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The US Court of Appeals for the Fourth Circuit recently issued a notable  decision upholding the constitutionality of a federal Hate Crimes Act prosecution, by concluding that Congress’ power to regulate interstate commerce gives it the power to ban the conduct in question. In United States v. Hill, the court issued a divided 2-1 ruling overturning a district court decision that invalidated the conviction of an Amazon employee who assaulted a gay co-worker out of homophobic motives.

The decision is a complicated one. Both the majority opinion by Judge James Wynn and the dissent by Judge G. Steven Agee do an excellent job of outlining their respective positions and trying to ground them in the Supreme Court’s Commerce Clause jurisprudence. If you really want to understand all the back and forth arguments, there is no substitute for reading both opinions in full. In this post, I will briefly outline the key issues at stake, and explain why I think the majority opinion sets a problematic precedent.

Homophobic assaults and other hate crimes deserve severe punishment. Perhaps hate crimes should even be punished more severely than otherwise similar “ordinary” violent crime. But, in most situations, the Constitution leaves that task to the states, not the federal government.

Hill assaulted the victim while the two were on the job. He was convicted under Section 249(a)(2)(B)(iv)(II) of the 2009 federal Hate Crimes Prevention Act, which criminalizes bias-motivated assaults (in this case an assault motivated by homophobia) in situations where assault “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct.”

Before considering the decision, it’s worth noting two constraints on its analysis. First, for procedural reasons, the court did not address the argument that the Hate Crimes Act is  unconstitutional as a whole; it only considered Hill’s claim that it was unconstitutional “as applied” to his specific conduct. Second, the government argued only that this provision of the Act is a permissible exercise of Congress’ Commerce Clause powers. It did not claim that it was also authorized by Congress’ powers under the Thirteenth Amendment (which gives Congress the power to enact laws to suppress “slavery” and “involuntary servitude”). Several court decisions have upheld other parts of the Hate Crimes Act under the Thirteenth Amendment (in cases dealing with racially motivated violence, rather than homophobic attacks). I critique this sort of reasoning here.

In cases such as United States v. Lopez and United States v. Morrison, the Supreme Court ruled that the Commerce Clause gives Congress the power to regulate almost any “economic activity” as long as it had some substantial “aggregate” effect on interstate commerce. But it also emphasized the need to limit federal power under the Clause, so that it would not turn into an unconstrained general “police power,” and noted that, at least as a general rule, Congress cannot use the Commerce Clause to regulate “noneconomic” activity merely because it had an aggregate effect on interstate commerce. Otherwise, Congress would have the power to restrict almost any activity, as virtually anything we do affects interstate commerce in some way (especially in combination with similar behavior by others).

In this case, both the majority and dissent recognize that Hill’s assault was not “economic” activity in and of itself. It was not an economic transaction, nor did he have any kind of economic motive for his actions.

Nonetheless, the majority concludes that the prosecution falls within the commerce power for two main reasons. The first is that the relevant section of the Hate Crimes Act does not permit prosecution of any and all assaults that might affect the economy, but only those that  “interfere with commercial or other economic activity in which the victim engaged at the time of the conduct.” This, Judge Wynn argues, provides a limiting principle that prevents this part of the Hate Crimes Act from morphing into a justification for unconstrained federal power: “For example, if Defendant had assaulted [the victim] Tibbs  at a private residence while Tibbs was not engaged in activity related to interstate commerce, then Defendant would not be subject to prosecution under the Hate Crimes Act.”

Judge Wynn’s second major point is that what matters is not the nature of the defendant’s act, but its effect on interstate commerce:

[I]t is irrelevant that a bias-motivated “punch in the face” is non-economic, standing alone…. It is not the violent act itself, or the motivation behind that act, that triggers Congress’s regulatory authority under the Commerce Clause, but the effect of that act on interstate commerce that renders it susceptible to federal regulation.

