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A New Jersey homeowner is no longer facing obscenity charges for refusing to take down signs from her property that said “Fuck Biden.”

The American Civil Liberties Union of New Jersey (ACLU-NJ) announced today that a state superior court has dismissed obscenity charges against Patricia Dilascio, a resident of Roselle Park, New Jersey, at the request of the town. As Reason reported last week, a Roselle Park municipal court judge had ordered Dilascio to take down three flags from her property that said “fuck Biden,” finding that they violated the town’s obscenity ordinance. She faced fines of $250 a day for not complying.

The ordinance defines obscenity as anything that “appeals to the prurient interest; depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and lacks serious literary, artistic, political or scientific value.”

The judge’s order was roundly condemned by free speech advocates, who pointed to the Supreme Court’s landmark 1971 ruling in Cohen v. California. In that case, the Court upheld a man’s right to wear a jacket that said “fuck the draft” into a courthouse, making it clear that the First Amendment protects political expression even when it’s profane or offensive.

For example, police in Liberty, New York, arrested Willian Barboza in 2012 and charged him with 2nd-degree aggravated harassment for scrawling “fuck your shitty town bitches” on a speeding ticket. A judge later dismissed the charges, finding that Barboza was exercising his protected First Amendment rights.

Dilascio, represented by the ACLU of New Jersey, appealed the order to take down her anti-Biden flags, and the politically charged small-town kerfuffle in Roselle Park ended up being covered in The New York Times. The reaction was apparently enough that the town filed an application with a state superior court to voluntarily dismiss the charges, which the court granted.

“The continued attention garnered by the inappropriate display and the escalating costs to the taxpayers of continuing to litigate the matter causes far greater harm to the Borough, as a whole, than good,” the town said in a statement.

The ACLU of New Jersey applauded the town’s decision to drop the fight.

“The First Amendment exists specifically to make sure people can express strong opinions on political issues—or any other matter—without fear of punishment by the government,” ACLU-NJ executive director Amol Sinha said in a press release. “Today’s decision confirms that our position was correct: Roselle Park had no grounds to issue fines for a political sign and the town’s use of its obscenity ordinance infringed upon fundamental rights protected by the First Amendment. It was an uncomplicated case.”

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In a meeting with Iraqi Prime Minister Mustafa al-Kadhimi on Monday, President Joe Biden announced that the U.S. combat mission in Iraq would draw to a close by the year’s end. At face value, the move sounds much like Biden’s push to withdraw all American troops from Afghanistan by August 31.

But the devil’s in the details, and a closer look reveals that these troops won’t be leaving Iraq. Rather, the Pentagon and other administration officials say they will remove a small number of the 2,500 American soldiers in Iraq, and will reclassify on paper the roles of those who remain. They won’t be fighting anymore; they’ll be “training and advising” the Iraqi Security Forces. When quizzed, White House Press Secretary Jen Psaki wouldn’t say how many American troops would stay in Iraq—signaling that there may not even be a meaningful drawdown, let alone a full departure.

What could’ve been a promising end to another bloody theater of U.S. involvement in the Middle East is actually an anticlimactic maintenance of the status quo. Held against Biden’s Afghanistan withdrawal, the Iraq option seems even less sensible. If the president feels it’s time for Afghans “to decide their future and how they want to run their country,” and if he questions the sense in leaving American troops in Afghanistan where their lives are at risk, why isn’t he applying that logic to Iraq?

Dan Caldwell, senior adviser to Concerned Veterans for America and himself a veteran of the Iraq War, says an American troop presence in Iraq “is not required for our safety or conditions or prosperity,” nor will it “fundamentally alter the direction in which Iraq is heading.”

