Month: February 2017

It’s the early days of a presidency that has openly declared itself to be hostile to the media (and to be fair—the reverse is also true), and Ari Melber, MSNBC’s legal correspondent and a lawyer, has what he thinks to be a brilliant idea—let’s have the federal government get more involved in evaluating the legitimacy of news.

I’m not a big MSNBC viewer, but I’m fairly sure that they haven’t suddenly become big supporters Donald Trump’s presidency. That’s not what Melber is going on about. Rather, what Melber has suggested is that the federal government, particularly the Federal Trade Commission (FTC), can use its authority to protect consumers from fraudulent advertising claims in order to fight the existence of “fake news.” He suggests that by classifying disprovable media claims as fraudulent, the government has the authority to intervene. “Fraud” is not considered protected speech. He makes the case in a piece for the New Jersey State Bar Association:

To follow First Amendment precedents, the framework could limit the FTC to only regulating posted articles—not seeking prior restraints against future articles—and to only regulate businesses devoted to fraud news.

Legally, a focus on deceptive businesses keeps the FTC in the ballpark of commercial speech, patrolling deceptive practices taken in pursuit of commerce. During the election, the most popular fraud news sites were launched by business people, often abroad, enticed by the market online for political news. They were trying to make money, not express any particular view. …

Since these sites are clearly operating as businesses, it is logical to regulate their commerce and deceptive practices like any other business.

A focus on deceptive businesses would also keep the government away from meddling with actual journalists or citizens exercising their right to lie while engaged in politics.

Where to begin here. First of all most media outlets—whether legitimate or “fake”—are trying to make money, most were launched “by business people,” and many are not trying to express any particular view. But some are. “Making money” and “expressing any particular view” are neither opposing choices, nor or they determinants of the validity of the existence of a media outlet. And that a media outlet might be a venture designed to make money doesn’t mean it suddenly becomes exempt from the First Amendment protections that the government cannot censor the press.

But that’s just semantics (and frustration at people who work in the media who think they aren’t already engaged in acts of commerce). The much bigger, so much more important issue here is what it would actually look like were a government agency to decide that it can use a tool to fight consumer fraud to monitor the legitimacy of news.

We already saw what happened when the whole latest outburst about “fake news” happened during the election. People went looking for resources that separated “real” news from “fake” news and we ended up in a place where media outlets with heavily ideological slants were dumped in with media outlets that were deliberately making up stuff.

You don’t have to go very far to determine what could happen when a politicized apparatus (and every government agency is partly political) can have control over what can be defined as “fraud” when it comes to information. You don’t even have to leave this site! Several attorneys general for states across the country have teamed up to go after ExxonMobil for its participation in the larger debate over climate change. They have decided to attempt to prove that ExxonMobil knew more about what was going on with the burning of fossil fuels and the environment and deliberately attempted to mislead investors and customers. They are attempting to reclassify the debate (free speech) as deliberate consumer fraud (not free speech).

To do so, they’ve attempted to subpoena decades of communications between ExxonMobil and various policy groups in order to fish for information they hope will make that case. One of the policy groups targeted is the Reason Foundation, the nonprofit think tank that publishes Reason.com and Reason magazine. Reason was dragooned into a highly politicized case where government officials deliberately attempted to reclassify public debate as “fraud” in order to target a disliked business. One of the AGs involved, Kamala Harris, is now a United States senator.

Given Trump’s general attitude toward the press and his propensity to declare unflattering coverage to be fake or fraudulent, you don’t have to be either a lawyer or a journalist to recognize the very, very bad potential consequences of Melber’s proposal. Nobody should make the mistake of assuming that the FTC’s behavior would be a value-neutral analysis of truth vs. falsehood. Our government has an extremely lengthy history of applying regulatory pressure in ways that favor whoever is in power and the allies of said people.

