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An Alberta judge has sentenced two Calgary-based street preachers and a cafe owner to “preach science” after the three were convicted of contempt of court for inciting others to violate public health orders. Court of Queen’s Bench Justice Adam Germain sentenced Artur Pawlowski to 18 months probation and a $23,000 fine ($18,620 U.S.), Dawid Pawlowski to 12 months probation and a $10,000 fine ($8,100 U.S.), and Christopher Scott to 18 months probation and a $20,000 fine ($16,190 U.S.). He said that while on probation if the men wish to continue to speak out against mask mandates they must present the other side of the argument. Germain suggested they say, “I am aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favor social distancing, mask-wearing, and avoiding large crowds to reduce the spread of COVID-19.”

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As recently as late August, Texas Gov. Greg Abbott, a Republican, said private businesses in his state were free to require that their employees be vaccinated against COVID-19. His press secretary explained that “private businesses don’t need government running their business.”

Abbott evidently reassessed that premise, because last week he issued an executive order that says “no entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer.” For anyone who genuinely cares about overweening government interference with free enterprise, Abbott’s order is just as objectionable as the pending federal rule demanding that private companies with 100 or more employees require them to choose between vaccination and weekly coronavirus testing.

Abbott likes to brag about his state’s “business-friendly climate.” But even before last week’s order, he was not prepared to let businesses decide for themselves how best to address COVID-19 hazards.

A state law that Abbott signed on June 16 says “a business in this state may not require a customer to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business.” Here is how Abbott explained his support for that law: “Texas is open 100 percent, and we want to make sure that you have the freedom to go where you want without limits.”

That position sacrifices property rights and freedom of association on the altar of an unlimited “freedom” that has never been legally recognized: a customer’s right to dictate the terms on which businesses offer products or services. By Abbott’s logic, any business that proclaims “no shirt, no shoes, no service” or sets other rules for customers is thereby violating their freedom of movement.

The June 16 law still allowed businesses to require that their employees be vaccinated. But now Abbott has eliminated that option as well.

In principle, Abbott’s order, which he asked the Texas legislature to codify, is no less outrageous than President Joe Biden’s plan to dictate employers’ vaccine policies through an “emergency temporary standard” issued by the Occupational Safety and Health Administration (OSHA). While Abbott accused Biden of “bullying” private employers, the governor is equally unwilling to tolerate deviation from the one business policy he thinks is best.

The conflict between the OSHA rule (which has not been published yet) and Abbott’s decree puts Texas businesses in an uncomfortable position. Large employers can either listen to him, risking federal fines by defying OSHA, or ignore him, risking state fines by flouting one of the governor’s “emergency” orders.

The Houston Chronicle reports that “major corporations based in Texas, including Southwest Airlines and American Airlines,” said “they would abide by Biden’s rules over Abbott’s.” What about the owners of smaller companies who have concluded that requiring vaccination makes good business sense? Abbott thinks their opinions don’t matter.

“The COVID-19 vaccine is safe, effective, & our best defense against the virus, but should always remain voluntary & never forced,” Abbott tweeted last week. But if someone is “forced” to do something whenever it is a condition of employment, all sorts of business decisions are ripe for second-guessing by politicians who deem them unfair or unreasonable.

“Texas is where liberty lives,” Abbott’s office says. “That’s why the Lone Star State leads the nation in job creation over the last 10 years and in population growth over the last 14. As the 9th largest economy among the nations of the world, Texas offers a business-friendly climate—with no corporate or personal income tax—along with a highly skilled workforce, easy access to global markets, robust infrastructure and predictable regulations.”

Those “predictable regulations” apparently include Abbott’s unilateral ban on employee vaccination requirements, which came less than two months after he said such policies would be allowed. Despite what you might think, Abbott’s idea of “liberty” clearly does not include the freedom to run your own business, unencumbered by arbitrary government edicts.

© Copyright 2021 by Creators Syndicate Inc.

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Yesterday the United States filed an application in the Supreme Court asking it to intervene in the litigation about the Texas abortion statute, S.B.8. What the Solicitor General’s office requested was for the Court to vacate the the Fifth Circuit’s stay of the district court’s preliminary injunction, and there was a suggestion the Court could go ahead and grant cert in the case.