American troops began fighting the Islamic State in Iraq and Syria in 2014, leading to the group’s territorial defeat in 2019. The New York Times reports that U.S. officials maintain “there are no combat troops” in Iraq, but concede that “a small number of U.S. Special Operations Forces serving as advisers and trainers occasionally accompany Iraqi counterterrorism forces on combat missions against Islamic State fighters.” Beyond this, proponents of involvement say the U.S. needs to counter the threats of Iran and Iran-backed militias. The mission isn’t yet over, and the U.S. has invested so much money and manpower up to this point, so it’s too soon for American forces to fully depart. So goes the forever war logic, and so goes the justification for staying entangled in Iraqi affairs.

Caldwell notes that leaving American boots on the ground, no matter the capacity they nominally fill, means putting them in harm’s way. “American service members in Iraq will still likely be attacked frequently by rockets fired by Iraqi militias,” he says, which “will not…make the distinction between combat and non-combat troops and will continue to view American forces in the country as easy targets.”

“When I left Iraq from Al Asad Airbase in 2009,” Caldwell continues, “the feeling was that the war was over and that we would not be in the country much longer. However, 12 years later, there are still American troops at Al Asad and they are under frequent attack.”

Rockets hit the base in early July, proving that maintaining even a small U.S. troop presence in Iraq—reduced drastically from a December 2007 peak of 170,000 soldiers—carries risks. Though no American soldiers were injured or killed in that attack, it’s only a matter of time before they are. Those lives are just as worth preserving as the troops coming home from Afghanistan, even if on paper they’re not engaged in combat. To hostile parties in the Middle East, that distinction will mean nothing.

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The Centers for Disease Control and Prevention (CDC) will once again recommend masks for vaccinated Americans under certain circumstances, even though the odds of a vaccinated person transmitting COVID-19 to someone else remain exceedingly low.

The new guidance, issued by CDC Director Rochelle Walensky on Tuesday afternoon, also instructs school districts to require masks of all students, teachers, and staff members when classes resume in the fall.

Walensky said these decisions were made because the delta variant of COVID-19 is somewhat more transmissible than the other strains.

“Information from other states and countries shows that in rare cases some vaccinated people may be contagious and spread the virus to others,” said Walensky. “This new science is worrisome and unfortunately warrants an update to our recommendations.”

Unsurprisingly, this new recommendation is excessively cautious to the point of absurdity. Note that the vaccines still hold up remarkably well against the delta variant in terms of preventing severe disease and death. They also substantially reduce infection rates and transmissibility. But what the CDC has found is that when rare, breakthrough infections do occur, delta’s viral load is high enough that a vaccinated person could potentially transmit the virus—probably not to another vaccinated person (who is extremely protected, in any case), but to an unvaccinated person.

The government is essentially saying that vaccinated people must resume indoor mask-wearing, not because the delta variant poses any danger to them or their vaccinated friends and family members, but because the minority of the country that stubbornly refuses to get vaccinated is at risk. (Note as well that the most at-risk group, senior citizens, have extremely high vaccination rates; the least vaccinated group, young children, are exceedingly unlikely to suffer death from COVID-19.)

It is hard to see how this new guidance is fair to the vaccinated, who have thus far done everything that was asked of them. Masks and other social distancing requirements were supposed to be temporary measures—remember “two weeks to slow the spread”?—until the vaccines were available. Federal health bureaucrats cannot perpetually deprive people of their rights in the name of public health.

The cure for the pandemic is here, and if people won’t take advantage of it in order to keep themselves safe, at some point—like, now—that’s on them, not the already vaccinated.

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New polling numbers show California voters evenly divided about whether they want to recall Democratic Gov. Gavin Newsom.

Earlier polling had shown Newsom easily outlasting the recall effort, which was being pushed by Republicans in the heavily Democratic state. But a new poll by the University of California, Berkeley, Institute of Governmental Studies, co-sponsored by the Los Angeles Times, shows a big problem for him: Previously undecided voters are increasingly deciding to dump Newsom.