Since the left these days is quick to point out the ties between Trump and Russia, let’s remind folks like Melber that Russia passed a law classifying discussions of gay relationships in the media (and the public) as propaganda and criminalized it, meaning that the government sees the concept of same-sex couples and families as a fraudulent proposal. If you give the government the power to decide what news is “fake,” you will create an environment where people will very quickly want to weaponize it for their own ends.

A few weeks back, I noted the story of James Mussenden, a retired city manager from El Monte, California.

A quick recap: in a town where more than a quarter of the population is living below the poverty line, and where the median household income is a mere $32,000, Mussenden is pulling down a $216,000 annual pension (along with free healthcare and annual cost of living increases). The Los Angeles Times uncovered Mussenden’s outrageous pension—which, as the paper reported, he feels awkward talking about with his golf buddies.

With retirement promises like that, it’s no surprise that El Monte is dealing with one of the worst pension crises in a state full of municipal pension messes. Last year, more than a quarter of the city’s budget was spent on benefits for retired public workers.

Now, Mayor Andre Quintero tells the Los Angeles Times that there’s “no rational justification” for the extraordinary pensions that are busting his city’s budget and enriching a few hundred former employees. Yet, because those benefits are written into the city’s collective bargaining agreements, he tells the Times that it can be undone only through negotiations with unions.

As the Times put it: “El Monte’s predicament reflects the deep difficulty of reining in public pension costs.”

Yes, but there’s more to it than that. El Monte’s “predicament,” like similar predicaments facing municipalities from coast to coast, is of its own making. City officials signed off on these generous pension benefits when they reached collective bargaining deals with public sector unions. El Monte’s pension problems are particularly acute because of a special loophole opened by the city in 2000 allowing El Monte city employees to qualify for a second pension as county employees too.

Some 200 former city employees, including Mussenden, are legally double-dipping because of that loophole.

The problem is one of incentives. Public sector unions have a strong incentive to get the best possible benefits for their members, of course. City officials are supposed to be negotiating on behalf of taxpayers, but often times they have a stronger incentive to give in to union demands in order to maintain labor peace or to reward valuable political allies who help keep election coffers filled.

The same story plays out in small cities like El Monte and big ones like Chicago.

Adding to El Monte’s predicament is the fact that courts in California (and most other states) have long held that pensions are locked-in and cannot be reduced even if a city is unable to meet the obligations.

That’s one thing that might be changing. The California Supreme Court will take up a case later this year challenging that long-standing legal framework—known as the “California Rule.” If the state Supreme Court upholds a lower court ruling (which upheld a pension reform signed by Gov. Jerry Brown in 2011) saying that says municipalities can cut unearned benefits for future employees, it would give places like El Monte a little bit of flexibility when it comes to paying off their debt.

Even if the Supreme Court upholds the reform, it won’t affect already-retired workers like Mussenden, who will get to keep cashing his six-figure pension checks until he dies.

People for the American Way (PFAW) cites Gutierrez-Brizuela v. Lynch, a 2016 decision by the U.S. Court of Appeals for the 10th Circuit, as evidence that Neil Gorsuch is unfit for the Supreme Court. Meanwhile, in a New York Times op-ed piece, Neal Katyal, a solicitor general in the Obama administration, cites the same case as an illustration of “Why Liberals Should Back Neil Gorsuch.” These diametrically opposed takes show why it is hazardous to view constitutional law as a battle between liberals and conservatives.

PFAW does not like Gorsuch’s questioning of the Chevron doctrine, which says courts should defer to executive agencies’ interpretations of ambiguous statutes, even to the point of reversing prior judicial interpretations. “Eliminating this principle…would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people,” PFAW says. It neglects to mention that Gutierrez-Brizuela involved immigration law, and Gorsuch came down on the side of a longtime resident trying to legalize his presence in the United States. Sounds kinda liberal, no?

The decision dealt with an apparent conflict between two provisions of immigration law. One gives the attorney general “discretion to ‘adjust the status’ of those who have entered the country illegally and afford them lawful residency.” The other “provides that certain persons who have entered this country illegally more than once are categorically prohibited from winning lawful residency…unless they first serve a ten-year waiting period outside our borders.”

