June Payrolls Preview: It Could Go Either Way

June Payrolls Preview: It Could Go Either Way

Tyler Durden

Wed, 07/01/2020 – 22:04

Ahead of tomorrow’s June non-farm payrolls, consensus expects an increase of 3.1 million jobs, however with great uncertainty across estimates. Here is the rest of consensus expectations from tomorrow’s report:

  • Nonfarm Payrolls exp. 3mln (range 405k to +9mln, prev. +2.51mln);
  • Unemployment rate exp. 12.3% (range: 10.1- 15.5%%), prev. 13.3%;
  • U6 unemployment prev. 21.2%; Participation prev. 60.8%;
  • Private payrolls exp. +2.9mln, prev. +3.01mln;
  • Manufacturing payrolls exp. 311k, prev. 225kmln;
  • Government payrolls prev. -585k;
  • Average earnings M/M exp. -0.7%, prev. -1.0%;
  • Average earnings Y/Y exp. +5.3%, prev. +6.7%;
  • Average workweek hours exp. 34.5hrs, prev. 34.7hrs.

According to Standard Chartered’s Steven Englander, dropping the top and bottom 10% of payrolls forecasts still leaves a central range of 1.65-5.00mn jobs, an extremely wide band that reflects the multiplicity of shocks hitting US labor markets.

According to NewsSquawk, the March and April jobs reports saw a cumulative 22.1 million jobs shed from the US economy, and as such, analysts will be looking at the cumulative pace of recovery too; if the June consensus is realized, we will have seen around 5.5 million of those jobs return highlighting the uphill task the economy faces in ‘normalizing’.

Meanwhile, the jobless rate is seen falling to 12.3%; the Fed has projected that rate would fall to 9.3% by the end of this year, and fall further to 6.5% at the end of 2021. Analysts will pay particular attention to the participation rate, given the long-term impact participation can have on employment and wage growth levels. Heading into the data, we are deprived of some of the usual proxies we monitor to gauge the US labor market conditions; benchmark revisions diminishes the usefulness of the ADP survey, while we do not have a complete set of business surveys (notably, the services ISM will be released after the jobs report), leaving a degree of uncertainty around projections.

As Englander adds, the consensus for job gains reflects a drop in weekly initial unemployment claims and a clear but more modest drop in continuing unemployment claims, as well as less established mobility and restaurant reservation data. Even with COVID-19 resurgence fears, activity indicators were much higher in the June survey week than in May.

According to the strategist, given the multitude of stimulus programs in place, a weak number is unambiguously weak. The ambiguity lies in how much the job maintenance requirements of some programs induce temporary hiring. A strong number could reflect economic improvement or fiscal incentives to hire. Job losses have taken employment back to 2011 levels. The Fed worries that workers will be laid off if programs are scaled back, so it will likely maintain an aggressively stimulatory policy stance.  That said, once benefits start tapering out after the month of July, a second wave of mass layoffs is widely expected unless the imminent fiscal cliff is not refreshed with trillions in new stimulus.

In its preview of the payrolls, report, Goldman writes that the bank will again pay special attention to the number and share of workers on temporary layoff, which spiked to a record high 18.1mn in April and remained elevated at 15.3mn in May. Over the last 50 years, the three recessions with the highest share of temporary layoffs were followed by the fastest labor market recoveries (both absolutely and relative to consensus forecasts at the time). If year-to-date job losses remain concentrated in this segment, it would increase the scope for continued rapid payroll gains this summer.

On the other hand, if the BLS fixes the “survey error” its admitted to have made in previous months which reduced the unemployment rate by up to 3%, it is possible that a far worse number could be reported tomorrow.

To this effect, Goldman also expects that about half of the 4.9mn excess workers that were employed but not at work for “other reasons” in May will be reclassified as unemployed in the June household survey, applying upward pressure on the unemployment rate. Additionally, Goldman expects the labor force participation rate increased as business reopenings encouraged job searches. Correcting for misclassification of unemployed workers, the bank estimates the “true” unemployment rate declined more significantly, but to an even higher level (-2.4% to 14.0% in June from 16.4% in May).

Below are some other considerations heading into tomorrow’s jobs report:

PARTICIPATION:

Analysts have suggested that in the current environment, the participation rate may hold more informational value than usual. That rate has declined sharply, and since March, there has been a surge in the number of people out of work but ‘not in the labor force’ (so are not looking for a job); UBS argues that they may not have looked because they believed they would be rehired; or they may not have looked because of mobility restrictions; their detachment from the labor force may prove to be temporary. “However, sustained lower-levels of labor force participation have long-running effects on employment probabilities and wages,” the bank writes, “the slow recovery in employment after the last recession was an example, and the path of labor force participation will be key to this recovery.”

