Month: February 2020

There hasn’t been much love for social media companies at this week’s Conservative Political Action Conference (CPAC), a massive annual D.C. gathering of the American right.

With its colossal presence, CPAC has the power to drive messaging within the Republican Party, and this year’s meeting—replete with anti-tech sentiment—will be no different. A source familiar with the conference’s planning process tells Reason that some conservatives during plenary sessions voiced their opposition to the big-tech hostility, yet the organizers apparently ignored those concerns. Plenty of conservatives still hold tightly to free speech absolutism and limited government, but anyone watching CPAC could easily forget that.

The anti-tech fervor took center stage on Friday morning, with Sen. Josh Hawley (R–Mo.), Rep. Kevin McCarthy (R–Calif.), and Donald Trump, Jr., each of whom presented their case against social media with claims of censorship and bias against conservatives.

“With our base, across the country, this is probably a top 3 issue,” Trump Jr. declared. “It’s not free market, because they’re getting so many benefits and protections from the federal government that they cannot discriminate so flagrantly the way they have against conservatives.”

Hawley agreed. “We’ve got to make sure that we get the fair treatment that everyone else does,” he said, noting that Facebook, Twitter, and Google should not be getting “special deals from government.”

This was a reference to Section 230 of the Communications Decency Act, which lets companies remove user-generated content without being legally liable for the millions of daily third-party posts on their platforms. Anti-230 activists often claim that dead-tree publishers are legally liable for the posts they put out, so Section 230 draws an unfair legal distinction between publishers and platforms. But that dichotomy is entirely false and remains one of the biggest misconceptions about the law. The law contains no references to “publishers” and “platforms”; it applies to anyone who runs a site with user-generated comment.

It wasn’t the only anti-tech blast at the conference. A Thursday panel on social media began with remarks from Carpe Donktum (faux Latin for “seize the donkey”), a Twitter personality whose main claim to fame is his pro-Trump memes. He lamented an unfair online culture, which he said was epitomized by Reddit “quarantining” its major Donald Trump thread. (The company did so after finding violent threats against public officials.) “Without social media and without all of you and myself and other people on the stage being able to speak out and point out the lies of the media and the Democrat party, it will be very hard for us to win 2020,” he said.

Carpe Donktum’s Twitter account, which he sometimes uses to lament such censorship, boasts more than 234,000 followers.

Two panelists expressed similar sentiments. “If we don’t fix this problem, conservatives will cease to exist online,” said Dan Gainor of the Media Research Center. Jon Schweppe, director of government affairs for the American Principles Project, worried that “a few incredibly large multinational corporations” would claim “the ability to declare that it is hate speech to say that there are two genders.”

It’s not unreasonable to be perturbed when Facebook, Twitter, and other platforms claim that their content evaluation processes are devoid of any personal influence. No human reviewer is completely unbiased nor any algorithm perfectly tuned. But Schweppe and Gainor wanted the government to solve the problem, and their ideas about how it should do so oscillated between impossible policy prescriptions and pure mystery.

“The First Amendment is very basic,” said Schweppe. “It’s very easy to understand, and we understand that free speech is centered by private actors, who, by the way, don’t have the consent of the government, then that’s a real problem.”

The First Amendment should be easy to understand, but it is not entirely clear that Schweppe understands it. Its prohibitions apply solely to the government, not private to companies—a drum that conservatives used to beat very loudly, until it no longer suited their ideological interests. The courts have upheld that legal standard repeatedly, with the most recent ruling arriving in response to a conservative content maker’s suit against YouTube. When Prager University accused the platform of infringing its right to free speech by placing a small portion of its videos on Restricted Mode, an optional service that about 1.5 percent of the site’s viewers use to filter out mature content, the Ninth Circuit Court of Appeals fundamentally rejected the argument.

Thursday’s panel did include two voices from the other side of the debate. “I can’t believe I’m doing this, because I’m here to convince you at a conservative conference that government shouldn’t regulate speech,” said Ashkhen Kazaryan of TechFreedom. She and Chris Butler of Americans for Tax Reform posed the question: What will conservatives say when a liberal president is in office and the government enjoys such powers?

It wasn’t entirely clear just how the panel’s anti-tech advocates would like to alter the First Amendment standard. Schweppe did mention the idea of removing Section 230 protections, taking a page from Hawley’s book, but such a move could very likely result in far more censorship. Without legal protections, companies like Facebook and Twitter would be incentivized to scrap questionable content at much higher rates for fear of landing in court.

Alternatively, companies could give up on content removal efforts entirely. Republicans might change their minds about the merits of that idea once Facebook, Twitter, and YouTube are no longer allowed to remove porn.

