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Yesterday, federal prosecutors announced a prosecution of Xinjiang Jin (also known as Julien Jin) for “allegedly participat[ing] in a scheme to disrupt a series of [Zoom] meetings in May and June 2020 held to commemorate the June 4, 1989 Tiananmen Square massacre in the PRC.” The meetings “were organized and hosted by U.S-based individuals.”

Jin was a Zoom employee who was legitimately involved with Zoom’s compliance with Chinese law as to Zoom’s activity in China (much of which is lawful under U.S. law). But, according to the criminal complaint, he worked with various people associated with the Chinese government to stop various U.S.-based meetings, and to surveil participants in the meetings, including by fraudulent means: The coconspirators allegedly used false names to “infiltrat[e] the meetings to gather evidence about purported misconduct occurring in those meetings,” and

created fake … accounts in the names of others, including PRC political dissidents, to fabricate evidence that the hosts of and participants in the meetings to commemorate the Tiananmen Square massacre were supporting terrorist organizations, inciting violence or distributing child pornography. The fabricated evidence falsely asserted that the meetings included discussions of child abuse or exploitation, terrorism, racism or incitements to violence, and sometimes included screenshots of the purported participants’ user profiles featuring, for example, a masked person holding a flag resembling that of the Islamic State terrorist group.

Jin used the complaints as evidence to persuade [Zoom] executives based in the United States to terminate meetings and suspend or terminate the user accounts of the meeting hosts.

Also,

[People’s Republic of China] authorities took advantage of information provided by Jin to retaliate against and intimidate participants residing in the PRC, or PRC-based family members of meeting participants.  PRC authorities temporarily detained at least one person who planned to speak during a commemoration meeting.  In another case, PRC authorities visited family members of a participant in the meetings and directed them to tell the participant to cease speaking out against the PRC government and rather to support socialism and the [Chinese Communist Party].

Now this is obviously bad behavior, but here’s what struck me as odd:

1. Jin (who is a Chinese citizen living in China, and who I assume will therefore never actually stand trial in the U.S.) is not being prosecuted for fraud.
2. He is not being prosecuted for some crime of wrongfully assisting a foreign government to suppress speech in the U.S. (which I think could be made a crime, but apparently hasn’t been).
3. He is not being sued for libel for participating in a scheme to get other people’s events canceled through lies.

Instead, he’s being charged with conspiracy to commit cyberstalking, on the theory that his and his coconspirators’ actions, were taken “with the intent to harass and intimidate” and caused “substantial emotional distress” (18 USC § 2261A(2)(B)). (He’s also being charged with conspiracy to transfer another person’s means of identification, but with the intent to commit cyberstalking, so the “substantial emotional distress” claim is critical there, too.)

Here are the allegations that seem to most specifically tie the long factual discussion in the affidavit to the criminal charges:

50. [An] anti-CCP demonstrator who currently resides in Australia (the “Australian participant”) received a WeChat call from his/her father in the PRC in April 2020. During the call, an MPS [Ministry of Public Security] officer who was with the participant’s father stated, in sum and substance, that the participant needed to stop anti-CCP activities, provide the officer with the passwords to the participant’s social media accounts, and return to the PRC. The Australian participant refused and recorded the call. During the May 31, 2020 meeting on Company-1’s platform discussed above, the Australian participant discussed that call involving the MPS. On or about June 1, 2020, the Australian participant’s parents received an electronic message from the MPS, which message contained a screenshot showing the Australian participant in the May 31, 2020 meeting on Company-1’s platform. The Australian participant’s father then sent the participant an electronic message asking whether the participant wanted his/her parents “dead.” The Australian participant has stated, in sum and substance, that he/she was distressed by the pressure exerted by PRC officials on the participant and the participant’s family, particularly after the May 31, 2020 meeting on Company-1’s platform.