INITIAL JOBLESS CLAIMS: In the week which corresponds with the BLS jobs report data, initial jobless claims again disappointed expectations. “It’s not clear why claims are still so high; is it the initial shock still working its way up through businesses away from the consumer-facing jobs lost in the first wave, or is it businesses which thought they could survive now throwing in the towel, or both?” Pantheon Macroeconomics says; either way, it argues that the numbers were disappointing, and serve to emphasize that a full recovery is going to take a long time. It is also worth noting that after the May jobs report confounded expectations, and some reason that the analyst community may have been wrong-footed by putting too much weight onto the weekly claims data, which have recently pointed at only limited improvement in labour market conditions.

ADP: The ADP’s gauge of payroll growth in June disappointed expectations, seeing 2.37mln jobs added versus the 3mln expected; the prior, however, was significantly revised up from -2.76mln to +3.07mln; Moody’s economists said that there is no information in the revisions, which was more a reflection of the benchmarking of ADP data to the official BLS data, adding that the May payrolls were significantly overstated. Indeed, other analysts explain that the ADP data is based on a model which includes lagged official BLS data, which diminishes the usefulness of the ADP data. However, there were some interesting details in the release: leisure and hospitality sectors added 961k jobs as restaurants reopened; health care added 246k jobs, and the housing sector added 394k jobs as demand firms within the market; meanwhile, manufacturing employment was subdued, adding 88k jobs, which might indicate factories are not opening up as quickly as had been hoped. Capital Economics said the data suggests some downside risk to its above-consensus forecast for a 5mln increase in nonfarm payrolls, but notes that a research paper from the Brookings Institute last week argued that the raw ADP microdata, rather than the model-based estimates the ADP publicly release, was consistent with the stronger 5mln rise.

BUSINESS SURVEYS: The ISM manufacturing report saw the employment sub-index jump 10 points to 42.1, the largest M/M increase since April 1961; it was however the eleventh straight month of employment contraction. Nevertheless, three of the six big industry sectors saw expansion as stay-athome orders were lifted, but long-term labor market growth remains uncertain, the report stated, though signs were positive given the moderately strong new order levels and a softening of backlog contraction were encouraging signs. The ISM non-manufacturing data has not been released yet (will be published on Monday), depriving us of glimpse at employment conditions in the non-manufacturing sectors of the US.

CHALLENGER JOB CUTS: Layoffs came in at 170k in June vs the prior 397k. Challenger noted the “job cuts are trending down, as expected, as businesses begin the difficult task of reopening. However, with a resurgence in cases, millions of Americans out of work, and enhanced unemployment benefits coming to an end soon, we may expect more companies to make cuts as consumer and business spending slows.” Of the job cuts this year, COVID has been the main cause, while market conditions and demand downturn have also been cited; both knock-on effects of COVID. The fall in oil prices was cited as the reason behind some of the job losses this year, it adds. The majority of the job cuts in June comes from Entertainment/Leisure companies, retailers were second, services sector third, followed by the automotive sector.

Arguing for a better-than-consensus report:

  • Big Data. Alternative datasets generally validate this message, with sizeable increases in mobility data from Google and Homebase and an 8% increase in the employment ratio in the Dallas Fed’s Real Time Population Survey.
  • Seasonality. There should be a seasonal bias in education categories to boost job growth by roughly 0.5mn, as some of the janitors and other school staff who normally finish the school year in May and June stopped work in April.
  • Job availability. The Conference Board labor differential—the difference between the percent of respondents saying jobs are plentiful and those saying jobs are hard to get—rebounded meaningfully to -3.0 from -12.7 in May and -15.7 in April (but remains in contractionary territory).
  • Employer surveys. Business activity surveys improved on net in June but generally remained in near contractionary territory, and the employment components of Goldman’s survey trackers rebounded somewhat less sharply (non-manufacturing +5.2 to 37.6; manufacturing +5.1 to 43.8).

Arguing for a worse-than-consensus report:

  • Jobless claims. While initial jobless claims indicate that layoffs proceeded at an elevated pace (averaging 1.8mn per week), continued claims declined by 1.3mn from survey week to survey week. Furthermore, the decline in continuing claims likely understates the pace of job growth because underemployed part-time workers are still generally eligible for benefits (and the $600 benefit top-up increases the incentive to continue to file).
  • Census hiring. Census temporary workers are set to decline by 4k in June due to the coronavirus.

Neutral factors:

  • ADP. Private sector employment in the ADP report rose by 2,369k in June. While below expectations, the implications of the miss for are clouded by large swings in the statistical inputs to the ADP model this month, in our view. Our main takeaway from the report was the upbeat remarks in the report itself, which presumably is a reflection of the underlying ADP data.
  • Job cuts. Announced layoffs reported by Challenger, Gray & Christmas pulled back 51% in June to 182k after falling 45% in May and rising 266% in April. Despite the decline, they remain 304% above their June 2019 levels.

via ZeroHedge News https://ift.tt/2YTduU6 Tyler Durden

CBP Intercepts 13 Tons Of Human Hair From Chinese Prison Camps

CBP Intercepts 13 Tons Of Human Hair From Chinese Prison Camps

Tyler Durden

Wed, 07/01/2020 – 21:45

Authored by Jennie Taer via SaraACarter.com,

U.S. Customs and Border Protection at the Port of New York/Newark seized a shipment of human hair from China suspected of being “forced labor products,” according to a press release.