The ideal world constructed by Schweppe, Gainor, Trump Jr., and Hawley would still have content moderation—they just want it to be perfect. It never will be.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: A special live episode at University of Georgia Law featuring Prof. Michael Wells of UGA, Prof. Eric Segall of Georgia State, and Andrew Fleischman of Ross & Pines. Thanks to FedSoc and ACS for sponsoring the event!

• Washington, D.C. wine bar that hosts private events for international delegations and domestic public interest groups sues President Trump, alleging that he and the Trump International Hotel engaged in unfair competition by using the perception that, by patronizing the hotel, lobbyists and diplomats would ingratiate themselves to the president. The president removes the case to federal court, where it is dismissed for failure to state a claim: D.C. Circuit: Which was the correct result. Merely having a famous proprietor is not unfair competition. (No word on how control of the world’s most powerful military should weigh into the analysis.)
• In a short opinion, the Second Circuit politely reminds district courts that they really oughtn’t dismiss cases under the Rooker-Feldman doctrine anymore.
• Drug dog alerts to package arriving in the U.S. Virgin Islands. Turns out there are no drugs, but there are gun parts and ammunition. A search of another package from the same sender turns up similar contraband, leading to the sender’s arrest for illegal transport of a firearm. Defendant: They’re the U.S. Virgin Islands, so the border exception to the warrant requirement doesn’t apply. The evidence should be thrown out. Third Circuit: There are different kinds of borders, and although the Virgin Islands are a U.S. territory, Congress has established a customs border between them and the mainland, so the evidence stays in.
• In a short opinion, the Sixth Circuit also politely reminds district courts that they really oughtn’t dismiss cases under the Rooker-Feldman doctrine anymore. Judge Sutton concurs to politely remind district courts that, for the love of all that is holy, they need to knock this off already.
• Nashville, Tenn. officer, responding to an alarm at a night club, arrests man outside, declines to investigate man’s story that he spent the night working in the club and his belongings are locked inside. (Criminal charges are dropped.) A Fourth Amendment violation? Although the officer was “either mentally deficient or dishonest” during deposition, the district court grants the officer qualified immunity. But the Sixth Circuit reverses, explaining that the officer’s refusal to consider the circumstances was the “antithesis of probable cause.” But the dissent argues that the officer should be forgiven because it was late at night and cold outside; it’s the club manager who’s to blame.
• Battle Creek, Mich. officer, responding to reports of an armed man at a drive-thru liquor store, finds a teenage boy armed with a black BB gun. In a two-second flurry, the boy discards the gun and the officer shoots the boy. The precise sequence of events is disputed. Sixth Circuit: Because everything happened so quickly, the officer gets qualified immunity. Dissent: “It should go without saying that reasonable police officers do not shoot disarmed young boys with upraised hands.”
• After three and a half years of litigation and more than a thousand docket entries in this protracted attorneys’ fees dispute, the Seventh Circuit delivers a well-deserved bench slap to the opposing counsel from hell (who still walks away from it all with $800,000 in attorney’s fees).
• Eight years after the death of his wife, Illinois criminal defense lawyer is charged with her murder. After two trials, he is finally acquitted in March 2017. Shortly thereafter he sues the police, the coroner, and others, alleging they had framed him. Must the judge recuse herself because her daughter is an attorney at the Exoneration Project, a group funded by the lawyer’s lawyers? Seventh Circuit: No, the daughter has been screened off from the case. Her merely being related to the judge isn’t enough to merit recusal, nor is the judge’s previous attendance at an Innocence Project fundraising dinner at which the plaintiff and other exonerees were honored.
• After a Dallas, Ore. school district adopts a new policy allowing a transgender male high school student to use boys’ bathrooms and locker rooms, the parents of students who feel uncomfortable changing clothes in front of someone born biologically female sue, alleging a host of constitutional objections, along with a Title IX claim. Ninth Circuit: We recognize the sensitivities of all involved, but the claims fail.
• After YouTube restricts access to and demonetizes educational videos by conservative group Prager University, PragerU sues, alleging that YouTube violated the group’s First Amendment rights and violated the Lanham Act by falsely advertising that it is committed to free speech. Ninth Circuit: Friendly reminder that the First Amendment restricts only government action. YouTube may be a virtual public square, but that doesn’t make it a state actor. As for YouTube’s “braggadocio” about its commitment to free speech, that’s all nonactionable puffery.
• After pulling a woman over for a busted taillight, LAPD officers arrest her for an outstanding warrant. She informs them that, due to a shoulder injury, she cannot place her hands behind her back. They ignore this and her cries of pain, handcuff her behind her back. Excessive force? District court: Qualified immunity—no case says cops can’t do that. Ninth Circuit: Uh, no. We’ve said for more than 20 years that cops can’t handcuff a suspect in a way to cause pain if there’s no immediate threat. Might’ve violated the Americans with Disabilities Act, too.
• Allegation: A week prior to teen’s homicide trial, Hobbs, N.M. auto shop owner produces invoice showing that the car police suspected was used in drive-by shooting was in fact in the repair shop—something police could easily have verified the day after the shooting, nine months earlier. Police obtain a warrant for business records related to repair of the car and enter the owner’s residence (which is on the same property as the shop) with guns drawn, seize all electronic devices. An unreasonable search and seizure? Retaliation for producing exculpatory evidence? District court: Can’t sue over that. Tenth Circuit: Can’t sue over that.
• Wichita, Kan. police shoot and kill an unarmed man as he walks to a parking garage after last call. Police say the man had a gun, and they saw him shoot it. Everyone else says he didn’t and, therefore, couldn’t. Medical experts say the police shot that man at least three times while he was lying face down on the ground. Tenth Circuit: The officers are entitled to qualified immunity for (1) shooting an unarmed man and (2) failing to warn him before they opened fired. But no qualified immunity for (3) shooting while the man posed no threat, lying on the ground. Dissent: “The Constitution clearly prohibited both officers from shooting an unarmed individual posing no threat to anyone.”
• When a quinquagenarian detainee at Cobb County, Ga. jail politely asks a guard to make a phone call, the guard shoves the detainee to the concrete floor, breaking his hip. Then, as the man howls in pain, the guard tries to drag him to his feet and berates him. This being the twelfth time the guard had been investigated for violating jail policies and the sixth time he was found to have violated them, he’s fired. Eleventh Circuit: The detainee can sue the (now-ex) guard. Partial dissent: He should be able to sue the supervisors, too.
• In 2016, railroad asks the feds for permission to convert a 1.2-mile stretch of track in Miami into a recreational trail. Abutting landowners: Whoa, the railroad got permission (in 1924) to conduct trains through our backyards. If they want to use the land for something else, the gov’t must pay just compensation. Federal Circuit: Florida law does indeed give landowners bordering railroads an ownership interest up to the center line of the right of way. (N.B.: We have it on good authority that nearly every other state has a similar law.) The suit should not have been dismissed.

