasoline on this fire without any hesitation.

If you only criticize cancel culture when it’s your side being canceled, then you aren’t really attacking the concept—you’re just playing defense for your team. That’s why it’s important to speak out on behalf of those facing social media mob justice, even when the victim is not a member of one’s own ideological coalition.

Indeed, given that I am primarily known for criticizing cancel culture, Wilkinson—who once tweeted “Cancel culture, lol” and also suggested I branch out to “slightly more important stories“—may be the closest thing I have to an ideological foe. In that spirit, I oppose his firing, and encourage his employers to reconsider.

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The Ohio Supreme Court just granted review in M.R. v. Niesen, on the question whether “when a lower court imposes a prior restraint on expression, immediate appellate review is required.” (The underlying case involves a Cincinnati policeman who sued for libel over a post that accused him “of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the ‘ok’ sign at a City Council meeting … held to address concerns by those in the Black Lives Matter Movement.” The judge responded by issuing a preliminary injunction ordering the defendants not to “publiciz[e], through social media or other channels, Plaintiff’s personal identifying information,” which apparently includes the policeman’s name.)

I think the answer is yes, given the National Socialist Party of Am. v. Village of Skokie case. With the indispensable help of our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson), the UCLA First Amendment Clinic had filed an amicus brief supporting that position and arguing that the court should hear the case, on behalf of Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Christine Tarkington, Aaron H. Caplan; the National Writers Union, the Society of Professional Journalists, the NewsGuild-CWA, Euclid Media Group; and me. Here’s the heart of our argument (which I expect we’ll also resubmit as a merits-stage brief to the court, now that it has agreed to consider the merits):

{The plaintiff, a police officer, sued the defendants, Ohio citizens who criticized his on-duty conduct providing security at a City Council meeting at Cincinnati City Hall. The complaint raised a defamation claim and other similar tort claims. Less than two days after filing the complaint, after a hearing at which the defendant-appellants were present and at which the plaintiff presented no testimony, the court issued an order that “enjoined” the appellants “from publicizing, through social media or other channels, Plaintiff’s personal identifying information.” The order did not define “personal identifying information,” but the only statute that defines the phrase, R.C. 2913.49(A), defines it to include a person’s “name.”}

Within 48 hours of filing his complaint, [plaintiff] sought and received a sweeping prior restraint: an order forbidding two Ohio citizens from publishing information about a public official arising out the performance of his official duties. That order, like all prior restraints, is presumptively unconstitutional. But when those citizens, Julie Niesen and Terhas White, appealed that order to the First District, the appellate court dismissed the appeal, concluding that there was no final order.

That dismissal was wrong, and there are at least four reasons why this case presents substantial constitutional questions and issues of public or great general interest.

[A.] The order is a prior restraint of the appellants’ free-speech rights.

“The term ‘prior restraint’ is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, ¶25 (some quotation marks omitted). “Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.” Id. (quotation marks omitted). “It is inescapable that a regulation of speech ‘about’ a specific person . . . is a regulation of the content of that speech and must therefore be analyzed as a content-based regulation.” Bey at ¶33.

“[B]efore a court may enjoin the future publication of allegedly defamatory statements based on their content, there must first be a judicial determination that the subject statements were in fact defamatory.” Bey at ¶44 (citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 246, 327 N.E.2d 753 (1975)). Likewise, a court may enjoin speech that falls within some other exception only after “there has been” a “judicial determination that future postings” by the plaintiffs will fit within that exception (in Bey, this was the “speech integral to criminal conduct” exception). Id. at ¶¶45, 47.

The court below forbade Ms. Niesen and Ms. White from mentioning the name of a public official (police officer “M.R.”) in any forum or medium, and it thus is a content-based order. This was a decision made by one judge, without the opportunity for a full trial or even comprehensive briefing, less than 48 hours after the complaint was filed, and it thus was not made after judicial determination that the statements were in fact defamatory. Nor is the order limited to forbidding libelous speech, speech that constitutes true threats, or speech that falls into any other First Amendment exception, such as the exception for intentional incitement of imminent and likely criminal conduct, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). It thus does not satisfy the requirement of falling outside the protection of the First Amendment.