There are many procedural complexities here. I want to explore the question of whether the United States has a “cause of action” in equity.

The position of Texas is that there needs to be a cause of action in equity but there is none. The position of the United States is that there is a cause of action—though it’s rather cagey about saying what exactly that cause of action is, and it’s more comfortable talking about federal interests.

If you want part of the bottom line it’s that Texas is wrong to say that the United States needs to have a “cause of action” in equity—equity didn’t, and doesn’t, work that way. It didn’t, and doesn’t, have causes of action in the sense that law did. (This is the subject of a draft paper that my colleague Paul Miller and I are writing for the Notre Dame Law Review’s federal courts symposium early next year, called Getting into Equity.)

But the United States is not on better ground. It misreads Grupo Mexicano and offers no limiting principles (which is a major concern in Grupo). These limiting principles are as important in equity as its powers. As Christopher Langdell said in 1883, “[A]ny one who wishes to understand the English system of equity as it is, and as it has been from the beginning, must study its weakness as well as its strength.”

Does the United States have grounds to sue in equity? The question is complex, and it may all come down to Debs, which is why that will be the main focus of this series of blog posts. But before we get to Debs, my next two posts will be about Grupo Mexicano.

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From the New York Post (Emily Crane):

[Berkeley Prof.] David Romps said Monday he was stepping down as director of the Berkeley Atmospheric Sciences Center (BASC) after claiming his faculty had refused his request to invite Dorian Abbot to speak on Berkeley’s campus.

Abbot, an associate professor of geophysics at the University of Chicago, made headlines earlier this month when he slammed the Massachusetts Institute of Technology for caving to cancel culture after a woke “Twitter mob” waged a war against him.

The geophysicist said MIT told him his lecture on climate and the potential for life on other planets was being canceled to “avoid controversy” after students and recent alumni came after him over recent arguments he’d made [criticizing race-based] admissions that were unrelated to his science lecture.

Angered by MIT’s decision, Romps said in a lengthy Twitter thread that he asked Berkeley’s faculty if they would allow Abbot to hold his lecture there instead.

Here is what appears to be that thread:

I am resigning as Director of the Berkeley Atmospheric Sciences Center (BASC) @BerkeleyAtmo. To reduce the odds of being mischaracterized, I want to explain my decision here.

Last month, the MIT Department of Earth, Atmospheric and Planetary Sciences @eapsMIT  canceled a science lecture because of the invited scientist’s political views. That scientist does excellent work in areas of interest to BASC (he visited us at our invitation in 2014).

Therefore, I asked the BASC faculty if we might invite that scientist to speak to us in the coming months to hear the science talk he had prepared and, by extending the invitation now, reaffirm that BASC is a purely scientific organization, not a political one.

In the ensuing discussion among the BASC faculty, it became unclear to me whether we could invite that scientist ever again, let alone now.

I was hoping we could agree that BASC does not consider an individual’s political or social opinions when selecting speakers for its events, except for cases in which the opinions give a reasonable expectation that members of our community would be treated with disrespect.

Unfortunately, it is unclear when or if we might reach agreement on this point.

The stated mission of BASC is to serve as “the hub for UC Berkeley’s research on the science of the atmosphere, its interactions with Earth systems, and the future of Earth’s climate.”

I believe that mission has its greatest chance of success when the tent is made as big as possible, including with respect to ethnicity, gender, age, disability, sexual orientation, religion, family status, and political ideas.

Excluding people because of their political and social views diminishes the pool of scientists with which members of BASC can interact and reduces the opportunities for learning and collaboration.

More broadly, such exclusion signals that some opinions—even well-intentioned ones—are forbidden, thereby increasing self-censorship, degrading public discourse, and contributing to our nation’s political balkanization.

I hold BASC and its faculty—my friends and colleagues—in the highest regard, and so it has been a great honor to serve as BASC’s director these past five years. But it was never my intention to lead an organization that is political or even ambiguously so.

Consequently, I am stepping down from the directorship at the end of this calendar year or when a replacement is ready, whichever is sooner.

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From Doe v. Google LLC, decided today by Judge Beth Labson Freeman:

Plaintiffs assert that Defendants have deprived them of their First Amendment rights by suspending their YouTube accounts…. Plaintiffs argue that they have pled sufficient facts to plausibly allege state action under … [the theory of government] compulsion ….

