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Parts of the western United States look like scenes from an apocalyptic movie—a red-orange tinge across everything, literally blotting out the sun, as more than three million acres burn.

The fires are running rampant, despite firefighters’ best efforts, across California, Oregon, and Washington state. The human cost is huge: 35 people have already died, and more than 4,000 homes have burned. Yet these fires could have been stopped before they got this big, were it not for over-restrictive regulations that have made necessary forest management techniques impossible.

Take controlled burns: fires that are lit on purpose, intentionally burning tinder to keep potentially larger, unintentional wildfires from finding fuel. Especially since the 1960s, efforts to extinguish all fires—even natural, low-impact forest fires that serve as nature’s equivalent of a controlled burn—have made forests more susceptible to larger fires and have made controlled burns more and more necessary.

But the regulatory requirements one must meet before starting a controlled burn are complex and lengthy. According to Jonathan Wood, an attorney with the Pacific Legal Foundation and an adjunct fellow with the Property and Environment Research Center, the National Environmental Policy Act requires “a couple-thousand-page document analyzing every single conceivable impact to the environment that the plan might have.” This is a public process, Wood adds, that “often results in litigation.” There’s even more paperwork when the controlled burn might overlap with areas designated as critical habitat for an endangered species.

“What you’ll often find,” Wood says, “is that there are projects which have been extremely well-vetted, which have been years in the work, there will be a 5,000-page document, which no one could conceivably ever read because it’s so long and complicated, but then the project will still get put on hold for an indefinite period of time, because some special interest group filed a lawsuit.” So much time is spent considering the ramifications of an action; little is spent considering the impact of doing nothing.

From 1999 to 2017, an average of 13,000 acres of California were subjected to controlled burns each year. In February 2020, Nature Sustainability published a report arguing that California needs to burn 20 million acres of forest in order to restore forest health.

The Clean Air Act of 1990 creates another obstacle. The law treat the smoke from a controlled, prescribed burn as a pollutant that must be analyzed and permitted before the burn can be done. The smoke from a wildfire is not similarly scrutinized. But needless to say, the environmental impact of a multi-state wildfire is much larger than that of a smaller controlled burn.

There is no magic bullet when it comes to the issue of preventing wildfires. But if we want to stop disasters of the scale, state and federal governments need to rethink forest management. They could start by easing the regulatory burden upon proven techniques.

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The government acting as proprietor of nonpublic fora (or so-called “limited public fora”)—for instance, advertising spaces on public buses—may impose many kinds of viewpoint-neutral restrictions on speech in those fora. A ban on listed vulgarities on public transit ads, for instance, might well be constitutional (even though a governmental ban on billboards containing such material on private property would not be).

But the restrictions must still be not just viewpoint-neutral but “reasonable,” which the Supreme Court held (Minnesota Voters Alliance v. Mansky) requires, among other things, that they be “capable of reasoned application.” And, as in Minnesota Voters Alliance, today’s Third Circuit decision in Center for Investigative Reporting v. Southeastern Pennsylvania Transportation Authority (SEPTA) (written by Judge Joseph Greenaway, Jr., and joined by Judges David Porter and Morton Greenberg), held that a ban on “political” speech wasn’t clear enough to qualify:

[W]hen asked during oral argument whether SEPTA would determine a series of hypothetical advertisements to be in violation of the current Advertising Standards, [which ban {advertisements that “contain political messages” and those that address “political issues,”}] SEPTA’s counsel’s answers further highlighted the arbitrariness of the decision-making process. For example, when we asked whether an advertisement that depicted three girls of different races holding hands with a message that says, “This is how racism ends,” would be political, counsel for SEPTA responded “no, I don’t think so.” When the Court adjusted the hypothetical to include the same picture with a message that says, “This is what America looks like,” counsel for SEPTA responded by asking, “Who’s putting the ad on?” That response highlights the extent to which the current Advertising Standards are susceptible to erratic application.

{SEPTA also accepted an advertisement that included a Black youth wearing a t-shirt that says “My Life Matters.” Although such a statement arguably should not be “political,” the phrasing “My Life Matters” clearly alludes to the Black Lives Matter movement, which campaigns against violence aimed at Black people and which has become a lightning rod in the media. To many, such an advertisement would clearly be prohibited under the Advertising Standards, even as revised by the District Court. Yet [SEPTA General Counsel Gino] Benedetti determined that it was not.}

As the Mansky Court explained, while the First Amendment does not require “[p]erfect clarity and precise guidance,” when the “restriction[s] go beyond close calls on borderline or fanciful cases …[,] that is a serious matter when the whole point of the exercise is to prohibit the expression of political views.” A policy as ill-defined as SEPTA’s carries “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.”