The order prohibits speech that is fully protected by the First Amendment and by Art. I, § 11 of the Ohio Constitution. It has no expiration date. The order is a prior restraint of the appellants’ speech. And “Prior restraints on First Amendment expression are presumptively unconstitutional.” Bey at ¶60. Cases seeking review of presumptively unconstitutional orders restraining speech are the epitome of cases raising substantial constitutional questions.

[B.] The prior restraint impinges upon the public‘s rights.

The First Amendment protects not only the rights of speakers, but also the rights of listeners. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 609 (1976) (Brennan, J., concurring) (“[I]t is the hypothesis of the First Amendment that injury is inflicted on our society when we stifle the immediacy of speech.”) (emphasis added); McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015) (anti-libel injunction has “the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.”).

Prior restraints always interfere with the public’s constitutional right to listen, but this particular prior restraint also interferes with the public’s constitutional right to access—including to listen to accounts of—court proceedings. That right is well-established. See In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (adult civil and criminal proceedings are “presumptively open to the public”); State ex rel. The Repository v. Unger (1986), 28 Ohio St. 3d 418, 421 (both pre-trial and trial proceedings are open to the public); Sup.R. 45(A) (case documents are open to the public). This order interferes with that constitutional right because it prohibits the defendants from discussing the plaintiff by name when talking about this litigation.

The public also has a right (and indeed, a duty) to supervise and scrutinize public officials regarding the performance of their official duties. That is true generally, but this Court has said that it is particularly true when the public official is a police officer and when the conduct being discussed is his participation in court proceedings. See Soke v. Plain Dealer (1994), 69 Ohio St.3d 395, 397.

The order in this case thus represents a constitutional quadruple-whammy: by allowing the public official here to surreptitiously use the Ohio courts to immunize himself from such public scrutiny, the order has interfered with the appellants’ speech rights generally; interfered with the public’s right to listen to speech on matters of public interest; interfered with the public’s right and duty to supervise the proceedings of the state court system that dispenses justice in their name; and interfered with the public’s right and obligation to supervise public officials’ performance of their official duties. The First Amendment does not permit this type of speech restriction.

[C.] The dismissal order elevates state civil procedure rules over the First Amendment and form over substance.

Because of all the foregoing constitutional problems, the U.S. Supreme Court has held that prior restraints must be subject to immediate appellate review. National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). But the Court of Appeals refused to follow this precedent, explaining its decision to disregard the U.S. Supreme Court’s command by saying that it viewed the order as just a “temporary restraining order,” and not a preliminary injunction.

That refusal raises yet another substantial constitutional issue. Constitutional rights, including the First Amendment precedents requiring immediate appellate review of prior restraints, apply regardless of state-law distinctions between TROs and preliminary injunctions. Holding otherwise would permit state law (or, more precisely, state court rules) to dictate the applicability of federal constitutional law. That would wrongly elevate state-law form over federal substance, turning the Supremacy Clause on its head. See U.S. Const., art. IV, cl. 2 (federal Constitution and laws “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). Federal law controls over state procedure; not the other way around.

Moreover, the First District’s reliance on the supposed status of the prior restraint as a TRO was an inaccurate elevation of form over substance. This Court recently (and unanimously) recognized that TROs can be “classic examples of prior restraints.” Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, ¶25. The immediate appealability of the order therefore does not depend at all on whether the order was a TRO, a preliminary injunction, or anything else.

{And, though it does not matter to the constitutional issue, the appellate court’s conclusion that the order was a TRO and not a preliminary injunction is likely incorrect. The order is properly seen as a preliminary injunction because it was not granted ex parte, cf. Civ.R. 65(A) (“A temporary restraining order may be granted without written or oral notice . . . .”), and, as the Court of Appeals observed at ¶10, the duration of the order “extended . . . past the expiration of the period set forth in Civ.R. 65 for a temporary restraining order.” See id. (limiting TRO to 14 days plus one like extension for good cause; the order here was journalized in July and apparently was intended by the common pleas court to remain in effect at least until September 1).}

[D.] The dismissal order created a split between appellate districts.

