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From Tuesday’s Wisconsin Court of Appeals decision in State v. Brister, by Judge Sara Geenen, joined by Chief Judge Joseph Donald and Judge Pedro Colón:

On June 22, 2023, Brister was sentenced in two unrelated cases. In Milwaukee County Circuit Court Case No. 2020CF367, which is not part of this appeal, Brister was sentenced for possessing a firearm as a felon (“the 2020 case”). He illegally possessed a gun while also committing acts of domestic abuse against his live-in girlfriend, Marie.

In Milwaukee County Circuit Court Case No. 2021CF3563, the case before us on appeal, Brister was sentenced for child neglect and OWI (1st) [Operating While Intoxicated] with a minor in the car, after Brister was pulled over for speeding and weaving on I-43 while Diana, then two years old, was unsecured in the backseat of the car. Diana was not injured, so the charge of child neglect alleged that harm would be a natural and probable consequence of the neglect. During the traffic stop, police found a loaded gun under the rear passenger seat. Brister called Marie to pick Diana up from the traffic stop, in violation of a no-contact order that had been imposed while he was released on bail in the 2020 case…. Brister’s criminal record … included 2006 convictions for burglary and uttering a forgery, a 2009 conviction for marijuana possession, and three convictions for burglary in 2011….

The circuit court’s sentencing remarks focused on the gravity of the offenses, noting the danger to which Brister had exposed his daughter and the seriousness of twice having a gun while intoxicated. The court summarized the most relevant sentencing factors when rejecting Brister’s recommendation for probation:

The first thing I have to consider is whether probation is appropriate. I can’t think of anything further from appropriate, than putting you on probation, for these offenses. You have demonstrated, by your behavior, not only by your criminal record, not only by your incredibly dangerous behavior in not following court orders and having that firearm and being drunk while you have the firearm, and battering [Marie], engaging in disorderly conduct. Not only that, but then adding on, that you needed to neglect and endanger your two-year-old while you were driving with her, again drunk, at incredibly high speeds, and having the firearm accessible to her. It defies description.

The court sentenced Brister to six months in jail for the OWI, concurrent to 18 months of confinement and 18 months of extended supervision for child neglect. Those sentences were made consecutive to four years’ confinement and four years’ extended supervision for the 2020 case. Thus, the total sentence for both cases was eleven years’ imprisonment, equally divided between confinement and extended supervision.

After stating the sentences, the court ordered that Brister have no contact with Marie or Diana for the entire eleven-year sentence, stating: “I’m going to find, as conditions of the time that you are on—either serving your sentence, initial confinement, or extended supervision—I’m going to order that there be a no contact order with [Marie] and [Diana].”

The appellate court held that, though restrictions on constitutional rights as part of a criminal sentence are often constitutional, this one went too far in restricting Brister’s First Amendment rights and parental rights; an excerpt:

The scope and duration of the no-contact order renders it overly broad and unreasonable with respect to Diana. The circuit court imposed the no-contact order with Diana because Diana was a victim of two of the crimes for which Brister was convicted and sentenced—child neglect and OWI (1st) with a minor in the car. However, the actual sentence for those two crimes amounted to three years of the total eleven-year sentence. The other eight years were a result of the unrelated 2020 case involving Marie.

That is, the circuit court imposed a no-contact order with respect to Diana that is almost quadruple the time of the sentence for the crime that justified the no-contact order in the first place. The circuit court did not explain this disparity, and in our view, imposing an eleven-year no-contact order between a father and his daughter is irrational (and certainly not narrowly tailored) where Brister did not cause harm to Diana and the sentence for the crime justifying the no-contact order is itself only three years.

We also view the scope of the no-contact order to be overly broad and not narrowly tailored. The circuit court correctly described Brister’s criminal acts as “dangerous,” but it failed to explain how no contact whatsoever between Brister and Diana for the entire eleven-year sentence actually protects Diana. Under the circuit court’s no-contact order, Brister is not only prohibited from unsupervised face-to-face contact with Diana, he is prohibited from communicating with her in any way, including during the period of time that Brister is confined. He cannot call, text, email, or send letters to his daughter for eleven years. Protecting Diana, as a victim of Brister’s crimes, is a significant and legitimate goal, but on this record, we see no rational connection between the scope and duration of the no-contact order and the circuit court’s purported goal of protecting Diana.

