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From PETA, Inc. v. Reynolds, decided Thursday by the Eighth Circuit (Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender):

[Iowa’s] general trespass statute defines “trespass” to include “[e]ntering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner ….” “A person has been notified or requested to abstain from entering or remaining upon or in the property … if … [t]he person has been notified to abstain from entering or remaining upon or in property personally, either orally or in writing ….” When an ordinary trespass does not result in bodily injury or property damage exceeding $300, the offense is a “simple misdemeanor” and is punished by a fine between $105 and $855 and up to 30 days of imprisonment.

In 2021, Iowa decided its general trespass statute was not deterring trespassers from unlawfully entering private property to record their trespasses. So it enacted § 727.8A to create a new “trespass-surveillance” offense, which it treated more harshly than ordinary trespass. For instance, under § 727.8A,

[a] person committing a trespass as defined in section 716.7 who knowingly places or uses a camera or electronic device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class “D” felony for a second or subsequent offense.

Iowa punishes aggravated misdemeanors with a fine between $855 and $8,540 and up to two years of imprisonment, and class D felonies with a fine between $1,025 and $10,245 and up to five years of imprisonment.

Two … animal-welfare groups, including ICCI [Iowa Citizens for Community Improvement], developed as-applied challenges on remand, contending the statute’s prohibition against using cameras while trespassing chills their members’ speech when applied to prevent them from recording on private property that is otherwise open to the public after being asked to leave but not to stop recording. Relevant here, ICCI alleges its members intentionally record themselves committing ordinary trespasses, “particularly … at political and corporate sites,” to draw attention to their activities. ICCI alleges its members are willing to suffer the consequences for ordinary trespass but the heightened penalties for trespass-surveillance have chilled their speech….

Whether the First Amendment protects ICCI’s members’ speech in this context is an open question. We know “freedom of speech includes expression through the making and sharing of videos” in some instances. But the Supreme Court “has never held that a trespasser … may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes ….” Lloyd Corp. v. Tanner (1972); see also Hudgens v. NLRB (1976) (holding picketers “did not have a First Amendment right to enter [a privately owned] shopping center for the purpose of advertising their strike”). We need not resolve this question because even assuming recording while trespassing implicates the First Amendment, ICCI’s as-applied challenge fails.

[Section] 727.8A is “reviewed under intermediate scrutiny because [it is] a content-neutral time, place, and manner restriction.” “To survive intermediate scrutiny, ‘a regulation need not be the least speech-restrictive means of advancing the Government’s interests.'” “Rather, the standard is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation and does not burden substantially more speech than is necessary to further that interest.” …

Iowa has an important government interest in protecting its citizens’ property and privacy rights…. “[D]iminution of privacy and a violation of the right to exclude [are] legally cognizable harms.” … Section 727.8A promotes this interest. For example, in arguing that the statute chills its speech, ICCI admitted its members no longer record while trespassing because they are unwilling to risk the heightened penalties for trespass surveillance, and in arguing its injury is redressable, ICCI stated its members will resume their misconduct if we enjoin § 727.8A. Consequently, we conclude § 727.8A “promotes a substantial government interest that would be achieved less effectively absent the regulation” and turn to tailoring….

Iowa’s interest in preventing trespass-surveillance is particularly strong because recordings can be disseminated widely and indefinitely, exacerbating the harm ordinary trespassers cause to property and privacy rights, and § 727.8A is narrowly “tailored to target th[is] harm and redress th[is] evil,” as its “restrictions on the use of a camera only apply … when there has first been an unlawful trespass …. ” …

ICCI alleges its “members travel to spaces generally open to the public,” “disruptively protest,” “are inevitably asked to leave,” and “intentionally record themselves trespassing” “during these encounters.” ICCI’s members then send “the video recordings to media outlets to increase their advocacy efforts [and] draw attention to their message.” ICCI posts this content on its website and social media “to communicate the message of the protests to ICCI’s members and the public, and thereby encourage people to join the work.” To give a few examples, ICCI alleges its “members have been arrested for trespassing in a number of settings: blocking a construction site, protesting in a bank lobby, and protesting in the offices of elected officials.” Based on ICCI’s own allegations, its members plainly want to engage in the exact misconduct § 727.8A is narrowly tailored to proscribe. Consequently, ICCI’s as-applied challenge fails….

ICCI contends applying the statute does not further Iowa’s interest in protecting property and privacy rights when a property owner objects to its members’ presence but not to their recording. This is nonsensical. When a property owner uses his “power to exclude” by ejecting a trespasser—”one of the most treasured strands in [his] bundle of property rights”—he necessarily exercises his lesser right to stop the trespasser from unlawfully recording on his property….