To be sure, one or two inconsistencies hardly proves that SEPTA has arbitrarily applied its Advertising Standards, but the lack of structure and clear policies governing the decision-making process creates a real risk that it may be arbitrarily applied. And CIR has amply demonstrated that at least on a few occasions that risk has become a reality. Accordingly, we reverse the District Court’s holding that the current Advertising Standards are capable of reasoned application.

Sounds right to me; note that this decision doesn’t cast doubt on exclusion of “political” ads that are more clearly and narrowly defined, such as ads that mention a candidate for office (incumbent or otherwise) or a ballot measure.

Thanks to Howard Bashman (How Appealing) for the pointer.

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This week sees the resumption in London of the extradition hearing for Julian Assange, founder of Wikileaks. Assange faces charges in the U.S. of conspiring with Chelsea Manning and hackers to gain access to and publish classified information that embarrassed the government. It’s an extraordinary proceeding which has American officials claiming that U.S. law applies to a foreign publisher, but that U.S. constitutional protections do not.

It’s also a caution to journalists that governments will go to any length to punish those who inconvenience or embarrass them.

Assange’s troubles began when he worked with Manning—who was then a U.S. Army soldier—to acquire and publish classified documents related to the wars in Iraq and Afghanistan. Notably, the documents included footage of U.S. helicopters shooting people, including civilians, in Baghdad in 2007.

Manning ended up in prison for leaking the information, while Assange hid for years in Ecuador’s U.K. embassy as the British government sought his arrest. Ostensibly, U.K. authorities wanted him for Swedish sexual assault charges, though later the pretense was dropped and by the time he was surrendered by a new Ecuadorian administration in 2019, he openly faced charges under the U.S. Espionage Act.

This is where things get interesting—more interesting, that is—because the U.S. throws the book at Assange, including for conduct that clearly constitutes journalism. The indictment reads, in part:

JULIAN PAUL ASSANGE … having unauthorized possession of, access to, and control over documents relating to the national defense, willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.

“Nothing in this count turns on Assange’s having helped or solicited Manning’s leaks,” commented law professor, constitutional expert, and Reason contributor Eugene Volokh at the time of Assange’s original indictment. “Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury wouldn’t have to find any complicity by Assange in the initial leak.”

That is, Assange’s alleged crime under that language is nothing more than publishing classified material.

Other charges, based on soliciting information from Manning and from hackers, have their own problems. Journalists have frequently done exactly that in high-profile cases, such as when the The Washington Post and The Guardian worked with Edward Snowden to publish his surveillance revelations, and when The New York Times and the Post did the same with Daniel Ellsberg with regard to the Pentagon Papers.

The implications of indicting Assange gave even the Obama administration pause, despite its reputation for hostility toward press scrutiny. To go after the Wikileaks head would be to start down a path that could land many journalists in prison simply for doing their jobs.

“Justice officials said they looked hard at Assange but realized that they have what they described as a ‘New York Times problem,'” the Washington Post noted in 2013. “If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials.”

To work around such concerns, the Trump administration has adopted the novel position that American laws do apply to people outside the United States—as demonstrated by the indictment of a publisher who committed his “crimes” without setting foot within U.S. borders—but without constraint by constitutional protections.

“Julian Assange has no First Amendment freedoms,” then-CIA Director Mike Pompeo told an interviewer with the Center for Strategic and International Studies in 2017. “He’s sitting in an embassy in London. He’s not a U.S. citizen.”

That’s a selective application of U.S. authority that rightly sends chills down the spines of people to whom it applies.

“At the same time that the U.S. government is chasing journalists all over the world, they claim they have extraterritorial reach,” Wikileaks editor Kristin Hrafnsson warned earlier this year. “They have decided that all foreign journalists … have no protection under the First Amendment of the United States.”

And while Hrafnsson works for the online publication that has been directly targeted by the U.S. government, the prosecution of Assange has much larger ramifications.

“This indictment effectively opens the door to criminalising activities that are vital to many investigative journalists who write about national security matters,” PEN International Executive Director Carles Torner cautioned in a July letter signed by 40 press and human rights organizations.

If the prosecution of Assange stands, it would imply that only American journalists could hope to safely report sensitive information about the U.S. government without risking punishment for their efforts at the hands of authorities who claim to exercise worldwide jurisdiction unconstrained by constitutional safeguards for natural individual rights. Journalists elsewhere—especially those under allied governments such as those of Australia and the U.K., which have cooperated in the pursuit of Assange—would be at risk of quasi-legal retaliation.