{[From an earlier decision in the same case, the background facts: -EV] Plaintiffs created eighteen channels on the YouTube platform. Plaintiffs describe their channels as “extremely controversial” “conservative news” channels that feature content about “Hunter Biden and the Ukraine scandal,” “the ongoing corruption probe,” “social media censorship,” “race relations or protests in America,” and “anonymous posts on political issues by someone identifying themselves as ‘Q.'” Plaintiffs allege that as of October 15, 2020, their channels attracted over 4.5 million subscribers and over 800 million views.}

Plaintiffs’ First Amended Complaint cites statements by U.S. Rep. Adam Schiff and Speaker of the House Nancy Pelosi and an October 2020 House Resolution, which “have pressed Big Tech” into censoring political speech with threats of limiting Section 230 of the Communications Decency Act (“CDA”) and other penalties….

For a private party’s conduct to constitute state action under a compulsion theory, it must involve “such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky (1982). To plead such a claim, a party must allege that the government “commanded a particular result in, or otherwise participated in, his specific case.” Plaintiffs must point to a “state regulation or custom having the force of law that compelled, coerced, or encouraged” the alleged private conduct. Further, a compulsion claim against a private party requires pleading “some additional nexus that [makes] it fair to deem the private entity a governmental actor in the circumstances.”

The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government “commanded a particular result in, or otherwise participated in, [Plaintiffs’] specific case.” Plaintiffs point to generalized statements from lawmakers pertaining to “coronavirus-related misinformation,” “disinformation proliferating online,” “QAnon-related speech,” and “conspiracy theories.”

None of the statements mention Plaintiffs’ names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors “commanded a particular result” in their case because “Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed ‘misinformation,’ and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did.” The Court disagrees that broad lawmaker proclamations regarding “misinformation” or “QAnon-related speech,” for example, are sufficient to show that the government “commanded” the suspension of Plaintiffs’ accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like “misinformation” or “QAnon-related speech.”

The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the content of their videos to link their removal to the broad categories of online content mentioned in the lawmakers’ statements. For example, Plaintiffs plead no facts to indicate that their videos pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 misinformation have any relevance to Defendants’ alleged conduct. Further, Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all Plaintiffs posted about these subjects, or only some of them. And none of the lawmaker statements Plaintiffs cite contain clear action items relevant to Plaintiffs’ allegations. Id. ¶ 32 (encouraging YouTube to “display messages to any users who have engaged with harmful coronavirus-related misinformation”); id. ¶ 34 (generally discussing “misconduct” related to “the division and the disinformation proliferating online”); id., Ex. F at 81 (encouraging action on the part of the FBI, intelligence community, and “all Americans”).

Plaintiffs claim that Defendants’ conduct is state action because it was in response to the threat of various government penalties—the repeal of CDA Section 230 protections, “show trials” in front of the U.S. Senate, and a DOJ antitrust suit against Google—allegedly linked to whether Defendants appropriately moderated certain types of content. The threats of penalties Plaintiffs point to are insufficient to convert private conduct into state action here. The Ninth Circuit has found that pleading “a private actor’s conduct is subject to penalties … is … insufficient to convert private action into that of the state.” Moreover, Plaintiffs fail to point to any penalties that necessarily or even likely would have followed if Defendants did not suspend their accounts. See, e.g., FAC ¶ 10 (citing a DOJ antitrust case against Google with no alleged relationship to content moderation decisions); id. ¶ 34 (discussing generally that “social media executives … will be held accountable for [their] misconduct”); id. ¶ 33 (discussing removal of CDA Section 230 protections without any clear action item or ultimatum); Opp. at 12-13 (citing cases related to congressional subpoena and investigation powers). These speculative “threats” to Defendants do not plausibly constitute “state regulation or custom having the force of law.”