Even if the First District’s dismissal order had no constitutional implications, it would warrant review and correction by this Court because it created a district split. The First District below held that the First Amendment offers no right to immediate appellate review of an ostensible temporary restraining order. M.R. v. Niesen, 1st Dist. No. C-200302 at ¶ 1 (Sept. 9, 2020).

But the Second District has held that “Because the right of free speech must be protected against the chilling effect resulting from even its temporary infringement, the United States Supreme Court held in [Nat’l Socialist Party] that: ‘If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, including immediate appellate review. . . .'” Int’l Diamond Exch. Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App. 3d 667, 671, 591 N.E.2d 881, 884 (2d Dist. 1991) (citations and some internal markup omitted; emphasis in original). And “Given that an immediate appellate forum for review of an order that imposes a prior restraint upon the exercise of free speech is necessitated by the federal Constitution,” an appellant need not “wait until the case has been concluded in the trial court before he may challenge the order.” Id. See also Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, at ¶1 (“Although the issuance of a preliminary injunction by a trial court generally is not viewed as a final appealable order, . . . a preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review.”).

The Eleventh District agrees: “[W]here an injunction seeks to ‘impose a restraint [on First Amendment rights],’ there must be strict procedural safeguards, including immediate appellate review.” Puruczky v. Corsi, 11th Dist. Geauga No. 2017-G-0110, 2018-Ohio-1335, ¶15 (paraphrasing Nat’l Socialist Party; some internal markup omitted). “Since Corsi alleges that the injunction substantially impacts his rights and constitutes a prior restraint on his speech, we will proceed to a review of the merits of his appeal.” Id.

Unlike the First District’s decision below, the holdings of those districts offer no loophole for temporary restraining orders, and those courts exercised their jurisdiction and reviewed (and reversed) the prior restraints. And both Puruczky and Connor Group were libel cases, like this one.

And the Second and Eleventh Districts’ approach is correct: As the U.S. Supreme Court has recognized, even temporary restraints on speech can create a chilling effect on the exercise of free speech. See Int’l Diamond, 70 Ohio App. 3d at 671. This Court should also exercise its discretion to review this case and resolve this split of authority on this important constitutional issue that affects fundamental rights. Unless and until it does, the rights of defendants to speak and of the public to listen and supervise their courts and their public officials, will depend on which of the State’s appellate districts they reside in….

Proposition of Law no. 1: An order that imposes a prior restraint on speech must be subject to immediate appellate review.

“[I]mmediate appellate review” of prior restraints is constitutionally required. National Socialist Party, 432 U.S. at 44. See also Puruczky; Connor Group; Int’l Diamond, supra.

This principle is fully applicable here. Puruczky and Connor Group involved injunctions entered in response to libel lawsuits, just as this case does. National Socialist Party famously involved Nazis marching in Skokie, Illinois. Nat’l Socialist Party, 432 U.S. at 43–44; see also Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978). If Nazis who want to march in a neighborhood populated with thousands of Holocaust survivors are entitled to immediate appellate review of an injunction against their speech, then citizens criticizing a police officer must be entitled to the same.

This constitutional requirement flows naturally from courts’ recognition of the dangers of prior restraints. “A prior restraint . . . has an immediate and irreversible sanction” that is unlike any other remedy a court may impose, including “a judgment in a defamation case” or even “[a] criminal penalty,” because all other sanctions are “subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative” for other remedies. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

That “panoply of protections” does not exist for a prior restraint, which is why “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Id.Prior restraints “fall on speech with a brutality and finality all their own.” Id. at 609 (Brennan, J., concurring in reversal of prior restraint).

More broadly, every day that a prior restraint remains in place is a First Amendment violation, and “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). “‘Where . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.'” CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citation omitted); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006) (endorsing this principle as requiring “expeditious[]” decisionmaking as to restraints on First Amendment rights, there the right of access to court records); Doe v. Pub. Citizen, 749 F.3d 246, 272–73 (4th Cir. 2014) (same); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (same), superseded on other grounds, as stated in Bond v. Utreras, 585 F.3d 1061, 1068 n.4 (7th Cir. 2009). And of course this principle applies beyond the mainstream media, and covers social media users as well.