When the port district officials in Louisiana condemned Violet Dock Port’s port business, the company was awarded almost $30 mil in just compensation after a trial. The port district took the property (and continues running the port business at a profit), but there’s a twist! Despite the judgment, the district says it doesn’t want to pay anything for the property and nobody can make it. Which, argues the Institute for Justice in this amicus brief filed with the Fifth Circuit, is only half right.

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Activists in Boston are trying to delay the construction of a 10,000-unit development project on a mostly dormant race track. Sen. Bernie Sanders (I–Vt.) just weighed in on their side, raising the disquieting prospect that the Democrats’ presidential frontrunner could become the nation’s NIMBY-in-chief.

In early February, the Boston-area group Lawyers for Civil Rights filed a complaint with the U.S. Department of Housing and Urban Development (HUD). It claims that city housing officials failed to provide meaningful and inclusive opportunities for community participation during their (still ongoing) review of the proposed Suffolk Downs development project.

“We need affordable housing for all instead of more gentrifying luxury developments for the few,” Sanders tweeted alongside an article about the group’s HUD complaint. “I stand with the longtime residents of East Boston fighting displacement from the communities they have spent generations building.”

We need affordable housing for all instead of more gentrifying luxury developments for the few. I stand with the longtime residents of East Boston fighting displacement from the communities they have spent generations building. https://t.co/OGpZAD755O

— Bernie Sanders (@BernieSanders) February 27, 2020

The project itself would displace no one. The 161-acre site on the edge of East Boston currently hosts only a race track, a clubhouse, a vacant administration building, and horse barns described in city documents as “dilapidated and unsuitable for further use.” HYM Investments wants to redevelop the area into a mixed-use development sporting 10,000 new housing units, plus retail, office, and hotel space.

In keeping with Boston’s inclusionary zoning requirements, the Suffolk Down development includes 930 below-market-rate units that would be reserved for tenants making no more than 70 percent of the area’s median income ($55,550 for a single person). HYM would also contribute $5 million to a housing stabilization fund, with the money going to convert existing rental housing into income-restricted units. That’s supposed to create an additional 500 affordable units.