In my view, Judge Wynn’s second argument undercuts his first. If what matters is the “effect” on commerce, and not either the motivation or the inherent nature of the defendant’s actions, then the logic cannot be limited to cases where the defendant has disrupted “commercial or other economic activity in which the victim engaged at the time.” Even if the victim was indeed just sitting at home and not doing anything “economic,” an assault on him could have an impact on commerce. After all, the injured victim might end up buying fewer (or more) products in interstate commerce as a result. Even if that doesn’t happen in any given case, it is surely true if we aggregate the impact of all similar assaults.

And Judge Wynn’s logic requires us to do just that. That is how he gets around the fact that the evidence indicates that this particular attack had no effect on commerce, because  it did not in any way reduce the productivity of the Amazon facility where it took place.

For this reason, I agree with Judge Agee’s dissent, where he points out that “[t]his unauthorized Commerce Clause expansion would result in a host of problems including the federalization of commercial property, the regulation of all aspects of employment and workplace conduct, and even the home, should individuals be engaged in work while there.” Indeed, the majority’s reasoning might even allow Congress to regulate activities in the home even in situations where the person in question does not “engage in work while there.” After all, such activities still often have an aggregate effect on interstate commerce.

If, for example, I engage in a “couch potato” lifestyle at home, that might reduce my productivity at work, and in turn reduce the quantity or quality of interstate commerce. The aggregate commercial impact of such behavior may well be at least as great as that of bias-motivated crimes.

This flaw in the majority’s logic explains why there is good reason to decry the Fourth Circuit’s decision even if we sympathize with the objectives of the Hate Crimes Act (as I do). In the short run, it may make little difference whether the likes of Hill are prosecuted in federal or state court. If found guilty, they likely deserve what they get.

But the same logic that allows this prosecution, could also justify federal regulation of almost any activity that might have an aggregate impact on interstate commerce. Among other things, it would surely justify the proposed Protect And Serve Act, which would make it a federal hate crime to assault a police officer, thereby creating dangers for civil liberties. Liberals who might be tempted to cheer the outcome of this case should consider all the other things the federal government could criminalize using the same legal rationale.

Such an expansion of federal power makes a hash of the constitutional scheme of limited federal power, and can easily be abused. It would also undercut the usefulness of constitutional federalism as a tool for mitigating the conflicts caused by severe political polarization.

In my view, Section 5 of the Fourteenth Amendment does allow Congress to punish some types of hate crimes in situations where state authorities systematically fail to do so, out of reasons of racial, ethnic, or gender bias. In that scenario, the federal law would simply be countering state-government discrimination. This was an all-too-common problem throughout much of American history, particularly in the segregation-era South, where states routinely turned a blind eye to hate crimes committed by whites against African-Americans.

Today, however, few if any states are unwilling to prosecute hate crimes. Indeed, as the Fourth Circuit ruling explains, the Hill case ended up as a federal prosecution only after state prosecutors turned it over the feds. Virginia prosecutors were more than willing to go after Hill for assault and battery. But they preferred a federal case because the Virginia does not have a specialized hate crime law that covers homophobic assaults, like the federal Hate Crimes Act does. They apparently turned the case over to federal prosecutors because Hill could get a stiffer sentence as a result.  Even if you believe that prosecution under a hate crime law is preferable to prosecution for “ordinary” assault, the situation is a far cry from the sort of state-government bias that would justify federal intervention under the Fourteenth Amendment.

If some states do continue to exhibit bias against prosecuting hate crimes against certain groups, the appropriate—and constitutional—response would be a federal law specifically targeting those types of jurisdictions. We should not instead open the door to federal control of a vast range of private activities that in some way affect interstate commerce.

Later decisions could potentially limit the negative impact of Hill. The majority opinion is long and complicated and offers various potential hooks for judges who want to restrict its impact without overruling it. But I don’t think they can coherently do it without imposing constraints on the key elements of Judge Wynn’s reasoning described above.