{Art. I, § 11 of the Ohio Constitution “guarantees to ‘[e]very citizen’ the right to publish freely his or her sentiments on all subjects, regardless of that citizen’s association or nonassociation with the press.” Wampler v. Higgins, 93 Ohio St. 3d 111, 121 (2001). “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Citizens United v. United States, 558 U.S. 310, 352 (2010) (internal quotation marks omitted). “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U.S. 444, 452 (1938); see also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1092 (Fla. Dist. Ct. App. 2014) (“Angry social media postings are now common. . . . But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk,” and are just as fully protected by the First Amendment).}

The injury inflicted by prior restraints is thus not remediable by vacatur or reversal of a prior restraint at a distant future date after final judgment, especially where (as here) the prior restraint relates to a public official and his conduct in official and court proceedings. The parties and the public have a right to speak contemporaneously, not merely retrospectively, both about public officials and about court proceedings. See Bridges v. California, 314 U.S. 252, 268 (1941) (“[P]ublic interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist.”); Doe v. Pub. Citizen, 749 F.3d 246, 272 (4th Cir. 2014) (acknowledging the harms of “delayed disclosure” with respect to court proceedings). Immediate appellate review is thus critical to make sure that the injunction does not cause such a loss of First Amendment freedoms.

The logic of these cases turns on the commands imposed by the First Amendment—commands that override any contrary state procedural distinctions that would limit immediate appellate review. And of course both this Court and the U.S. Supreme Court have recognized that “Temporary restraining orders,” no less than “permanent injunctions,” “are classic examples of prior restraints” that are fully subject to First Amendment constraints. Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, ¶25; Alexander v. United States, 509 U.S. 544, 550 (1993).

Yet the First District took a sharply different approach; it concluded that neither the U.S. Supreme Court’s Skokie decision nor the Second and Eleventh Districts’ decisions applied here, simply because this case involved a temporary restraining order. M.R., 1st Dist. No. C-200302 at ¶9. The First District did not acknowledge this Court’s or the U.S. Supreme Court’s treatment of temporary restraining orders as prior restraints, nor did it explain why the First Amendment rule of immediate appellate review of prior restraints would be limited by the TRO/preliminary injunction distinction.

This Court’s review is necessary to set forth a uniform rule on when immediate appellate review of prior restraints is necessary.

Conclusion

Prior restraints on speech are rarely constitutional; and to make sure that unconstitutional prior restraints suppress speech for as short a time as possible, both the U.S. Supreme Court and Ohio courts have required that such restraints be subject to immediate appellate review. The injunction in this case is a prior restraint, and thus subject to immediate appellate review; indeed, it is a content-based prior restraint, and one that is not limited to libelous speech or to speech that falls within a First Amendment exception. This Court should step in to correct the serious First Amendment violation in this case, and resolve the disagreement among the Courts of Appeals on whether the normal First Amendment rules apply to temporary restraining orders.

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President Joe Biden’s inauguration speech was full of calls for “unity” to a bitterly divided nation. But mixed in with a positive acknowledgment that “politics need not be a raging fire destroying everything in its path” were a politician’s traditional calls to unify around favored policy proposals. And among those proposals is a $1.9 trillion pandemic “relief” package that might unite Americans the way a sinking ship brings passengers and crew together as they await their fate.

“We must set aside the politics and finally face this pandemic as one nation,” Biden urged in his speech. But there’s no way to set aside politics when government acts, since political concerns inevitably determine how governments use their power, including in terms of gathering and spending other people’s money.

And what a lot of other people’s money the new president has in mind! On top of the trillions already spent under the Trump administration to offset the pain of lockdowns or just to buy votes, the new Biden administration wants to distribute $1,400 per person “recovery rebates,” give hundreds of billions to state and local governments, underwrite a national vaccination program, subsidize government schools reopening, and offer more billions to small landlords and childcare providers. Not counting the burden of hiking the national minimum wage to $15 an hour, which will fall on workers priced out of jobs and on frustrated employers, the total cost is an estimated $1.9 trillion.

The proposed spending is supposed to help people. The money is sold as s lifeline to a population hammered by social distancing and by government-mandated lockdowns as it weathers waves of COVID-19. But the money, whether spent wisely or poorly, has to come from somewhere. For a government that was spending well beyond its means long before anybody heard of COVID-19, that means the money has to be borrowed.