But it’s not obvious that American journalists are entirely safe either. Even as the U.S. government expands the claimed jurisdiction of its laws while shrinking the application of its constitutional safeguards, it’s also applying the law in novel ways. “For the first time in the history of our country, the government has brought criminal charges under the Espionage Act against a publisher for the publication of truthful information,” the American Civil Liberties Union (ACLU) points out.

Pompeo of the CIA saw no difference in the actions of Assange and whistleblower Edward Snowden, discussing them together in the 2017 interview. “We at CIA find the celebration of entities like WikiLeaks to be both perplexing and deeply troubling because while we do our best to quietly collect information on those who pose very real threats to our country, individuals such as Julian Assange and Edward Snowden seek to use that information to make a name for themselves,” he said.

It’s easy to foresee U.S. government officials continuing to stretch the law, and shrink constraints, in order to reach domestic journalists who piss them off.

If extradited and convicted, Assange faces up to 10 years in prison on each of 17 counts of the indictment, and five years on the eighteenth. That could constitute the effective end of the publisher’s hopes of freedom. It would also be a bare-fisted threat to all journalists who scrutinize government conduct.

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Two Los Angeles County Sheriff’s Department (LASD) deputies are recovering after a Saturday double shooting in which a gunman in Compton apparently walked up to their SUV and opened fire.

The incident has poured gasoline on a summer of protests and riots. President Donald Trump called the shooter an “animal” at a Nevada rally Sunday, adding that anybody who kills a police officer should receive the death penalty.

The incident also led to a bizarrely violent encounter between LASD deputies and a reporter from LAist and the NPR affiliate KPCC. The journalist was assaulted and arrested, and the sheriff’s department’s explanation simply does not match what video of the encounter shows.

Josie Huang had gone to St. Francis Hospital in Lynwood to cover an LASD press conference about the state of the two deputies. A small protest was taking place outside the hospital—a handful of people angry about the LASD’s fatal shooting of a cyclist in late August.

According to Huang’s account, she decided to follow deputies as they followed a man up a nearby street. Then she saw a commotion as they arrested the man. She was filming the arrest when the officers turned on her, shoved her, knocked her down, and arrested her. Her phone video captured deputies asking her to back up and then immediately attacking her and knocking her down. She was wearing her press pass and yelled, while she was on the ground, that she’s a reporter with KPCC. Her phone kept recording after it was knocked out of her grasp, showing two deputies crushing it under their boots. Huang was detained for five hours and has been charged with obstruction.

Before she tweeted her video of the incident, the LASD shared its own description of what happened. It is rather different from what we see in the video. The LASD claims that while its deputies were arresting a protester for refusing to comply with dispersal orders, “a female adult ran towards the deputies, ignored repeated commands to stay back as they struggled with the male and interfered with the arrest. The female adult, who was later identified as a member of the press, did not identify herself as press and later admitted she did not have proper press credentials on her person.”

The only thing that’s true here is that they ordered her to stay back—and then they attacked her immediately, before she could even respond.

Here is additional footage of the incident:

Thank you https://t.co/5ajOiRV1m6 for what is the clearest footage of my arrest by @LASDHQ.

It’s how I remember it — like being tossed around in the ocean and then slammed into rock pic.twitter.com/G3rfCR1NiI

— Josie Huang (@josie_huang) September 14, 2020

The Washington Post subsequently asked the LASD if anybody there wanted to clarify its description of the incident. A spokesperson demurred, saying the incident was under investigation.

After two deputies were ambushed and shot, it’s natural that the deputies would feel danger when somebody approaches them while they’re arresting somebody. But they both overreacted, and then they attempted to cover up their overreaction.

This story isn’t the only recent black eye to the LASD’s reputation. Sheriff Alex Villanueva is fighting with L.A. County’s Board of Supervisors of his department’s lack of transparency and resistance to independent oversight. A whistleblower has filed suit against the department, claiming, among other things, that the Compton station was run by a secret gang called the Executioners and that the LASD is rampant with secret cliques of misbehaving deputies.

And L.A. County residents don’t know the extent that the LASD is covering for misbehaving deputies, because the department has been dragging its feet rather than comply with new transparency laws that require the public release of records of certain types of police conduct. The Los Angeles Times is suing it for it failure to comply with the law.

None of this justifies, excuses, or explains why anybody would just walk up to two deputies and shoot them. Normally that would go without saying, but we’re now in a culture where it needs to be said. But it’s context that shows a crumbling relationship between a sheriff’s department and the community it’s supposed to protect. Misleading the public about an incident caught on video doesn’t help repair that relationship.