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I’m investigating what seems to be an interesting and unconstitutional prior restraint on a media outlet imposed by a Guam Superior Court judge. Any of our readers Guam lawyers (or connected go Guam lawyers), Guam media folks, or otherwise Guam-linked? If you are, and are willing to chat with me briefly about this, please e-mail me at volokh at law.ucla.edu. Thanks!

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We did it, America. After letting our social media panic rise for years, we finally helped convince Twitter to ban God.

OK, it wasn’t God, per se, but rather TheTweetOfGod, a satirical account run by a former “Daily Show” writer who posts quips such as, “What happens after you die is pretty funny actually.” Twitter, which like all social media platforms is under increasing consumer and political pressure to police bigotry and extremism, ruled on Tuesday that the ersatz Yahweh had engaged in suspension-worthy “hateful conduct” by tweeting, “If gay people are a mistake, they’re a mistake I’ve made hundreds of millions of times, which proves I’m incompetent and shouldn’t be relied upon for anything.”

The company quickly reversed itself after the ensuing brouhaha, claiming it had made an “error.” Still, this should be (though it almost certainly won’t be) a wake-up call — not to the Lords of social media, but to the rest of us heathens. We keep asking Silicon Valley to enforce speech manners on the commons, then recoil in horror when the results inevitably don’t go as expected.

Every damned day in 2019, far too many of us wake up in the morning, fire up Facebook, Twitter or YouTube, and then demand that the managers of same censor, demonetize, and even ban people who say things we don’t like.

Last week it was the eminently dislikable but nonetheless popular conservative shock-bro Steven Crowder nominated for YouTube de-platforming. Crowder has long mocked Vox video producer Carlos Maza, taunting him as a “lispy queer” and “gay Mexican.” (Maza, for the record, is gay of Cuban extraction.)

Maza says Crowder’s fans send him torrents of homophobic abuse via social media and text message. So, like many of our modern de-platformers, albeit with considerably more skin in the game, Maza went rifling through YouTube’s terms of service for disqualifying violations, and came up with the site’s prohibitions on “content or behavior intended to maliciously harass, threaten or bully others.”

YouTube initially responded that Crowder’s trolling didn’t quite rise to the level of incitement. But then the video platform, which is owned by Google, suspended his channel’s monetization — basically, preventing him from selling ads until he removes specific content such as links to his site selling “Socialism is for F*gs” T-shirts.

With the controversy at a high boil (Rep. Alexandria Ocasio-Cortez and Sen. Ted Cruz were weighing in on Twitter, natch), YouTube then announced a sweeping policy change banning “extremist” and denialist videos. Almost immediately, legitimate journalists and historians who cover controversial subjects found their work purged from YouTube.

We are asking social media companies to do the impossible — impose and enforce editorial standards on an endless global stream of user-generated content. The very reason that Facebook, Twitter, YouTube et al became popular in the first place — they’re so easy to use even Grandpa can do it! — dooms all these post-facto cleanup exercises to failure. An algorithm will never replicate the judgment of a magazine editor, and no human hands can reproduce the efficiency of a 24/7 automated publishing system used by millions.

“Casting a wide net into the Internet with faulty automated moderation technology … also inadvertently captures useful content like human rights documentation, thus shrinking the democratic sphere,” warned a joint report published last month by the Electronic Frontier Foundation, Syrian Archive and Witness. “No proponent of automated content moderation has provided a satisfactory solution to this problem.”

Among civil libertarians, the deeper worry is that social media panics are already turning into bad speech-restricting legislation and regulation. Congress last year overwhelminglypassed a likely unconstitutional Online Sex Trafficking Act that holds web publishers retroactively liable for prostitution advertisements posted by users. Each week brings some new Capitol Hill hearing where politicians browbeat technology companies for alleged viewpoint discrimination.