HYM would spend $41 million on off-site roadway improvements, $20 million on public transit in Boston and neighboring Revere (where part of the Suffolk Downs site is located), and $3 million in operations subsidies to a rail transit line servicing the area. The developer intends to use union labor and to contribute $2 million to trade apprenticeship and workforce development programs. HYM has also agreed to reserve a certain portion of its construction jobs for local residents, people of color, and women.

A spokesperson for HYM told Reason that the project has already received its needed permits from the city of Revere and the state of Massachusetts; it hopes to get Boston’s approval in the next few months.

The activists’ complaint argues that the project needs to be delayed because of some translation issues. Close to half the residents of the East Boston neighborhood that borders the Suffolk Down site primarily speak a language other than English (mostly Spanish or Arabic). The complaint argues that the Boston Planning and Development Agency (BPDA) failed to adequately translate enough of the project documents, or didn’t translate them quickly enough, to allow for limited-English-proficiency speakers to meaningfully participate in community review of the project.

Their complaint says that interpreters at public hearings were often unable to translate technical terms about the project into Spanish and that translation equipment was either unavailable or was “was hampered by high levels of static and failed batteries.”

They also say that none of the project documents were translated into Arabic.

This failure to offer adequate translation services, they claim, has so hampered community input that it amounts to national origin–based discrimination in violation of Title VI of the 1964 Civil Rights Act. The activists are asking that city officials halt their review of the project and that HUD suspend all funding to Boston housing agencies until an investigation can be completed.

“We are not anti-development. We are pro-growth—smart and equitable growth,” said Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights, in a press release announcing the complaint. “By failing to hire interpreters versed in the language of planning or zoning, or to translate key documents, the BPDA is effectively excluding immigrant residents of East Boston from the development process. Under well-settled federal law, this exclusion constitutes national origin discrimination.”

In addition to the translation issues that the group has raised, an October letter from Lawyers for Civil Rights raised a number of other demands. Among them: that HYM make a larger housing stabilization payment, that its affordable units be reserved for those making 30 percent of area median income, that the city enforce a carbon-neutral standard on the development, and that private security guards hired by HYM to protect its construction receive implicit bias training.

HYM has addressed some of these concerns in updates to in a revised Master Plan dated from last week, including a promise to ensure more documents are translated into Spanish and any other language spoken by more than 5 percent of the East Boston neighborhood.

The development agency has responded to the complaint by stressing the things it has done to accommodate non-English speakers during the review process. The Boston Business Journal reports that “each BPDA public meeting for Suffolk Downs has included Spanish-language translation, and there have been two meetings exclusively in Spanish, the agency said. Numerous project documents are also available in both English and Spanish.”

A cynical observer might conclude that Lawyers for Civil Rights is using its HUD complaint to gain leverage over HYM.

Delays to construction projects are expensive. If federal housing regulators decide there’s reasonable cause to believe that shoddy translation services amounted to illegal discrimination, the project could be gummed up in administrative hearings or even a Department of Justice–led civil lawsuit.

At some point, HYM might decide that the demands being made on its project are less costly than the legal delays they have to put up with. This is hardly an uncommon tactic. Labor unions in California, for instance, routinely use the threat of environmental lawsuits to get developers to agree to hire all union labor.

Private parties can also file their own discrimination lawsuits within two years of the alleged discrimination. The time it takes for HUD to process a discrimination complaint isn’t included in that two-year deadline.

Why would Sanders weigh in on this case? There’s obviously a political incentive. The Massachusetts Democratic primary is on Tuesday. While Sanders is currently favored to win that contest, he’ll still be competing for progressive votes with Sen. Elizabeth Warren (D–Mass.) on her home turf. Signal-boosting the local left’s efforts isn’t likely to hurt his chances.

Sanders also has a long history of demonizing developers and lending support to NIMBYs who oppose market-rate housing construction on principle. His comments about how the Suffolk Downs project will lead to displacement and gentrification fit neatly into that worldview.

The HUD complaint notes that East Boston has seen a growing number of cases where longtime tenants are evicted en masse from their homes, presumably so that the units can be renovated and leased out to higher-paying tenants. Allowing Suffolk Downs to go forward without additional affordability requirements or other concessions, the activists argue, will just mean more of the same.

But allowing a massive development right next to a poorer neighborhood would be great way to reduce evictions. This is the YIMBY (Yes In My Backyard) argument at its most basic. If you don’t build housing for better-off people, they’ll respond by bidding up the prices on existing units, which then leads to evictions and displacement.