Plaintiffs can point to no authority to support a compulsion theory of state action based on penalties, particularly “threats” as speculative as the ones they point to here. See, e.g., Abu-Jamal v. NPR (D.D.C. 1997) (pressure from individual members of Congress did not bring about state action because “not one of these people has any legal control over [defendant’s] actions.”); Daniels v. Alphabet Inc. (N.D. Cal. 2021) (“[S]peculative assertions about the possibility defendants will be subpoenaed to testify before Congress or exposed to some other peril if they ignore letters from Congressional representatives  do not support a theory of government action.”). Courts have declined to find state action even where government penalties are far less speculative than what Plaintiffs allege, like where a law or regulation tied to state funding applies. Blum (“[P]enalties imposed for violating the regulations add nothing to respondents’ claim of state action.”); Heineke v. Santa Clara Univ. (9th Cir. 2020); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State[.]”); see also Manhattan Comm. Access Corp. v. Halleck (2019) (“Put simply, being regulated by the State does not make one a state actor.”) Here, no law or regulation applies—in fact, the main “threat” Plaintiffs allege is the repeal of a law (Section 230 of the CDA)….

The Court also finds that Plaintiffs have not pled facts sufficient to plausibly allege the “something more” element required for a compulsion claim against a private defendant under Plaintiffs claim that they have pled facts that Defendants and the government “were jointly pursuing an unconstitutional end.” But Plaintiffs rely primarily on a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki that has no alleged relevance to Plaintiffs’ content, since it pertains to COVID-19 misinformation. Moreover, as discussed below, Plaintiffs have failed to allege facts sufficient to plead that Defendants were engaged in joint action with the government….

Plaintiffs [also] assert that there is state action under a joint action theory, pointing to a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, “We appreciate your partnership and will continue to consult with Members of Congress as we address the evolving issues around #COVID19.” …

Joint action is present where the government has “so far insinuated itself into a position of interdependence with [a private entity] that it must be recognized as a joint participant in the challenged activity.” Further, a private defendant must be a “willful participant in joint action with the state or its agents.” Joint action requires a “substantial degree of cooperative action” between private and public actors.

As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs’ channels. Since the Twitter exchange appears to be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs’ failure to plead the relevance of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube’s CEO as joint action. Plaintiffs’ theory would effectively cause companies to cease communicating with their elected representatives for fear of liability ….

Further, Plaintiffs’ allegations fail to plausibly plead a “substantial degree of cooperative action” between Defendants and the government. Based on Plaintiffs’ allegations, their content was removed through the following series of events: federal lawmakers publicly flagged general categories of content for Defendants to consider moderating and issued threats to compel Defendants to comply, Defendants independently chose what content fit into the lawmakers’ general categories, and Plaintiffs’ channels happened to be some of the content Defendants decided to remove. Courts have dismissed cases for lack of state action despite significantly more alleged cooperation between public and private actors compared to what Plaintiffs allege here. Pinhas v. Summit Health, Ltd., (9th Cir. 1989) (affirming dismissal for lack of state action in decision by private hospital pursuant to review process approved by state); Heineke (affirming dismissal for lack of state action where private actor “receives federal and state funds … conditioned on compliance with federal and state anti-discrimination laws and regulations”); Abu-Jamal (no plausible joint action at pleading stage where defendant is alleged to have a “close relationship” with the government); Jackson v. Metropolitan Edison Co. (1974) (affirming dismissal for lack of state action where defendant “was a heavily regulated, privately owned utility”); Blum (no state action with “state subsidization of the operating and capital costs of the [private] facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State”).

The cases Plaintiffs cite also indicate that far more is necessary to plead joint action than what they have alleged here. Plaintiffs cite U.S. v. Price (1966), which involved a scheme between state officers and private citizens where “[s]tate officers participated in every phase of the alleged venture: the release from jail, the interception, assault and murder. It was a joint activity, from start to finish.” Plaintiffs have failed to plead anything close to the Price scheme.    Ms. Wojnicki’s tweet about “partnership” and “continu[ing]  to consult with Members of Congress” does not suggest that government officials were involved at every step of Plaintiffs’ suspension. At most, Plaintiffs appear to allege that government officials identified categories of information Defendants should consider removing—there is no allegation that government officials were in the room or somehow directly involved in the decision to suspend Plaintiffs.

Further, Plaintiffs cite Lugar v. Edmondson Oil Co. (1982). In that case, the Supreme Court found joint action where a private party “invok[ed] the aid of state officials to take advantage of state-created attachment procedures.” In the present case, there are no allegations that Defendants invoked state or federal procedure to bring about the suspension of Plaintiffs’ accounts. Defendants merely suspended Plaintiffs from Defendants own private platform….

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