About half of likely voters in this latest poll say they’ll likely vote to retain Newsom. That’s similar to numbers in previous polling of registered voters (a different pool from “likely voters”). What has changed is that undecided likely voters appear to be turning against the governor. The number of voters saying they’re inclined to vote in favor of the recall has jumped from 36 percent to 47 percent.

Partisan interest in the upcoming vote may also be a problem for Newsom. While Republican voters are deeply invested in the recall, Democrats and independent voters are less so. Only 58 percent of Democrats and 53 percent of independents poll as interested in the recall election, compared to 90 percent of Republicans. In other words, even though Democrats dramatically outnumber Republicans in California, if many Democrats are uninterested in the recall and don’t actually vote, Republicans might win the day.

The poll numbers are good news for Larry Elder, the conservative libertarian radio talk show host running in the recall race as a Republican. He has the most support among the 46 candidates that have been certified as alternatives to Newsom in the recall election, clocking in with 18 percent of likely voters in the latest poll. Elder was originally left out of the list of official candidates over issues related to the release of his tax records, but he sued to get back on the ballot and won.

Other big GOP names like businessman Kevin Cox (the guy with the bear) and former San Diego Mayor Kevin Faulconer each have the interest of 10 percent of the voters. Trans Olympian Caitlyn Jenner has just 3 percent. Riverside County Supervisor and Libertarian Party recall candidate Jeff Hewitt has just 1 percent of the interest of likely voters.

The pool of voters who haven’t decided on a replacement, however, sits at a whopping 40 percent for this election, scheduled for September 14, which is in less than 50 days. The anti-recall ads I’ve been seeing here in California have been heavily focused on the partisan Republican roots of the recall to cast it all as a power grab and its supporters as “anti-vaxxers, Q-Anon conspiracy theorists and anti-immigrant Trump supporters.” But as I and other Reason writers have noted, there’s a lot of unhappiness, oppressive regulation, and financial insecurity in the Golden State, even as Newsom brags (inaccurately, it turns out) about a $75 billion budget surplus. This recall race is about more than the GOP versus the Democrats.

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Climatologist Michael Mann suffered another setback yesterday in the defamation lawsuit over critical blog posts published by the Competitive Enterprise Institute and National Review. Last week, the D.C. court granted summary judgment for CEI, leaving writers Rand Simberg and Mark Steyn as the only defendants left. (National Review had previously been dismissed from the case.)

In a 55-page order, Judge Irving excluded all but one of the expert witnesses offered by each side in the case. Judge Irving struck all seven of the expert witnesses offered by plaintiff Mann and one of the two expert witnesses offered on behalf of the defendants. Only one expert witness offered by the defendants, Dr. Abraham Wyner, an expert on statistical methods, was not excluded by the order.

Here is how Judge Irving set the stage:

Importantly, this is a defamation action arising out of two blog posts written individually by Defendants Steyn and Simberg. The litigation does not intend to answer any questions about the existence of climate change or global warming. The subject statements concerned and criticized Dr. Mann (“Plaintiff”) personally for his work in producing a model of rising global temperatures, which model is known publicly as the Hockey Stick graph. The statements accused Plaintiff, inter alia, of “molest[ing] and tortur[ing] data in the service of politicized science[,]” “engaging in data manipulation[,]” and creating the “fraudulent climate-change ‘hockey-stick’ graph[.]” Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1262-64 (D.C. 2016), as amended (Dec. 13, 2018), cert denied 140 S. Ct. 344 (2019). Plaintiff claims that the statements are defamatory and false. Defendants, on the other hand, contend the statements are not defamatory and are, indeed, true. Defendants seek to offer the testimony of two experts in the field of climate science and statistics, to lend to the credence and the legitimacy of the allegedly defamatory statements. For his part, Plaintiff proffers seven experts to support his claim that the statements are defamatory. The question for the Court is whether it may, as gatekeeper, admit into evidence the witnesses’ opinion testimony and, if so, whether the subject matter of the testimony should be limited in any fashion.