ICCI [also] suggests Iowa’s interests in protecting property and privacy rights are not implicated when the locations at issue are otherwise open to the public. But property owners forfeit neither their right to exclude nor to control their property by opening it to the public for a certain purpose….

ICCI posits the officials failed to produce any evidence demonstrating Iowa needed to proscribe all the speech covered by the statute to achieve its interests. This argument lacks merit because § 727.8A is subject to intermediate rather than strict scrutiny, as discussed above…. “[A] regulation need not be the least speech-restrictive means of advancing the Government’s interests” to survive intermediate scrutiny …. {As ICCI points out, under the Fourth Circuit’s PETA decision, it is “a nonnegotiable requirement” of intermediate scrutiny that there be “‘actual evidence’ in the legislative record that lesser restrictions will not do.” But we are not bound to follow PETA and will not do so because it is inconsistent with the intermediate scrutiny standard outlined in TikTok and Turner Broadcasting Systems.}

In sum, … [ICCI] members’ recordings implicate Iowa’s important state interest in protecting owner’s property and privacy rights, these interests would be served less effectively without the statute, and the statute does not proscribe substantially more speech than necessary to achieve Iowa’s legitimate ends.

Breanne Alyssa Stoltze argued on behalf of the state; Jacob John Larson was with her on the briefs.

The post Eighth Circuit Upholds Ban on Trespassing for Surveillance Purposes appeared first on Reason.com.

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4/25/1938: United States v. Carolene Products decided.

The post Today in Supreme Court History: April 25, 1938 appeared first on Reason.com.

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Zohran Mamdani rode to victory as New York City’s mayor in part due to his audacious campaign promises around freezing the rent and offering free bus service to Big Apple residents. But perhaps no campaign promise of Mamdani’s was as bold as his “$30 by ’30” plan, which called for increasing the city’s minimum wage to $30 by 2030.

Now that Mamdani is in office, New York City Council members have introduced a bill to turn $30 by ’30 from a catchy campaign slogan into an economic reality.

But while the top-line number of $30 has received most of the attention, the fine print in the legislation may be even more alarming: It would eliminate what’s known as the tipped-wage credit for restaurants in NYC, meaning that mom-and-pop restaurants—some of the city’s smallest businesses—would find themselves on the hook for paying workers $30 an hour. Restauranteurs around the city are sounding the alarm, warning that the bill could pose a dire threat to NYC’s famed dining scene.

Restaurants operate under a unique wage structure in most locales across America. Rather than being subject to the traditional minimum wage, tipped employees at these establishments receive part of their compensation in the form of gratuities. A legal structure called the tipped-wage credit allows such restaurant workers to be paid below the minimum wage pre-tips; if a server’s tips still leave them below the full minimum wage, then restaurant owners are responsible for making up the difference.

The tip credit system has been in place for 60 years, allowing restaurant workers to make upwards of $30 or $40 an hour—or more—once tips are factored in, while also giving owners a way to control labor costs in an industry notorious for its tight margins.

Progressive cities like Washington, D.C. and Chicago have experimented with eliminating the tip credit system in recent years, and the results have been nothing short of disastrous. After D.C. scrapped its tip credit and required servers to be paid a traditional minimum wage, restaurant worker earnings reportedly fell in the District as restaurants cut jobs and reduced hours for staff.

Restaurants also responded by raising dining prices in the form of new “service fees,” and D.C.’s progressive city council was ultimately forced to partially reverse the tip credit’s phaseout. The experience in Chicago was similar.

But whereas D.C. and Chicago sought to scrap the tip credit system and replace it with a minimum wage around $16 to $17 per hour, NYC’s plan would nearly double this wage rate to $30. A group of about 40 independent restaurants in the Hell’s Kitchen neighborhood—known for its world-leading dining scene—are now laying out in detail what this increased minimum would mean for diners who frequent their restaurants.

By 2031, they say, a $21 hamburger would become $33; a $14 glass of wine would increase to $22; and a $24 salmon salad would spike to $37. Worse yet, these prices don’t even factor in taxes, and they are only based on a $19.33 per hour minimum wage. (The proposed legislation would gradually raise servers’ hourly wage over time, until it eventually reaches $30 per hour after 2031).

The wage hike could force restaurants to cut back on employment, too. “Places will have to cut their staff in half and use QR codes on the table,” said Sean Hayden, an owner of numerous Hell’s Kitchen restaurants, in an interview with W42ST. “It’ll be like airport service.”

These restaurant owners are hardly profit-grabbing monopolists. One establishment reported that its tipped staff members currently earn over $41 an hour on average when combining an $11.35 hourly wage and tips.