88…. [T]he termination of the June 4 Meeting has caused substantial emotional distress to participants in the meeting. For example, one of the speakers at the June 4 Meeting (“Speaker-1”) reported sending a message on or about June 3, 2020 via WeChat to his/her father’s WeChat account indicating that Speaker-1 was going to participate in an event about the Tiananmen Square massacre. After sending the message, Speaker-1 received a message on his/her WeChat account that Speaker-1’s account had violated the user agreement and was shut down. Additionally, approximately two weeks after the June 4 Meeting, the local MPS called the mobile telephone of Speaker-1’s father in the PRC. During the call, the MPS instructed Speaker-1’s father to tell Speaker-1 to stop speaking out against the CCP and to support socialism and the CCP. The MPS also inquired about Speaker-1’s life in the U.S. and asked when Speaker-1 intended to return to the PRC.

89. As discussed above, other PRC government actions related to the pro-democracy discussions on the Company-1 platform in May and June 2020 also caused significant emotional distress to other participants, including to the Australian participant.

As best I can tell, the only part of Jin’s broader speech-suppressive scheme that us actually the basis for the prosecution is his conspiracy with Chinese authorities to pressure people (one Australian and one American) to stop speaking out against the government, using those people’s families in China as leverage. (Note that there is a separate prong of § 2261A, subparagraph (2)(A), that prohibits threats of violence; but the government brought it under the substantial distress prong, (2)(B), presumably to avoid having to prove that actual threats of violence were involved.)

Perhaps that fits, even if in attenuated way, with the logic of § 2261A, on the theory that Jin helped “surveil[]” anti-Chinese events in a way that led to implicit threats of violence against Chinese relatives, and thus caused “substantial emotional distress” (and was done with the “intent to intimidate”). But that’s far removed from the fraudulently obtained cancellation of the Tiananmen Square commemorations.

To be sure, the first half of paragraph 88 starts out focused on the cancellation: “the termination of the June 4 Meeting has caused substantial emotional distress to participants in the meeting.” But I assume that it can’t be referring to the very fact of the cancellation: Unpleasant as it is to have one’s speech curtailed this way, I don’t think that it causes sufficiently “substantial emotional distress” to make the cancellation as such be a federal felony. (Imagine the Chinese government weren’t involved, and the cancellation just happened through public pressure, e.g., private people pressured some private company to cancel an event hosted on its physical property—even if that might be condemned as intolerant, surely it’s not a criminal violation of § 2261A.) Instead, the rest of the paragraph seems to tie the cancellation back to the coercive pressure on some of the participants, stemming from the Chinese government’s pressure on their families.

So however this prosecution might have been billed, I can’t see the government’s theory offering real legal protection against pressure on Zoom to cancel anti-Chinese-government events—or even against false allegations to Zoom that are aimed at canceling such events. (Note that Jin is apparently still in China, and is highly unlikely to be extradited here; so I expect that none of the claims are going to be really tested in this case.)

The prosecution might help signal that the U.S. government will try to go after people who conspire with the Chinese government to threaten people’s families as a means of suppressing anti-Chinese-government speech (a worthy cause, but even there I’m not positive that § 2261A is the proper vehicle for that). But any broader protection against “disrupting video meetings” expressing such views would require, I think, a different legal theory.

[* * *]

I should note that I’ve long argued that 18 U.S.C. § 2261A is unconstitutionally vague and overbroad, as applied to speech—I don’t think the government can just criminalize repeated speech that is intended to “harass” (with no clear definition of the term) and would reasonably be expected “to cause substantial emotional distress.”

That statute would literally cover the speech found to be constitutionally protected in cases such as Hustler Magazine v. Falwell and Snyder v. Phelps, as well as a wide range of other harsh criticism of people, so long as a prosecutor and jury concludes that the criticism was ill-intentioned. (A great deal of harsh and broadly distributed criticism is, after all, likely “to cause substantial emotional distress,” even if it consists of opinion or accurate factual allegations.) Several appellate decisions disagree with me on that (see, e.g., here), but the matter isn’t settled, I think; and a couple of district court decisions (see, e.g., here and here) have recognized the First Amendment problems of § 2261A, though in as-applied challenges.

But here I’m not saying that Jin’s actions were constitutionally protected—only that it’s not clear to me how far § 2261A can go to actually protect American speakers against foreign stratagems to restrict their speech (at least unless those stratagems involve threats against speakers’ families back in the foreign country).