Sanders’ willingness to parrot NIMBY talking points bodes ill for what housing policy would look like under his administration if he were to win the White House. The Lawyers for Civil Rights argument bases its discrimination claims on past executive orders and regulations, which HUD officials will rely on when adjudicating the complaint. As president, Sanders would be in a position to issue new regulations and guidance that could make proving housing violations easier, potentially empowering anti-development activists across the country.

Given the severe and worsening housing affordability problems the country is facing, that could be disastrous.

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ZeroZeroZero. Available Friday, March 6, from Amazon Prime.

Amazon Prime’s ZeroZeroZero might be the most extensive collection of narcotrafficker aphorisms ever, sort of a Red Book of the cocaine trade.

There’s “Disappointment allows not for mercy,” from an Italian godfather whose family disposes of its mistakes by feeding them to pigs. (And by mistakes, I do not mean impure batches of coke.) There’s a self-important American deal broker who likes to say that “what we do keeps the entire worldwide economy afloat” without identifying who, exactly, plays the role of the Federal Reserve in his dope version of “too big to fail.” He’s also the one who explains the Narcotrafficer Code of Honor: “It doesn’t mean you have to be good, just upright.”

The problem with that one is that very few of the characters in ZeroZeroZero are upright for long, in any sense of the word: They’re loyal only to cash flow and almost all of them end up prone, either in coffins or pigs’ digestive systems.

ZeroZeroZero—the show’s name is a reference to another trafficker saying, a play on the rating system for Italian baking flour, in which “zero, zero” is the top grade—is a grim, gritty and gory tale of the cocaine trade. It has none of the glamor or high-octane sexuality of Scarface or Miami Vice. The bosses mostly live not in capacious art-deco palaces but in drab fortifications; they wear not Armani but body armor; they spend their spare time not nuzzling supermodels but in paranoid contemplation of who might be plotting against them.

Correction: The word “paranoid” is not appropriate, for these enemies are all too real. The central motif of Zero is betrayal. Every character is machinating against every other, or soon will be; neither blood nor money ensures loyalty. Both the traffickers and the cops who hunt them are soulless. Zero is a riveting program, but only because the plot is sociopathically intense; there’s nobody to root for, or even against. Every time you think you’ve identified the character who’s the absolute bottom-dwelling dregs of the bunch, the plot will twist toward even more depravity.

Based on the 2013 novel of the same name by Italian journalist Robert Saviano, Zero is the story of the damage wrought by a single shipment of 5,000 kilos of cocaine that impels three sets of characters on a collision course. The cocaine has been ordered by a craggy old Calabrian mafioso known as Don Minu (Italian actor Adriamo Chiaramida), who has emerged from a secret fortified cave after the end of a gang war and wants to get back into the game. But the payment for the drugs is hijacked by his grandson Stefano (newcomer Giuseppe De Domenico), seeking vengeance for an old family feud and not at all averse to getting rich in the process.

The missing money creates headaches, the .38-caliber kind, for the Lynwoods, the New Orleans shipping family that brokered the cocaine deal between the Italians and the Mexican producers of the drug. Patriarch Edward (Gabriel Byrne) wants to stay in the cocaine business because a single load brings in as much as his legal shipping business nets in a year. His daughter and second-in-command Emma (Andrea Riseborough, Black Mirror) argues that the Lynwoods have no experience with the hardball part of the business and would be better off getting out. Son Chris (Dane DeHaan, True Blood) has been systematically excluded from the drug operations because the family fears the stress will trigger the crippling Huntington’s disease gene he inherited from his mother, but he knows a lot more than anybody’s aware.

The final side of this triangle is a squadron of Mexican anti-drug police whose skill with torturing informants and planting wiretaps has enabled the cops to listen in on the negotiations over the drugs and missing money. Sergeant Manuel Contreras (Harold Torres, El Chapo), the leader of the squad, is a man of intense religious faith, but as might be guessed from his nickname—Vampiro—its theology is of uncertain direction.

The multinational team of writers and directors, including Saviano himself, that produced Zero have employed an elliptical form of story-telling that often circles back onto itself—particulary in the early episodes, when the various collections of characters haven’t encountered one another yet. But they pull it off much better than you might expect, and Zero is far easier to follow than any number of flashback-driven U.S. shows on the air at the moment.

Their tightly drawn approach to the screenplay does not allow the cast any scenery-chewing theatrics or peak emotional moment, but all of the actors are quite adept at projecting a taut air of menace and, occasionally, fear. Not since The Wire has a TV series more explicitly portrayed the corruption and violence that the war on drugs visits on both its players and its bystanders. “Certain things, among decent people, should never happen,” one of Zero‘s narcotraffickers muses to another. Oh, but they do, over and over.

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