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Derek Chauvin, the former Minneapolis police officer who kneeled on George Floyd’s neck for more than eight minutes, plans to argue that the responsibility for Floyd’s death lies largely with two former colleagues. Those inexperienced cops, he says, failed to de-escalate a confrontation that began when they tried to arrest Floyd for attempting to use a counterfeit $20 bill, a misdemeanor. While there is plenty of blame to go around, Chauvin’s defense strategy seems more than a little iffy in light of his behavior that day and his history of using restraints like the one that killed Floyd.

Chauvin is charged with second-degree murder in connection with Floyd’s May 25 death, which provoked nationwide protests against police brutality. He also faces lesser charges of third-degree murder and second-degree manslaughter. Thomas Lane and J. Alexander Kueng, the officers who arrested Floyd outside of Cup Foods, a convenience store and take-out restaurant on Chicago Avenue, are charged with aiding and abetting either second-degree murder or second-degree manslaughter. So is Tou Thao, an officer who stood by as his three colleagues restrained a handcuffed Floyd face down on the pavement, dismissing the concerns of onlookers who repeatedly warned that Floyd’s life was in danger.

All three officers theoretically face up to 25 years in prison for unintentional second-degree murder, although the presumptive penalty under Minnesota’s sentencing guidelines is about 12 years. Yet their culpability in Floyd’s death covers a wide range.

“As is evident from pretrial pleadings, the other three defendants are prepared to place the blame for Mr. Floyd’s death squarely on Mr. Chauvin’s shoulders,” Chauvin’s lawyer, Eric Nelson, writes in a motion for separate trials. Nelson suggests that version of events is inaccurate given the full context of the incident.

Nelson is right that Lane and Kueng handled the arrest poorly. As Reason‘s Scott Shackford has noted, Lane set the tone for the encounter by pointing a gun at Floyd’s head immediately after approaching him as he sat in a parked car. A terrified Floyd begged Lane not to shoot him but eventually calmed down and was compliant as he was handcuffed. As Lane and Kueng tried to put Floyd in the back seat of their squad car, however, he seemed to have a panic attack, saying he was claustrophobic, complaining that he could not breathe, and asking if he could ride in the front seat. The two officers repeatedly tried to force a resistant Floyd into the car.

That was the situation Chauvin confronted as he and Thao arrived at the store. “If Kueng and Lane had chosen to de-escalate instead of struggle, Mr. Floyd may have survived,” Nelson says. “If Kueng and Lane had recognized the apparent signs of an opioid overdose and rendered aid, such as administering naloxone, Mr. Floyd may have survived.”

The autopsy report on Floyd from the Hennepin County Medical Examiner’s Office, which described his death as a homicide, noted fentanyl and methamphetamine in his blood. The level of fentanyl, 11 nanograms per milliliter, was near the low end of the concentrations seen in deaths attributed to the drug. According to a 2012 review in the Journal of Forensic Research, “individuals injecting fentanyl have reported with postmortem blood concentrations of 4.9 to 27 ng/mL” and “as high as 240 ng/mL in heart blood.”

Nelson also blames a tardy emergency medical response for Floyd’s death. “If EMS had arrived just three minutes sooner,” he says, “Mr. Floyd may have survived.”

While those criticisms are valid, the autopsy report says Floyd’s death was caused by “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” An independent autopsy commissioned by Floyd’s family concluded that he died from “mechanical asphyxiation.” Both reports agree that the manner of death was homicide.

The “subdual” and “restraint” were assisted by Lane, who held Floyd’s legs, and Keung, who applied pressure to his back. The “neck compression” was inflicted by Chauvin, who according to prosecutors had used similar techniques during arrests on at least seven other occasions. In four of those cases, prosecutors say, Chauvin used neck or upper-body restraints “beyond the point when such force was needed under the circumstances.”

Current Minneapolis Police Department policy, consistent with an agreement reached in June, prohibits the use of chokeholds and other neck restraints. Prior policy allowed the use of such techniques “for life saving purposes” or on subjects “exhibiting active aggression” or “active resistance,” although the specific maneuver that Chauvin used on Floyd was not sanctioned or taught at the police academy.

Chauvin didn’t just use an unapproved technique. According to prosecutors, he kept using it despite Floyd’s pleading and complaints that he could not breathe, despite the vocal objections of concerned bystanders, and despite Lane’s repeated suggestion that Floyd should be rolled off his stomach and onto his side. Chauvin kept his knee on Floyd’s neck past the point where Floyd became nonresponsive, after he stopped breathing, and for about two minutes after a pulse could no longer be detected. Any mistakes made by the other officers—especially Thao, whose main sin was failing to intervene and deferring to Chauvin, the senior officer on the scene—pale by comparison.

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