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There is a consistent apocalyptic strain in modern environmentalism. This is a feature and a bug. On the one hand, sounding ecological alarms has, at times, seemed to spur policy responses. On the other hand, when exaggerated appeals are proven false, it can undermine environmentalists’ credibility and discourage environmental concern.

Apocalyptic environmentalism is the primary target of Michael Shellenberger’s Apocalypse Never: Why Environmental Alarmism Hurts Us All. This book, which I reviewed for the Winter issue of Regulation, is very effective at debunking alarmist scares and identifying actual environmental problems, and is appropriately bullish economic and technological development. This makes it worth a read. Unfortunately, it is unduly focused on the promise of nuclear power to deliver a low-carbon future, and spends too little time exploring what sorts of policies and institutional reforms are most conducive to technological innovation and ecological conservation.

Here is a taste of my review:

Growth and technology are often conceived as environmental problems. In a famous formulation, humanity’s environmental effect is the product of population, affluence, and technology, with each variable magnifying the effect of the others. Shellenberger challenges this formulation, arguing that technological advance and the wealth to deploy it are essential to the preservation of nature and controlling pollution, while still making room for people. Economic growth and technological advance have the potential to increase humanity’s ecological footprint, but they also can increase resilience to ecological threats and make it easier to meet human needs with less ecological effect. “For poor nations, creating the modern infrastructure for modern energy, sewage, and flood water management will be a higher priority than plastic waste, just as they were for the United States and China before them,” Shellenberger writes. In much of the world, industrialization, urbanization and the proliferation of modern technology are more environmental boon than bane. Increased agricultural productivity and energy density leave more room for nature and help generate the wealth necessary for environmental improvements. Those of us in developed nations should “feel gratitude for the civilization we take for granted, put claims of climate apocalypse in perspective, and inspire empathy and solidarity for those who do not yet enjoy the fruits of prosperity.” More plainly, “rich nations must support, not deny, development to poor nations.” . . .

Apocalypse Never is clearly intended to provoke as much as persuade. Shellenberger is correct that economic development and technological advance are essential for successful environmental conservation, and he properly excoriates those environmental activists who obstruct such developments. Yet, the book provides minimal exploration of the sorts of policies and institutional arrangements necessary for such changes to take place.

Economic growth and innovation are necessary, but insufficient, for continued environmental progress. Neither is automatic. The broader legal and institutional framework in which technologies are developed and deployed often determines
whether they are used in ways that enhance or undermine ecological sustainability. The environmental horrors of former Soviet countries were not due to a lack of industrialization or urbanization. Nor are the ecological problems in developing nations solely a consequence of poverty. Legal institutions, and the incentives they create, channel human ingenuity. Fulfilling Shellenberger’s vision of a “high-energy, prosperous world with flourishing wildlife” will ultimately require attention to such concerns. It cannot be just willed into existence. Shellenberger has stood athwart the visions of apocalypse, yelling stop. The next step is to chart the course for a new destination.

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From Magistrate Judge Mac McCoy’s opinion in Johnson v. Ave Maria School of Law, filed late last year but just posted on Westlaw:

Plaintiff Christopher Johnson filed an Affidavit of Indigency on September 4, 2019, which the Court construes as a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 …. Plaintiff seeks leave to proceed in forma pauperis, which is without pre-payment of fees. The Court has carefully reviewed the Complaint and the Affidavit of Indigency under 28 U.S.C. § 1915 and relevant pleading standards. Based upon that review, the Court determines that Plaintiff must be required to amend the Complaint….

First, Plaintiff has filed an impermissible shotgun pleading replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. Plaintiff’s Complaint is 57 pages long and contains 129 separate paragraphs.. A multitude of these paragraphs consist of incoherent, conclusory statements. For example, Plaintiff alleges Defendant, the law school he attended, Ave Maria Law:

is abusing their power, abusing their authority, participating in intimidation, conspiring to ruin reputations, creating master-slave relationships, using classical programming and/or mind control techniques, conspiring against humans and the State of Florida and possibly the U.S. Government for political gains, financial gains; and power, operating a criminal organization by hiding crime, obstructing justice and harboring and/or aiding and abetting criminals, treason and conspiring to make others commit treason, negligence, fraud, violations of the Florida and U.S Constitution, creating a hostile environment, harassment, psychological., spiritual and emotional abuses, creating and tolerating hate speech, failure to report a crime, failure to report crimes, failure of care of duty and care of safety, obstruction of justice, and possibly due to the above writing and Ave Law’s actions other crimes and/or violations allowed under Civil law. Ave Maria Law School would not mediate my issues in a respectable or equal manner while attending, and after leaving would not mediate at all, committing fraud by not practicing what they preach or teach, by having a mediation clinic and then being told to read the Bible, which says “Ask and you shall receive,” but I did not receive….