Applying Rule 702 of the Federal Rules of Evidence, and the Daubert standard for scientific evidence, Judge Irving concluded that most of the proffered expert testimony was inadmissable because the experts failed to identify the methodology they used in reaching their conclusions about the contested statements. As Judge Irving explained:

none of Plaintiff’s proffered experts explain the methodologies that they used to formulate the opinions contained in their reports. This error, in and of itself, is fatal because the Court is rendered unable to determine whether the Parties’ experts used reliable methodologies. . . .   [A]s gatekeeper, the Court cannot allow an expert to testify concerning documents and articles that they have reviewed, unless the expert can establish that they have used some technique or methodology that systematically gathers, organizes and catalogs the documents such that another expert with similar training could follow the same procedure and arrive at the same result. . . .

The methodologies of the expert must be grounded in the scientific method, such that another person with similar expertise could replicate them. See Daubert 509 U.S. at 591. Reviewing a selection of documents, summarizing them, and giving an opinion about their conclusions is not a proper methodology grounded in the scientific method, but, unfortunately, it is precisely the methodology used by most of the proffered experts, here. For that reason, the Court is constrained to grant all of the subject motions and exclude all of the proffered expert testimony, with the exception of Dr. Wyner’s expert testimony.

So, for example, here is a portion of Judge Irving’s discussion of why he found the proffered testimony of Dr. Naomi Oreskes wanting:

When asked about the methodologies that she used in this case, Dr. Oreskes responded: “If you want me to tell you what my method is, it’s reading and thinking. We read. We read documents. And we think about them.”

That is the problem, here. Reading and thinking about documents are not the types of “reliable methodologies” typical of an expert witness, which leaves the Court unable to distinguish why Dr. Oreskes is more capable than the average juror, who can also read and think about documents. See Parsi v. Daioleslam, 852 F. Supp. 2d 82, 89 (D.D.C. 2012) (rejecting an expert opinion based solely on the experts “reading and viewing” and finding that reading, alone, does not constitute an acceptable methodology). Dr. Oreskes “reading and thinking” have not been peer-reviewed, have no known success rate, and cannot be replicated by other experts in her field. . . . Dr. Oreskes opinion is not derived from the scientific method and is more aptly described as a historical narrative or research compilation than scientific testimony. See Daubert, 509 U.S. at 590; Meister, 267 F. 3d at 1127 (finding that to identify scientific testimony, “forces the court to focus on principles and methodology, not on the conclusions they generate, and thus demands a grounding in the methods and procedures of science, rather than subjective belief or unsupported speculation.”) (internal citations omitted.)

On the other hand, Judge Irving found Dr. Wyner’s proffered testimony on statistical methods to meet the applicable standards.

In sharp contrast with the reports of the other experts that the Parties have proffered, Dr. Wyner’s report offers substantial analysis and explanation of the scientific principles and methods he employed in forming his opinion. Dr. Wyner, a trained and recognized statistician, explains there are “aspects of Dr. Mann’s work that can reasonably be construed as manipulative, if not in intent than in effect, as the word is used in common parlance.” Wyner Rep. ¶ 9. Plaintiff argues that Dr. Wyner’s opinion is “little different than the Curry opinion expressed in her report.” MIL Curry Mem. 9. A comparison of the two reports controverts this theory. Dr. Curry seeks to offer a review of criticisms of the Hockey Stick and excerpts of the polemic surrounding the graph, all to support her expert opinion that it would be reasonable to call it fraudulent. Dr. Wyner, in contrast, offers detailed analysis of the statistical methods used to construct the Hockey Stick graph, and why the methods may be reliable and, thus, tending to support a basis for Defendants’ statements.