In 2005 the 10th Circuit ruled that the first provision supersedes the second, so even residents who have illegally entered the country more than once can still obtain legal status without waiting 10 years outside the United States. Two years later, the Board of Immigration Appeals (BIA), an administrative agency, decided the second provision limits the attorney general’s discretion, meaning the waiting period is unavoidable. In a 2011 case, the 10th Circuit acceded to the BIA’s interpretation, as required by the Chevron doctrine.

Last year’s case involved an unauthorized immigrant, Hugo Rosario Gutierrez-Brizuela, who petitioned for a change of status before the new interpretation was adopted. In the majority opinion, Gorsuch noted that applying the new interpretation retroactively would not only violate the usual rules of statutory construction but raise “due process and equal protection concerns,” since immigrants who had made decisions based on the previous interpretation would suddenly have the rug pulled out from beneath them:

After all, back in 2009 the law expressly gave Mr. Gutierrez-Brizuela two options: he could seek an adjustment of status…or accept a ten-year waiting period outside the country. Relying on binding circuit precedent, he chose the former path. Yet the BIA now seeks to apply a new law to block that path at a time when it’s too late for Mr. Gutierrez-Brizuela to alter his conduct. Meaning that, if we allowed the BIA to apply Briones here, Mr. Gutierrez-Brizuela would lose the seven years he could’ve spent complying with the BIA’s ten year waiting period and instead have to start that waiting period now. The due process concerns are obvious: when Mr. Gutierrez-Brizuela made his choice, he had no notice of the law the BIA now seeks to apply. And the equal protection problems are obvious too: if the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter.

Gorsuch also wrote a concurring opinion, and that is where he directly challenged the Chevron doctrine, which PFAW presumably would argue was unnecessary to resolve the issue of retroactivity. But in the concurring opinion Gorsuch emphasized that Chevron deference endangers liberty by weakening the separation of powers, under which Congress passes laws, the executive branch enforces them, and courts decide disputes about their meaning. “The founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights,” he wrote. “A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.” Giving one agency the power to interpret and rewrite the law as well as enforce it poses a clear threat to people at the agency’s mercy, including highly vulnerable people like Gutierrez-Brizuela.

Here is how Katyal, who notes that he and Gorsuch “come from different sides of the political spectrum,” describes the judge’s position in Gutierrez-Brizuela and an earlier immigration case that addressed a similar issue:

Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants. In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch’s interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers. When judges defer to the executive about the law’s meaning, he wrote, they “are not fulfilling their duty to interpret the law.” In strong terms, Judge Gorsuch called that a “problem for the judiciary” and “a problem for the people whose liberties may now be impaired” by “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.” That reflects a deep conviction about the role of the judiciary in preserving the rule of law.

Critics of Gorsuch should not be taken seriously if they can’t recognize (or refuse to acknowledge) the ways that “conservative” convictions can achieve liberal ends.

From 12-1 ET today, like yesterday, I’ll be guest-hosting The Dean Obeidallah Show on SiriusXM Insight, channel 121. Sitting with me throughout the show will be the very funny cabby-turned-comedian Jimmy Failla, who, along with world-famous busblogger (and Uber/Lyft driver) Tony Pierce, will have a spirited discussion in the back half of the show about the whole #DeleteUber reaction to the ride-sharing company not participating in the New York Taxi drivers’ mini-strike in protest of Donald Trump’s executive order on worldwide refugees and travelers from seven other countries.

But in the first half we’ll have Reason‘s own beloved Supreme Court analyst Damon Root talking about the judicial philosophy of SCOTUS nominee Neil Gorsuch, and then (voting schedule willing!) we’ll talk to Rep. Justin Amash (R-Mich.) about where he stands on the travel ban here on Day 6.

Please call in, especially during the second half, at 1-877-974-7487!