Finally, we observe that the constitutional right abridged here, Brister’s right to a parent-child relationship with Diana, is a finite right. It exists only so long as Diana is a legally recognized child. Put another way, Brister has no constitutionally protected right to a parent-child relationship with Diana after she reaches the age of majority. Diana was four years old when Brister was sentenced, meaning that Brister cannot have contact with her until she is 15 years old. The vast majority of Brister’s finite right to a parent-child relationship is, in practical terms, terminated by the eleven-year no-contact order. While being incarcerated will, in all likelihood, negatively affect the parent-child relationship between Brister and Diana, in this case, the circuit court effectively terminated Brister’s right to a parent-child relationship with Diana without any of the legal protections attendant to formally and legally terminating parental rights.

{We note that this is an extreme case. Not every no-contact order imposed under Wis. Stat. § 973.049(2) between a parent and child will effectively terminate the parent-child relationship like the one considered in this appeal. We also observe that cases involving other crimes committed by a parent against their children may well justify a lengthy and absolute no-contact condition under § 973.049(2). However, under the facts of this case, the no-contact order presented here is irrational, overly broad, and not narrowly tailored to serve the admittedly significant interest of protecting Diana.}

The post Order Barring Communication Between Inmate/Probationer and Daughter for 11 Years Is Unconstitutional appeared first on Reason.com.

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Atrocities of the Mind: Essays on Violence and Politics in the American Century, by Dwight Macdonald, edited by John Summers, University of Chicago Press, 310 pages, $25

If the mid–20th century was the nadir of American liberties and the (Caesarist) salad days of the American imperium, it was also a golden age of literary journalism whose luster was enhanced by the slashing wit of that self-described “conservative anarchist,” Dwight Macdonald. Historian John Summers has compiled 25 of Macdonald’s best essays in Atrocities of the Mind, and boy, is this ever welcome.

There is a rich conservative anarchist tradition in American life and letters. Many of its exemplars (Dorothy Day, Paul Goodman, Norman Mailer) have abided in New York City, as did Macdonald, who was born to a relatively happy Upper West Side family. (His appearance-conscious mother gussied up the family name of McDonald, adding an A and rendering the D in minuscule so as not to be taken for shanty Irish.)

As a lad at Exeter and Yale, Macdonald majored in haughty arrogance. A bizarre early detour led him through the executive training program at Macy’s, but he quickly soured on business, deciding that it was the province of “adroit opportunists,” a judgment from which he never really strayed. He married a bluestocking Trotskyite whose ample trust fund cushioned Macdonald’s fall when he quit his job as a star reporter at Henry Luce’s Fortune after his takedown of U.S. Steel—he called it “bereft of both the social intelligence of Communism and the dynamic individualist drive of capitalism”—was editorially eviscerated.

Macdonald had a brush with the Communist Party in the mid-’30s but found its partisans pious and humorless ideologues. He fell in for a while with the Trotskyites at Partisan Review before launching his own periodical, the lower-case politics, which from 1944–49 gave voice to the anarchist, pacifist, and libertarian views he would express with style and intelligence until his death in 1982.

Macdonald was the sort of anarchist not averse to calling upon President John F. Kennedy to aid the poor with “a massive increase in government spending.” Such jarring incongruities have been one of the charming quirks of American anarchists, whose ancestor Ralph Waldo Emerson spoke of a foolish consistency being the hobgoblin of little minds. No one ever accused Macdonald of having a little mind.

Looking back as an old man, he explained his anarchism: “I believe in the decentralization of authority and the ability of people to decide their own destinies. If politics begins at the bottom, people can decide much better for themselves than well-intentioned liberal bureaucrats or badly-intentioned Nixonian bureaucrats.” He added that “there are dangers to anarchism, if you think of it as just busting up things. I was appalled by the view of some student rebels that libraries were not sacred and that they could fuck up the file cards.” He’d not have been amused by the personality-disordered cretins of antifa.

Macdonald’s populist anti-state politics coexisted with his frankly elitist cultural stance, though his real beef with popular culture was that it was a top-down affair, cynically marketed to the masses, rather than a grassroots phenomenon. And really, how elitist can a man be if he counts himself a fan of Bob Hope, Jimmy Durante, and Moon Mullins?