But let’s not give short shrift to government censorship’s kissing cousin, censoriousness. That’s where users increasingly ask technology companies — sometimes under threat of government force — to shut down the speech of people we find distasteful. We really need to knock that off.

The more we treat social media companies like speech-providing utilities, the more they’re going to act like utilities — which is to say they’ll never go away. Possibly the best single thing about social media behemoths has been that they have a tendency to disappear. No longer are we under the boot heel of Friendster, MySpace or Flickr. There’s a reason Facebook and Google are now openly inviting Congress to regulate them — that way they get to help write the rules governing any future competitors.

There are important reasons for individuals to avoid being a terms-of-service tattletale, too. Especially at a time of increased polarization and political apocalypticism, all of us need to get better at old-fashioned persuasion, and less reliant on third-party authorities to make the bad people go away. Keep politicians away from social media regulation, and let God tweet.

This column originally appeared at the Los Angeles Times.

 

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With birth rates plunging and baby boomers retiring, the American economy is going to need workers. Unless someone comes up with a magical formula to boost fertility, that means we’ll need more immigrants.

So the Economic Innovation Group (EIG), a consortium of politically diverse investors, entrepreneurs, and economists, deserves credit for trying to figure out an immigration-based plan that would spare America from the coming labor crisis that could drain economic growth to under 2 percent. But the EIG’s proposed solution, which is to create a special category of visas that would repopulate Rust Belt towns and other places that have been left behind by the modern economy, is flawed.

It’s true that the Northeast and the Midwest have been hit particularly hard and that they risk falling into a cycle where, as populations shrink, employers flee, taking jobs with them. This erodes the tax base, which in turn impacts public services, causing further population loss. Rinse, wash, repeat.

To reverse this cycle, the EIG suggests granting “Heartland Visas” to skilled foreigners on the condition that they move to depressed areas targeted for renewal, such as Detroit. The authors liken this plan to Canada’s Provincial Nominee Program, in which Canada’s central government hands every province a number of visas with which to recruit immigrants of their choice, in addition to those admitted by Ottawa. In essence, it lets provinces write their own immigration policies for about a third of those allowed in.

The Canadian system isn’t a top-down effort at economic renewal or development. It allows a granular matching of workers to local economic needs. Even though immigrants could move out of their sponsoring province, about 80 percent don’t. The EIG doesn’t flesh out its proposal in detail, but it’s pretty clear Heartland Visas wouldn’t work the same way.

In Canada, provinces can recruit immigrants of any skill level, from welders to computer engineers. Heartland Visas, meanwhile, are recommended only for “skilled” foreigners, amplifying the current bias in America’s immigration system that prioritizes the demands of high-tech industries over rural economies. (The EIG is funded mostly by folks from the technology sector.) That could breed a mismatch between local needs and the immigrants who are admitted.

Moreover, disproportionate population losses are a symptom of broader governance problems. Local and state governments in these places have often failed to achieve crime-free environments with good schools and decent public services. They also erect regulatory obstacles that thwart entrepreneurship. Plunking immigrants in such places and expecting them to perform miracles when they can’t vote or run for political office will only set them up for failure and diminish public support in the long run.

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This month, Denver announced it would roll back some restrictions on drinking in public. Elsewhere, a new North Carolina law loosened some beer-distribution rules.

State (and local) alcohol laws are forever changing. Often, as in Denver and North Carolina, the changes are welcome.

That’s also the case in Connecticut, where a law will allow out-of-state wine stores and retailers to ship wine to state residents. And it’s true in Kansas, where a new law allows the sale of beers up to 6% ABV in grocery stores.

In many cases, one could be forgiven for a creeping sense of optimism. Wow, it’s great that’s legal now. But I tend to think otherwise: Why the heck wasn’t that legal until now?

Still, my pessimism over the slow pace of progress is tempered by the fact that these incremental changes for the better are so often juxtaposed against far worse things—namely awful booze laws that won’t change or, worse still, lousy, laws that have only recently found their way onto the books.