For example, Dr. Wyner states that “constructed random sequences, simulated like playing cards drawn from a deck, are no less skillful for reconstructing temperatures than naturally occurring proxies.” Wyner Rep. ¶ 33. He explains in detail how he applied “crossvalidation,” which is “an effective method of exploring and countering overfitting and measuring model reliability accurately.” Wyner Rep. ¶ 38 n.13. Plaintiff does not, and likely cannot, assail the principles and methods that Dr. Wyner applies. His opinion is plainly beyond the ken of the average juror, and his testimony regarding the reliability of the Hockey Stick graph will be useful in aiding the jury’s determination of actual malice and falsity.

The court’s order does not necessarily mean that all other expert testimony will be excluded. Judge Irving noted his “expectation that the Parties will likely attempt to elaborate on the methodologies that their experts used in subsequent pleadings,” but for now, the order stands as another blow against Dr. Mann’s case, nine years after the suit was first filed.

Finally, as I noted in my last post on this litigation:

DISCLOSURE: As I’ve noted in prior posts on this case, I am a contributing editor at National Review Online, which means I have a fancier byline when I submit articles to the publication and occasionally contribute to The Corner and Bench Memos. It is not a salaried position. I also worked at the Competitive Enterprise Institute from 1991 to 2000 — many years before the events at issue in this litigation. If either of these facts makes you suspect bias on my part, so be it.

Note that while I was once something of a climate skeptic (much like Jerry Taylor), my views have changed. Today I have profound disagreements with CEI on the subject of climate change, having argued in defense of the scientific “consensus” on climate change and in favor of a carbon tax, among other measures to address the climate threat. My interest in this litigation arises from this implications for robust debate on matters of public concern, as I explained in this post.

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Lil Nas X (with Jack Harlow) has got one of the hottest rap hits in the country at the moment with just-released “Industry Baby” and its audacious prison-themed video that takes familiar hip-hop tropes and gays the heck out of it in the best possible way.

But the 22-year-old rapper is angling for attention for more than just himself. He’s using the jail focus of the video to advocate for much-needed bail reform, and he’s partnering with The Bail Project to raise more funds to help free needy people from pretrial detention.

Bail is supposed to be a system that makes sure people who are released from jail after being arrested show up for court and behave themselves while they’re awaiting trial. But in many places across the United States, cash bail demands have become a system for keeping people who don’t have resources trapped behind bars not because they’re dangerous or flight risks, but because they don’t have the money.

The result is a system that essentially punishes people, particularly poor minorities, before they’re ever convicted and makes a mockery out of the idea of presumed innocence. Some courts are ruling the practice unconstitutional. People who are stuck in pretrial detention often end up accepting bad plea deals that saddle them with harsher sentences and punishments than they’d get if they were free to fight the charges. And if they do manage to arrange for bail through a bail bondsman, they permanently lose a chunk (typically around 10 percent) of the money for the privilege of being free. They do not get this money back if a jury acquits them of the charges.

America at any given point has about half a million people locked up in pretrial detention. These are people who have only been charged, not convicted, of a crime. Some of them are dangerous, and some are flight risks and probably should remain behind bars. But many people are trapped simply because they can’t afford to pay. Some states, like New Jersey and California, have reformed their bail systems so that either cash bail isn’t required in most cases or judges are obligated to determine a defendant’s financial status so that bail isn’t set at an amount he or she cannot afford.

Bail funds across the country also assist in getting people out of pretrial detention. They operate by covering a defendant’s total bail. Assuming that defendant behaves while freed, the bail fund will get the money back, and it can be recycled for a new defendant.

The Bail Project is a national organization helping cover the costs of getting people out of jail in cities across the country. They’ve helped pay bail for nearly 17,000 people. Lil Nas X has jumped aboard with the Bail X Fund to help raise more money.

“This isn’t just theoretical for me,” he explains in a prepared statement. “It’s personal. I know the pain that incarceration brings to a family. And I know the disproportionate impact that cash bail has on black Americans.”

Lil Nas X’s promotion has raised close to $45,000 already. That money probably won’t go terribly far on its own, but remember it can be recycled from defendant to defendant. And more importantly, Lil Nas X’s involvement massively raises the profile of the bail reform movement.

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