Macdonald’s sardonic side was displayed in dozens of notorious witticisms, most famously: “The Ford Foundation is a large body of money completely surrounded by people who want some.” Charlton Heston and the cast of Ben-Hur, he wrote, are “at no point in danger of lawsuits for impersonating real people.” Assessing the crucifixion scenes in biblical epics—Macdonald reviewed movies for Esquire in the early 1960s—he called the Romans the “fall goys.”

He cut a distinctive figure in the Manhattan salons and Cape Cod beach houses in which he held court, often drunkenly. He cultivated a Leninist goatee and festooned his lapel with buttons advertising Emma Goldman and Rosa Luxemburg; while Macdonald became a favorite speaker on the New Left circuit, he never fell for Third World pinups Ho Chi Minh, Fidel Castro, or Che Guevara, excoriating them as Stalinists before bemused leftist audiences. Macdonald’s idea of a hero was Randolph Bourne, minter of the timeless aphorism that “war is the health of the state.”

It can be hard to warm up to Macdonald the man, at least as he comes down to us in anecdote and print. He appears to have been a lousy parent and adulterous husband, a forgetter of birthdays and anniversaries and other party occasions he deemed bourgeois frivolities. He was aggressively argumentative, not knowing when to just shut up. Yet Macdonald was also a lovable curmudgeon and a brave dissenter from—tormenter of—dead-end leftist ideologies and the national security state.

In Atrocities of the Mind, Macdonald’s subjects range from World War II to Vietnam, Dorothy Day to Michael Harrington, tax resistance to American manners. He is, ultimately, on the side of the human against the machine, the conscientious against the conformist. And of course there is that smiling, shoulder-shrugging inconsistency to which the writer cheerfully admitted. For instance, he hymns small voluntary communities and deplores the collectivist nightmare of New York City, which he calls an “anthill” in which people make “no eye contact” and likens to “living in a concentration camp.” That he spent more or less his entire life resident in Manhattan is a mere detail.

In both his Trotskyite and anarcho-pacifist phases, Macdonald criticized U.S. involvement in the Second World War. In the former incarnation he saw it as a battle of imperialist powers, and in the latter he saw it as, well, war, to which he was unalterably opposed.

In “The Responsibility of Peoples” (1945), he rejected the concept of collective guilt, though he skated close to the exculpatory edge when he ventured that modern man is a powerless cog in an inhuman machine, almost without agency. On whom, then, do we pin the blame for horrific crimes of state?

Without in any way minimizing the historic evil of Nazi Germany and the Holocaust or the brutality of Imperial Japan, Macdonald was among the brave few to publicly denounce the Allies’ terror bombings of civilians, and in particular the annihilation of Hiroshima and Nagasaki, which he called “morally indefensible, politically disastrous, and militarily of dubious value.”

That our government segregated soldiers by skin color and herded over 100,000 Japanese, most of them American citizens, into internment camps tarnished the white hats in this war. Even more confounding to Macdonald was the U.S. alliance with the Soviet Union. “After Hitler is defeated,” he sighed, “the same evils reappear with the hammer and sickle on their caps instead of the swastika.”

From The Bomb, Dwight Macdonald drew the lesson that “We must ‘get’ the national State before it ‘gets’ us. Every individual who wants to save his humanity—and indeed his skin—had better begin thinking ‘dangerous thoughts’ about sabotage, resistance, rebellion, and the fraternity of all men everywhere.” He found a well of hope in America’s “long and honorable tradition of lawlessness and disrespect for authority.” In the immediate postwar years he spoke at a rally praising those who had destroyed their draft cards.

By the early 1950s Macdonald had aligned himself, hedgingly, with “the West,” as he called it, doubting that there was a pacifist answer to the likes of Hitler and Stalin. Though when the relatively human Khrushchev replaced the monstrous Georgian, he swung back toward the irenic.

Dwight Macdonald is best-loved by me for his well-bred-boor-in-a-china-shop behavior at 1965’s White House Festival of the Arts, which he described unapologetically in the essay “A Day at the White House.” This catastrophe was dreamed up by the court historian Eric Goldman as a way for President Lyndon Johnson to win over American artists, or at least the culture industry.