“In light of the enactment of the year-end spending and COVID relief deal, we estimate the deficit will total $2.3 trillion for Fiscal Year (FY) 2021,” the Committee for a Responsible Federal Budget noted earlier this month. “This would be lower than the $3.1 trillion deficit in FY 2020 but at an estimated 10.4 percent of Gross Domestic Product (GDP), it would be higher than any other time in recorded history outside of World War II.”

It’s been years since the federal government balanced its books, so deficits add to debt accumulated long before the pandemic. As of January 18, total debt held by the U.S. government is about $27.8 trillion, according to the U.S. Treasury Department, up from an already astonishing $23 trillion at the end of 2019. By contrast, U.S. Gross Domestic Product at the end of 2020 was $21.17 trillion, according to the government’s Bureau of Economic Analysis.

Deficits and debt of that size affect the economy. Back in September, when federal pandemic-related spending was already mind-boggling but had yet to reach its full extent for the year, the Congressional Budget Office (CBO) projected the estimated impact. “From fiscal year 2020 through 2023, for every dollar that it adds to the deficit, the legislation is projected to increase GDP by about 58 cents,” the CBO pointed out, indicating that, at best, taxpayers would lose 42 cents on every dollar spent. “In the longer term, the legislation will reduce the level of real GDP, CBO estimates.”

“The legislation will increase federal debt as a percentage of GDP, and in the longer term, CBO expects that increase to raise borrowing costs, lower economic output, and reduce the income of U.S. households and businesses,” the CBO added. “In addition, the higher debt—coming at a time when the longer-term path for debt was already high—could eventually increase the risk of a fiscal crisis or of less abrupt economic changes, such as higher inflation or the undermining of the U.S. dollar’s predominant role in global financial markets.”

To be fair, the U.S. isn’t the only country to have been spending beyond its means and to have piled massive debt on top of a large pre-existing bill.

“The pandemic has exacerbated the risks associated with a decade-long wave of global debt accumulation,” the World Bank observes in its latest Global Economic Prospects report, published this month. “Debt levels have reached historic highs, making the global economy particularly vulnerable to financial market stress.”

“The pandemic-induced global recession has already reversed a decade or more of per capita income gains in roughly 30 percent of emerging market and developing economies (EMDEs),” the report adds. “By 2025, global output is still expected to be 5 percent below the pre-pandemic trend—a cumulative output loss that is equivalent to 36 percent of the world’s 2019 output.”

That’s a huge hit not just for Americans, but for a world in which governments were already borrowing against people’s economic futures in order to finance current expenditures. Pandemic-related spending—such as last year’s trillions in “stimulus,” and Joe Biden’s $1.9 trillion relief package—are proposed as means for alleviating suffering now. But, since the money they spend doesn’t exist, they can only do so by making us poorer in the future.

At the end of 2020, the CBO returned to the problem of federal spending beyond the government’s means with a report exploring options for reducing the deficit from 2021 through 2030. The report covered numerous ideas for reining-in spending and for hiking taxes, all with the goal of closing the gap between revenues and expenditures. Nowhere in the report was there a suggestion for another $1.9 trillion in borrowing and spending to offset pandemic restrictions; its numbers depended, instead, on the assumption that the economy will produce and employ to generate wealth.

Even so, the cost of just paying interest on the national debt is separately projected by the CBO to rise from 1.6 percent of GDP in 2020 to 8 percent in 2050. That’s without accounting for massive additional “relief” spending, such as advocated by President Biden, to offset the cost of forcing businesses to close and people to restrict their movements. Not only do economic forecasts predict that the economy of the future will be smaller than it would have been, much of it is already allocated to pay for past spending.

Unity can be a good thing. But Biden’s $1.9 trillion dollar vision of unity builds on an unfortunate history of forcibly shared economic pain. Instead of making everybody go down with the ship, he might try bringing people together for a voluntarily shared vision.