The court is silent on whether the heavenly Father gave Johnson the Holy Spirit, which I understand is what would be received by those who ask for it. (For the court’s rejection of the amended complaint as well, see here.)

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Should the COVID-19 lockdowns be replaced with a more targeted strategy?

On October 4, 2020, epidemiologists from Harvard, Oxford, and Stanford authored the Great Barrington Declaration, which advocates for ending the COVID-19 lockdowns and turning to a strategy of protecting elderly and vulnerable populations while allowing everyone else to resume their normal lives.

Critics of the Declaration issued a counter-petition called the “John Snow Memorandum,” stating, “Any pandemic management strategy relying upon immunity from natural infections for COVID-19 is flawed. Uncontrolled transmission in younger people risks significant morbidity and mortality across the whole population.”

In an online Soho Forum debate on December 13, Martin Kulldorff, a Harvard biostatistician and epidemiologist and coauthor of the Great Barrington Declaration, debated Andrew Noymer, an associate professor of population health and disease prevention at the University of California, Irvine, who signed the John Snow Memorandum.

It was an Oxford-style debate, and in this case, the contest ended in a tie: Both debaters convinced 5.56 percent of audience members to switch to their side over the course of the debate.

The Soho Forum, sponsored by Reason Foundation, is a monthly debate series typically held at the SubCulture Theater in Manhattan’s East Village, but which has gone remote during the pandemic.

Narrated by Nick Gillespie. Edited by John Osterhoudt and Regan Taylor.

Photos: Travis Wise/Flickr/Creative Commons; Travis Wise/Flickr/Creative Commons; Travis Wise/Flickr/Creative Commons; Travis Wise/Flickr/Creative Commons; Steve Sanchez/Sipa USA/Newscom; David Cliff/ZUMAPRESS/Newscom; Johnny Louis/JL/Sipa USA/Newscom; tMartha Asencio Rhine/ZUMAPRESS/Newscom; Dinendra Haria/ZUMAPRESS/Newscom; Chris Urso/ZUMA Press/Newscom; JIM RUYMEN/UPI/Newscom; John Marshall Mantel/ZUMA Press/Newscom

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Last week, President-elect Joe Biden confirmed rumors he would pick Tom Vilsack to lead the U.S. Department of Agriculture (USDA). Vilsack served in the same role for nearly the entirety of the Obama administration.

Biden said this week that he had to talk a reluctant Vilsack into returning to the job. Many wish Biden hadn’t done so; Vilsack is a divisive choice.

“I wanted someone new,” said John Boyd, president of the National Black Farmers Association and a Biden supporter and transition advisor.

Darvin Brantledge, a Missouri farmer who raises cattle and grows corn and who also supported Biden in the 2020 election, told Tulsa’s KOSU he’s “not impressed with Vilsack,” who he says promotes “more corporate control” of agriculture.

In the same KOSU piece, a farmer who supported Trump in the election was equally nonplussed by Biden’s selection, citing Vilsack’s support for stricter regulations during the Obama administration.

These and other critics are right.

Vilsack has a compelling personal story. An orphan who was adopted as an infant, Vilsack became a lawyer, then a mayor, and eventually served as Iowa’s governor before landing the top job at USDA when President Barack Obama first took office.

Under his leadership at USDA—as I detail in my stocking-stuffer book, Biting the Hands that Feed Us—farm subsidies grew to record amounts. (Those cash payments grew further still under the Trump administration.)

Among many other problems, those ballooning farm subsidies encouraged growers to overproduce, which led to needless waste and environmental damage. It also drove down prices paid to farmers.