Their warnings are not merely apocalyptic doomcasting, either. Los Angeles voted in May of last year to raise the minimum wage for hotel workers to $30 an hour by 2028. The American Hotel and Lodging Association has since reported that 88 percent of hotels have experienced layoffs or reduced hours and just under 60 percent have reduced overtime availability as well as worker benefits and amenities. While various factors play into these reductions, over 90 percent of hotel owners cite the rising labor costs as a key component.

An Oxford Economics analysis forecasted that L.A.’s hotel wage mandate would lead to a reduction of over 14,000 jobs in the city. L.A.’s gradual minimum wage hikes for hotels over the years—starting in 2015—have already led to notable reductions in employment. The City of Angels can ill afford such a hit to its hospitality industry ahead of hosting the 2026 World Cup and 2028 Olympics.

For NYC’s part, Mamdani has yet to officially endorse the new legislation, although his campaign track record strongly points toward him ultimately backing it. If he does, $33 hamburgers might become the norm sooner than later.

The post A $33 Burger? As New York City Eyes $30 Minimum Wage, Restaurants Brace for Impact appeared first on Reason.com.

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Front Street: Resistance and Rebirth in the Tent Cities of Techlandia, by Brian Barth, Astra House, 287 pages, $29

One lesson of Front Street, Brian Barth’s book of immersive reporting from the sprawling homeless encampments of Silicon Valley, is that there is no full-bore solution to the problems presented by the homeless. The unhoused, and the larger community they aggravate, have only least-worst options.

Barth’s well-reported stories stem from three sprawling multiblock or multiacre tent cities, chronicling the types of people who compose them and the communities—troubled communities, but in some ways surprisingly effective ones—that they form. All three are eventually bulldozed away. But such destructive reactions don’t make the homeless disappear, even if they solve short-term problems for neighbors by making them fade from sight at least temporarily (and at least on that particular site, though they often regroup a mile away).

Barth is on the side of the subjects (and eventual friends and frenemies) he meets in these makeshift minicities. Yet he’s an honest observer of what’s awful about them: the rampant theft, the arson, the screaming, the hypodermic needles, the dead rats. These hobohemias are rife with things the modal taxpaying denizens of wealthy and expensive enclaves such as Cupertino and San Jose don’t want to have around.

Nonetheless, Barth concludes that it’s better to let such sprawling encampments exist and evolve, rather than destroying them and attempting to relocate the inhabitants at great expense and trouble (not to mention destruction of property and disruption of lives). Better both for the homeless and for the culture that would rather they didn’t exist.

***

The book’s three tent cities are Wood Street Commons, in a decaying industrial sector of Oakland; the Crash Zone, near the airport in San Jose; and Wolfe Camp, abutting Apple headquarters in Cupertino. Some people who end up in these places want a normal life with a normal job and a normal apartment. But the characters Barth brings most vividly to life want nothing to do with being shoved into cubicle-sized tiny homes, repurposed crummy motels, trailer-filled parking lots, or other proposed solutions to homelessness.

In the words of Dave, one Wolfe Camp resident: “Affordable housing sucks because not only are you squished in this little box, you have to do all these things on time and in a certain order. I don’t see that as attractive. For some of us, coming out of homelessness is worse than being in it.”

The more articulate of Barth’s subjects prefer the barely functional anarchy of their camps, complete with unsettling threats of violence and lack of such amenities as running water or garbage collection, but also a surprising amount of camaraderie, community, mutual aid, impromptu “social services” from the more high-functioning homeless to their lower-functioning comrades, and a sense of family from people whose problems often began with their utter alienation from the families they were born into.

Who wants to live indoors if they can’t cook their own food, bring in their own furniture, or have any guests? One of Barth’s central characters, a former property manager in his 50s who can be charismatic and compelling but has a self-destructive impulsive streak, reports that he has had friends who just rushed ahead to drug-induced suicide when their lives were reduced to that.

A single woman tells Barth she feels safer in a community of people who know and care about her than in a barbed-wire fence with guards. Such camps are decidedly no paradise, Barth reports, but for the type of people who end up in them, such camps can provide a somewhat functional “sensible, modest, egalitarian lifestyle…based on resource sharing.” (Because of both charity and dumpster diving, these dense encampments do not generally lack food, clothes, or other basics of survival.)

In Wolfe Camp, none of the people Barth interviewed had goals that involved “working a job they hate, or any scenario in which they spend their waking hours engaged in unfulfilling tasks.” But some do work hard—like Kent, who used to enjoy biking by Apple HQ shouting “Fuck you!” at the company, and who pulls in around $3,000 a month dumpster diving in the office parks of billionaire tech companies.