In fact, for every state that’s embraced one or more facets of alcohol deregulation, you’ll find others have done just the opposite. It’s in this way that New Jersey’s awful, backsliding new craft beer regulations, which I wrote about last week, hardly stand alone.

In Massachusetts, for example, all happy hour drink specials continue to be illegal and have been since the mid-1980s. The incident that spurred the ban took place when a drunk woman jumped onto the hood of a car in the parking lot of a Ground Round, a local pub chain. The car was also driven by another drunk person, right after both had consumed cheap beer at the pub. The woman fell off the car and died.

Massachusetts’s happy hour ban was supposed to combat such tragedies. But it continues not to do so. Just this week, a 74-year-old allegedly intoxicated man was arrested after the police say he plowed into two people outside an Applebee’s restaurant.

That’s on top of the fact, as I wrote in a 2015 column, that Massachusetts “has the second-highest rate of drunk driving in New England, and a rate that’s 15 percent higher than the national average.”

Oftentimes, even in states that deregulate, the stench of Prohibition often still lingers.

Take a new West Virginia law, which took effect this week, reports the Williamson Daily News. The law increases the maximum ABV beers sold in the state may contain from 12% to 15%. It also allows customers to purchase more than two growlers of beer. Another law, which also took effect this week, will allow restaurants, wineries, breweries, and others to sell alcohol on Sundays after 10 a.m. Sunday bottle sales are still illegal until 1 p.m.

Hence, if you want to buy a bottle of Dogfish Head 120 Minute IPA (which clocks in at 15-20% ABV)—or, say, a bottle of anything on Sunday morning—you’ll still have to leave West Virginia to do so.

That stench of Prohibition also lingers in Texas, where a new state law will allow some restaurants to deliver alcohol to customers who also order food. That’s great. But standalone booze deliveries are still illegal under the law. Of course, there’s a catch that basically swallows the rule.

“[I]f you are ordering a dozen beers from a pizza parlor with a beer and wine permit,” News 4 San Antonio reports, “you’ll need to make sure to add a couple orders of breadsticks to go with it.“

Craft beer—like the alcohol industry generally—can “only go as far as lawmakers will allow,” I wrote earlier this year. Even as state alcohol laws continue to evolve, it’s clear that a willingness to expand choice through deregulation is something many lawmakers don’t yet possess.

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The government in the United States has increasingly become a powerful weapon that two warring tribes repeatedly seize control of and then use against each other. For those of us who are averse to being smashed, it’s long past time to consider the machinery of the state as nothing more than a bludgeon in the hands of dangerous maniacs.

Dangerous? Indeed. It’s hard to beat the insight into the malicious heart of government offered by Rep. Ted Lieu on CNN in December.

“I would love to be able to regulate the content of speech,” the California Democrat told CNN’s Brianna Keilar. “The First Amendment prevents me from doing so, and that’s simply a function of the First Amendment.”

Lieu obviously takes it for granted that many politicians would muzzle their enemies if it were permitted and that only meddlesome legal strictures prevent them from enacting their dark desires.

Those strictures no longer look so strict. New York state’s blue-tribe government last year repeatedly abused regulatory power in assaults against independent institutions. First, it sought to intimidate financial firms and insurance companies into breaking ties with organizations that advocate self-defense rights. This emulated the Obama administration’s earlier Operation Choke Point scheme by which “powerful bank regulatory agencies engaged in an effort of intimidation and threats to put legal industries they dislike out of business,” according to John Berlau of the Competitive Enterprise Institute. New York officials followed up by threatening to declare “truant” any children attending private schools whose curricula didn’t win state approval.

For his part, Donald Trump, red tribe jefe, demands unwavering personal loyalty. He promised to punish companies that defy his nationalistic economic schemes by moving production overseas. “They will be taxed like never before,” he vowed last summer of Harley-Davidson. And the president, who once described freedom of the press as “frankly disgusting,” doubled down on his predecessor’s hostility to journalistic independence by threatening to retaliate against the critical Washington Post with antitrust action, higher postage rates, and taxes on Amazon, which shares Jeff Bezos as its owner.