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When The Washington Post published a 2019 campaign trail feature about then-presidential hopeful Kamala Harris’ close relationship with her sister, it opened with a memorable anecdote in which Harris bizarrely compared the rigors of the campaign trail to…life behind bars.

And then proceeded to laugh—at the idea of an inmate begging for a sip of water.

It was an extremely cringeworthy moment, even by the high standards set by Harris’ failed presidential campaign. But now that Harris is vice president, that awful moment has seemingly vanished from the Post’s website after the paper “updated” the piece earlier this month.

Here’s how the first seven paragraphs of that article, originally published by the Post on July 23, 2019, and bylined by features reporter Ben Terris, originally appeared:

It was the Fourth of July, Independence Day, and Kamala Harris was explaining to her sister, Maya, that campaigns are like prisons.

She’d been recounting how in the days before the Democratic debate in Miami life had actually slowed down to a manageable pace. Kamala, Maya and the rest of the team had spent three days prepping for that contest in a beach-facing hotel suite, where they closed the curtains to blot out the fun. But for all the hours of studying policy and practicing the zingers that would supercharge her candidacy, the trip allowed for a break in an otherwise all-encompassing schedule.

“I actually got sleep,” Kamala said, sitting in a Hilton conference room, beside her sister, and smiling as she recalled walks on the beach with her husband and that one morning SoulCycle class she was able to take.

“That kind of stuff,” Kamala said between sips of iced tea, “which was about bringing a little normal to the days, that was a treat for me.”

“I mean, in some ways it was a treat,” Maya said. “But not really.”

“It’s a treat that a prisoner gets when they ask for, ‘A morsel of food please,’ ” Kamala said shoving her hands forward as if clutching a metal plate, her voice now trembling like an old British man locked in a Dickensian jail cell. “‘And water! I just want wahtahhh….’Your standards really go out the f—ing window.”

Kamala burst into laughter.

It should go without saying that choosing to run for the most powerful political office in the world is absolutely nothing like being behind bars—and getting to squeeze in a morning SoulCycle session before sitting down for an interview with a national newspaper is not remotely the same as dying of thirst. None of this is funny.

The scene was a brilliant bit of reporting and writing because it did what few political features can accomplish: showing, rather than telling, something about the candidate at the center. Harris made her name as a prosecutor, and her track record includes defending dirty cops and laughing off criticism of her history of throwing poor parents in jail when their kids missed school. The Post profile provided a mask-slipping moment that seemed to perfectly capture a warped sense of justice and lack of basic human dignity—all in just a few hundred words.

We’ve republished that passage here because you won’t find it on the Post‘s website any longer.

The rest of the profile is still there, but with a new opening anecdote (presumably authored by political reporter Chelsea Janes, whose byline has been added to the piece and who has authored several fawning pieces about Harris this week) that compares now-Vice President Harris’ relationship with her sister to that of former President John F. Kennedy and his brother Robert. After the opening section, the rest of the piece appears nearly identical to the version originally published in July 2019.

But what happened to the old version? The headline for that 18-month-old article still appears on Terris’ page on the Post website with the original date it was published, but clicking the link redirects users to the new version published this month—the version that omits Harris’ awful commentary about campaigns and prisons.

Other links to the original piece also now redirect to the sanitized version. Reason‘s Elizabeth Nolan Brown, for example, highlighted the Terris profile of Harris on the July 24, 2019, version of the Reason Roundup. Click through that link now, however, and you won’t find Harris’ inartful “joke” about inmates dying of thirst.

The original quote might have demonstrated something about Harris—indeed, it suggests why her presidential primary campaign flopped so hard—but its disappearance suggests something about the Post, and about the way traditional political media is preparing to cover Harris now that she’s one heartbeat away from the presidency.

Reason asked the Post why the Harris feature was updated, and if the paper could point to other examples of “updating” political features to remove details that show officials in an unflattering light.

As part of an online series rolled out before President Joe Biden’s and Harris’ inauguration, “we repurposed and updated some of our strong biographical pieces about both political figures,” Molly Gannon Conway, the Post‘s communications manager, told Reason via email on Thursday. “The profile of Maya Harris was updated with new reporting, as noted online, using the existing URL. The original story remains available in print.”