***

California has about a third of the nation’s homeless. This makes waiting lists for official city-provided low-income shelter in the Golden State absurdly long, and the alternate shelter on offer to the denizens of the bulldozed encampments never covers all the people being displaced.

Barth wants us to see these tent cities as not a problem but a solution to the intractable fact that our society will produce people not prepared or able to thrive in it in a standardized job-and-house style. (He also, especially among “homeless” people who live in parked mobile homes or vans, finds many with good jobs and reasonably high incomes.) His characters can be troubled and troublesome but nonetheless are surviving, and by their own standards sometimes thriving, in the delicate combination of liberty and community that their encampments provide—until officials demand their homes be bulldozed and their possessions destroyed or taken (and sometimes sold by contractors hired to evict them).

Barth posits that it would be both cheaper and less damaging to homeless people’s lives if the city would just try to ameliorate the negative externalities of such encampments by providing trash pickup service and some form of water and power supply. Caltrans alone spent $36 million to sweep 1,262 camps in just 2020, and in at least one Los Angeles example it cost $2 million to sweep just one 200-person camp.

Barth is too quick to dismiss “neighborhood warriors wringing their hands about the tents down the street and the people eating, sleeping, fornicating, and getting high inside them.” Having to constantly see these encampments—especially combined with setting fires, a part he leaves out of that sentence but does discuss elsewhere—justifies neighborly alarm, as does having huge parts of what are meant to be public parks along the Guadalupe River in San Jose inhabited by tent dwellers who unnerve joggers or parents pushing strollers.

But his storytelling does show that, whatever mental health problems his homeless characters might have, it’s not crazy in a colloquial sense to value “friendship more than the social services on offer” in homeless-industrial housing. Even as Barth defends their value compared to the destructive, expensive alternatives that—this part is important—don’t make the homeless disappear either, he admits these encampments are “a messy experiment in interdependence” populated by “highly traumatized and dispossessed individuals” such that “things get messy…a lot of trash…screaming…intoxication…dysfunction.”

Still, Barth is convincing that constantly being uprooted and told they cannot be wherever they are on public (and sometimes private) property adds to these people’s edgy unreliability. He also quotes a source who tours through homeless encampments as saying, somewhat convincingly, that the scrappy resourcefulness of a homeless encampment might make it the safest place to flow to if civilization starts seriously collapsing.

Barth’s deeply observed and thoughtful reporting will make most readers whipsaw between sympathy and repulsion toward his characters, even as it hits on many of the ways California makes building new housing absurdly expensive. (One homeless aid program, Homefulness, faced $30,000 in expenses over the city’s demands that it include parking spaces with its new construction.) He notes that one-on-one cash giving beats in practical effect all government homeless aid.

Dave from Wolfe Camp is a fervent voice for his now-annihilated encampment as a solution, not a problem: “A lot of us want to be here. We love the compassion of it. We love the fact that we belong…which is a really magical thing. I would never be able to heal anywhere else.”

Meanwhile, the homeless’ best legal weapon in having their interests hold weight—Martin v. City of Boise, a 2018 9th Circuit Appeals Court decision that slowed homeless camp destruction—has been abandoned by the Supreme Court in a June 2024 decision in Grants Pass v. Johnson.

That case challenged a law in that Oregon city that essentially criminalized sleeping in parks with any bedding or tents. The 6–3 decision by Justice Neil Gorsuch rejected the 9th Circuit’s assertion in Martin that it was unconstitutionally cruel under the Eighth Amendment to make it illegal to sleep in public if the person did not have “access to alternative shelter.”

Gorsuch specifically said this decision reversed the 9th Circuit’s “Martin experiment,” and argued that “Under Martin, cities must allow public camping by those who are ‘involuntarily’ homeless. But how are city officials and law enforcement officers to know what it means to be ‘involuntarily’ homeless, or whether any particular person meets that standard?”

After listing other relevant questions toward judging someone truly “involuntarily” homeless (the characters Barth reports on show that is a tough question in many cases), Gorsuch concludes that “if there are answers to those questions, they cannot be found in the Cruel and Unusual Punishments Clause.”

Allowing such camps to grow and thrive does create problems for neighbors not living there. They may be ameliorable, if not solvable, by changing cities’ approach to them, or if the camps themselves get better at self-regulation. Completely erasing all the strife caused by people who choose and act as Barth’s characters do is not possible. Living in a society, especially with people who reject some of its core tenets, always requires a complicated set of costs and benefits and a balancing of interests.

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