Painters, poets, novelists, dancers, photographers, critics, and various patrons and administrators of the arts were invited to an all-day festival on the White House grounds. Some—poet Robert Lowell, critic Edmund Wilson—rejected the invite. Macdonald accepted, while acknowledging that “Emerson and Thoreau would [not] have agreed to read from their works if President Polk had staged an arts festival during the Mexican war.” Arriving in sneakers and a rumpled suit, he circulated a statement denouncing the president’s interventionist policies in Vietnam and the Dominican Republic, soliciting signatures.

Only nine signed, but Macdonald had a blast, arguing with the president’s supporters, annoying the first lady, and scoffing at LBJ’s speech. Throw in a killer set by Duke Ellington, and Macdonald counted the day a smashing success.

If any artists or intellectuals engaged in such patriotic misbehavior in the Bill Clinton, Barack Obama, or Joe Biden White Houses, I am unaware of it.

Dwight Macdonald was imperfect, as we all are. He was wrong about any number of things, as we all are. But he was unbossed, unbought, and unafraid. Oh, for more of his (one-of-a) kind in our cowardly age!

The post The Conservative Anarchism of Dwight Macdonald appeared first on Reason.com.

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From Oregon Right to Life v. O’Day, decided yesterday by Judge Mustafa Kasubhai (D. Ore.):

Oregon Right to Life … has one mission: to advocate for pro-life positions based on Judeo-Christian values. This singularly focused nonprofit, by operation of Oregon law, and in particular the religious exemption available to lawfully avoid compliance with this law, would [be forced] to purchase health insurance for its employees that would cover abortions and abortifacients—the very things the nonprofit exists to oppose on religious grounds. The Supreme Court, as this Opinion explains, has made clear that a nonprofit in Plaintiff’s position must prevail on its as-applied challenge to the “religious employer” exemption….

The Oregon Legislature enacted RHEA to “ensure[] that Oregonians have access to comprehensive reproductive health care” including abortion and contraceptives, regardless of their income or insurance coverage. RHEA requires all health benefit plans in Oregon to “provide coverage” for abortion and “any contraceptive drug, device or product approved by the United States Food and Drug Administration.” Further, a health benefit plan “may not infringe upon an enrollee’s choice of contraceptive drug, device or product and may not require prior authorization.

RHEA exempted (among other things) “religious employers” “whose purpose is the inculcation of religious values,” but Oregon Right to Life wasn’t covered because its “purpose is prolife advocacy, not inculcating religious values, and [because Plaintiff] doesn’t primarily serve persons sharing its religious tenets.” The court held that limiting the religious exemption this way involved unconstitutional discrimination among religious objectors:

In Catholic Charities Bureau, Inc. v. Wisconsin Labor & Indus. Rev. Comm’n (2025), a Catholic church-controlled non-profit social services organization brought an Establishment Clause claim after Wisconsin denied it a religious exemption from the state’s unemployment compensation system. The exemption applied to non-profits operated by churches if they were “operated primarily for religious purposes.” The Wisconsin Supreme Court found that Catholic Charities was not eligible for the exemption, interpreting “operated primarily for religious purposes” to require that the religious organization proselytize or limit its services to those who shared its beliefs to qualify for the exemption. The non-profit did not qualify because, consistent with its religious beliefs, it did not limit its services to fellow Catholics or use its charitable work to proselytize.

The non-profit appealed the denial, and the United States Supreme Court reversed … because the exemption “explicitly differentiat[ed] between religions based on theological practices,” creating a denominational preference for religions that proselytize or serve only co-religionists that “facially favors some denominations over others.” …

Both Wisconsin’s exemption in that case and Oregon’s here condition eligibility on serving only co-religionists. The exemptions require that the organization inculcate (teach) or proselytize (convert others to) their religious views. Just as these requirements led the Supreme Court to hold that Wisconsin’s exemption “facially differentiates among religions based on theological choices,” they signal that RHEA’s religious employer exemption also runs afoul of the neutrality principle of the First Amendment….

For more on the Catholic Charities precedent, see this post.

James Bopp, Joseph Maughon, and Richard Coleson (Bopp Law Firm) and Shawn Lindsay represent plaintiff.

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