“When he exited the USDA in early 2017,” The Wall Street Journal reported this week, “the U.S. farm economy was on the skids, with net farm income down 40% from a record high four years earlier because of successive bumper crops that swelled supplies and pushed down prices.”

Vilsack exited the USDA in the waning days of the Obama administration to lead the U.S. Dairy Export Council, part of the government-created entity Dairy Management, which takes money from dairy farmers—via the absolutely awful mandatory dairy checkoff program—and spends it promoting the interests of America’s largest dairies.

While Dairy Management is the brains behind the long-running “Got Milk?” ad campaign, it also wastes money in more subtle ways. As I explained in a 2017 piece on the use of checkoff funds to encourage pizza chain Domino’s to add more cheese to its pizzas and similar pointless efforts to pad corporations’ pockets, “opponents of government waste, supporters of indie pizza joints that have to compete against giants like Domino’s, groups that oppose government promotion of animal products, and opponents of dietary saturated fat continue to fume over [Dairy Management’s] activities, secrecy, and very existence.”

Many critics are lining up to pan the choice of Vilsack.

Claire Kelloway, writing for The Intercept, called Biden’s choice of Vilsack for the USDA job a symbol of “everything that’s wrong with the Democratic Party.” She singled out Vilsack’s “pro-corporate policies,” which she says help “drive rural communities away from the Democratic Party.”

Critics who argue Vilsack took credit for addressing historic USDA racism while doing little or nothing to address claims of racist practices by the agency during his time in the Obama administration—including some inside the agency—call Biden’s choice to return Vilsack to the USDA a slap in the face.

Rep. Marcia Fudge (D–Ohio), who campaigned for the top USDA job that went to Vilsack and who would have been the first Black woman to lead the agency, said this week that despite Vilsack being a “somewhat controversial” choice for the job, she’s reasonably optimistic Vilsack is willing to listen to critics.

Vilsack does have his supporters. Pork lobbyists applauded the move. Top farm lobbies, commodity farmers, supporters of wasteful ethanol subsidies, and others are pleased with the choice.

Some advocates on the left are confident Vilsack can help reverse the devastating farm-policy excesses of the Trump administration, including Trump’s awful tariffs and attacks on free trade agreements. (I hope that he does.)

But even some supporters sound tepid. While noting Vilsack’s experience, the Center for American Progress, a progressive think tank, used some variation of the expression “has the opportunity” four times in a three-paragraph statement to identify various actions the group thinks Vilsack should take. (I “have the opportunity” to win the lottery.)

Some optimism about the Vilsack pick seems wholly misplaced on its face. For example, the head of the Iowa Organic Association, Roz Lehman, said last week that Vilsack—who has an outside shot to be the longest-serving USDA secretary in history—may just be the one to shift the USDA away from “a decades-old system that maintains the status quo.”

Nay, Vilsack is evidence both of that system and that status quo.

In 2016, Democratic Party presidential nominee Hillary Clinton was rumored to be considering Vilsack to be her running mate. (Clinton ultimately picked *checks notes* someone named Tim Kaine.)

At the time, Vilsack was seen as the type of person who’s going to guide the ship, not rock the boat.

“He is solid,” a political operative said of Vilsack in 2016. “He is steady. He is experienced.”

That’s the image Vilsack’s supporters are using today, too, to characterize what he’ll bring back to the agency in 2021 and beyond.

The Center for Science in the Public Interest, which has collaborated with large corporations to promote food-safety rules that squeeze out smaller competitors without measurably improving food safety, lauded Biden’s choice of Vilsack, calling his return to the USDA a victory for “steadiness, sobriety, and sound science.”

Vilsack is probably all of those things—steady, sober, experienced, solid. And those are all character traits that have been sorely lacking during the Trump era. I get it.

But right now, the USDA needs a visionary leader who is willing to address all of what ails the agency: Out-of-control farm subsidies. Programs that are wasteful and damage the environment. Corporatism and economic protectionism. Backbreaking livestock-processing rules. Lingering systemic racism. Struggling farmers.

The USDA needs a new vision and fundamental changes. Vilsack won’t bring either.

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