Conway did not include any other examples of content that had been similarly updated. She also did not respond to a question about whether Harris’ team had requested the change. The vice president’s office did not return a request for comment.

The Post, of course, can do whatever it pleases with its own content. It can update or rearrange or delete any detail in any story at any time.

Still, the decision to remove that specific passage—and to replace it with a puffy opening about how Maya has “been a constant companion along Kamala Harris’s journey into history”—is questionable at best. Yes, Harris’ inauguration as America’s first female vice president is historic, but that’s no reason to ignore or erase her troubling history as a cop and politician. It also raises questions about the Post’s approach to covering Harris going forward. At a time when legacy publications are increasingly seen as playing for one political “team” or the other, this type of editorial decision will not do anything to fix that perception—is there any doubt that the Post would not have treated an inartful comment from Mike Pence in the same way?

Intentional or not, the memory-holing of the older version of the piece sends a message that the Post is willing to pave over its own good journalism to protect a powerful politician from her own words.

Luckily, nothing is ever really gone on the internet.

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“Instacart is firing every employee who voted to unionize,” declared The Verge yesterday, in a tweet that’s since gotten more than 13,500 retweets and 12,100 likes.

“Deleting my @Instacart app right now,” responded actor Steven Pasquale in one typical response. “There are few companies as evil as Instacart,” author Dan Price opined in another.

I’ll hazard to guess that they hadn’t clicked through to The Verge‘s full article. If they had, they would see how dishonestly the publication (and others) framed the Instacart story in an attempt to make it seem like employees were fired in retaliation for unionizing.

It’s not that The Verge‘s statement about fired union employees is factually wrong—all 10 Instacart employees in Skokie, Illinois, who voted in early 2020 to unionize have been fired, according to the United Food and Commercial Workers Local 1546.

But Instacart also fired about 1,990 other employees, too.

In fact, Instacart is letting go around 20 percent of its entire part-time, in-store shopper staff, in the midst of changes to the way the company operates.

Framed in another biased way, we could say only 0.5 percent of the in-store shoppers that Instacart let go were unionized. It’s probably most cleareyed, however, to view Instacart’s recent round of firings as having nothing to do with worker unionization, despite the weird efforts of some disingenuous journalists to portray them that way.

Business has been booming for grocery delivery services during the pandemic, but—as Instacart noted in this recent blog post, and CNN reported on last summer—grocery retailers increasingly offering their own online shopping and curbside pickup services has forced Instacart to shift its business model somewhat.

“By late April, Instacart said it had hired 300,000 independent contractor ‘full-service shoppers’ to meet the surge in customer demand, and the company said it plans to add another 200,000 over the next couple of months,” CNN noted in July. “However, some of its in-store shoppers, who are part-time employees of Instacart, are losing their jobs [as a] result of at least two of Instacart’s store partners, Aldi and Sprouts, opting to replace Instacart’s in-store shoppers, as necessary, with their own employees.”

FREE MINDS

How the U.S. covered up the murder of Saudi journalist Jamal Khashoggi.

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A Seattle-area school district is suing to get its teachers back in classrooms. The Bellevue School District “asked a King County Superior Court judge to consider a motion of a temporary restraining order Thursday, to force Bellevue educators to provide in-person instruction,” reports KOMO News.

A King County Superior Court Ex Parte Commissioner denied the restraining order saying the teachers are able to provide instruction to the students via remote learning.

In the court order, the commissioner wrote, “The proof does not show that defendant’s members are refusing to work, as defendant’s members continue to be ready and willing to provide remote and other learning/teaching which has been acceptable to plaintiff and is acceptable to state educational authorities.”

A King County Superior Court Judge will hold full hearing on Jan. 28.

QUICK HITS

• President Joe Biden will “direct agencies to conduct a review of federal workers earning less than $15 an hour and develop recommendations for raising their wages.”

• Biden is also slated to repeal a rule that prohibits U.S. aid from going to foreign groups that provide, promote, or refer women to abortion services.

• How Donald Trump’s Patriot Party could become a political force.

• Washington, D.C.’s “unscientific vaccination plan pits the elderly against the obese,” writes Robby Soave.

• Biden looks slated to carry on Trump-style economic protectionism.

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