Yes, politicians have misbehaved in the past. But pollsters continuously report that the dominant modern political factions hate each other to an unprecedented degree, and their chosen standard bearers are seeking to act on that loathing. It’s enough to make you think government officials shouldn’t be trusted with the powerful tools of the state—and to worry that the restraints intended to prevent misuse of those tools have broken down.

“We are at the end of the American project as the founders intended it,” political scientist Charles Murray wrote in 2015’s By the People: Rebuilding Liberty Without Permission (Crown Forum). That project, as he saw it, was an effort to “demonstrate that human beings can be left free as individuals, families, and communities to live their lives as they see fit as long as they accord the same freedom to everybody else.” Given the U.S. government’s intentional erosion of that ideal, however, Murray proposed mass civil disobedience against intrusive rules and overreaching officials.

“You have the right to defend yourself and others from state injustice, even when government agents act ex officio and follow the law,” philosopher Jason Brennan wrote in the January 2019 issue of this magazine. “Innocent people have a right not to be subject to badly made, high-stakes political decisions,” he adds in his 2018 book, When All Else Fails: The Ethics of Resistance to State Injustice (Princeton University Press). Brennan doesn’t suggest that overt resistance is risk-free, but he argues that it’s morally justified and often better than knuckling under.

Both Murray and Brennan see the government as frequently oppressive and out of control—but also as subject to correction, or at least a good knee-capping, if enough people are willing to gum up the works. “Government is the Wizard of Oz…impotent to impose its will in the face of widespread refusal to comply with its rules,” argues Murray.

There’s evidence that something as simple as shaming and social ostracism can effectively sap government agencies of energy, recruits, and resources.

Long-despised for its grabbiness and brutality, the IRS further alienated the public when it acted against Tea Party groups during the Obama years. Since then, it’s lost funding, cut way back on intrusive audits into Americans’ finances, and suffered deep demoralization. “Almost a third of its remaining employees will be eligible to retire in the next year, and with morale plummeting, many of them will,” ProPublica reported in December. That’s one-third fewer arm-twisters—at least for a while—to be called upon by Lieu and his colleagues, even as restrictions on their power erode.

Like the IRS, the FBI compounded the bad will it engendered with lethal misbehavior and the shenanigans of a habitually dishonest crime lab by allowing itself to be drawn into contentious political issues, such as investigations into the bad conduct, real and alleged, of the major 2016 presidential candidates. “Public support for the FBI has plunged,” Time reported last year. And that skepticism appears to have affected juries, which are returning 11 percent fewer convictions in FBI-led cases than they did five years ago.

Employment applications to the FBI dropped from 21,000 per year to 13,000 per year, The Washington Post has reported, necessitating a marketing campaign to haul in reluctant recruits. State and local police agencies, also tainted by news reports of brutality and bias, have likewise seen sharp drops in applicants, resulting in fewer officers to enforce the government’s will. “The number of full-time sworn officers per 1,000 U.S. residents has dropped from 2.42 in 1997 to 2.17…in 2016,” the Post notes.

Come to think of it, that just might leave a little room in the hiring process for applicants who see Edward Snowden as a role model—or even as a starting point in the necessary process of sabotaging from within overpowerful and much-misused agencies.

Most of us will prefer quieter acts of disobedience—ignoring regulations and perhaps assisting others who get caught doing the same, as Murray recommends. We might also choose to respond to the excesses of government agents as we would those of any other thugs, without offering undeserved deference, as Brennan suggests. We could refuse private services to state employees, damage government property, dox officials, and even directly intervene in incidents of oppressive action.

There’s no reason to show respect to a system that sees us as nothing more than enemies to be smashed.

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