The packages weighed nearly 13 tons and have an estimated value of over $800,000.

“It is absolutely essential that American importers ensure that the integrity of their supply chain meets the humane and ethical standards expected by the American government and by American consumers,” said Brenda Smith, Executive Assistant Commissioner of the CBP Office of Trade.

Smith added,

“The production of these goods constitutes a very serious human rights violation, and the detention order is intended to send a clear and direct message to all entities seeking to do business with the United States that illicit and inhumane practices will not be tolerated in U.S. supply chains.”

The hair came from Lop County Meixin Hair Product Co. Ltd., which is located in China’s Xinjiang region, an area where the Chinese government has imprisoned Uighurs, a Turkic-ethnic minority.

In recent days, the Trump administration has expressed condemnation over reports indicating that Beijing is attempting to control the Uighur population through mass forced sterilization, Intrauterine Contraceptive Devices, and abortions.

According to the AP’s extensive investigation into what some are calling the Chinese government’s genocidal campaign, birth rates among the majority-Muslim group have dramatically dropped to unprecedented numbers in recent years.

Rushan Abbas, a Uighur activist living in America who spoke to the Associated Press, warned of China’s human rights abuses in detention camps where she suspects her missing sister is right now.

“This is so heartbreaking for us,” Abbas said.

“I want people to think about the slavery people are experiencing today. My sister is sitting somewhere being forced to make what, hair pieces?”

In May, CBP made a similar detainment of hair, that time synthetic hair weaves, from a company called Hetian Haolin Hair Accessories Co. Ltd. That company is also located in Xinjiang.

Moreover, the two hair companies have both been placed under CBP Withhold Release Orders, meaning CBP can seize the products for suspected ties to forced labor allowing the producer an opportunity to make their case.

via ZeroHedge News https://ift.tt/2VGjI7M Tyler Durden

“Rockland County [N.Y.] Issues Subpoenas, Fines to Contain Coronavirus Cluster”

From the New York Post (Bernadette Hogan and Jorge Fitz-Gibbon):

Rockland County is playing hardball to contain a coronavirus cluster, issuing subpoenas and threatening $2,000 daily fines to force a group of partygoers to cooperate with health officials.

At issue is a party in mid-June in the town of Clarkstown where as many as 100 people were exposed to the deadly bug and eight have already tested positive—yet the revelers refuse to assist the county, lohud.com reported Wednesday.

“My staff has been told that a person does not wish to or have to speak to my disease investigators,” county Health Commissioner Patricia Schnabel Ruppert said at a press conference.

“They hang up. They deny being at the party, even though we have found their names from another party attending or a parent provides us with the information. They do not answer their cell phones and do not call back.”

“This must stop,” Ruppert said. “Unfortunately, I am now forced by these circumstances to send subpoenas to the individuals who are required to cooperate with us. Failure to comply will be costly—$2,000 per day.” …

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Rehired Workers Get Axed As States Pause Or Reverse Reopening

Rehired Workers Get Axed As States Pause Or Reverse Reopening

Tyler Durden

Wed, 07/01/2020 – 21:25

Wall Street opened higher on Wednesday as optimism flourished following a positive COVID-19 vaccine headline (one of many we’ve seen in the last several months). It appears the hope and hype of vaccine headlines and President Trump’s pumping of a V-shaped economic recovery could be in the latter innings as confirmed cases surged across the country as governors are pausing reopenings. 

On Tuesday, more than 48,000 confirmed virus cases were reported across the US. Most of the cases were centered in these states – Arizona, California, Georgia, Idaho, Oklahoma, South Carolina, and Texas. 

Dr. Anthony Fauci told Congress on Tuesday that confirmed virus cases could spike to 100,000 – now resulting in some states to press the pause button or even reversing reopenings.

h/t Washington Post 

Many of the states pausing or reversing reopenings are across the Sun Belt region. The emergence of the virus is due to Memorial Day parties. 

Bloomberg notes reversing of planned reopenings could spark the next wave of layoffs, adding that newly hired workers are getting the ax once again. 

Jeffrey Bank, who heads Alicart Restaurant Group, was in the process of reopening his restaurant based inside the Tropicana casino in Atlantic City last week but was greeted by new communication from Governor Phil Murphy that a delayed restart of indoor dining will be seen due to a recent surge in virus cases. 

Bank said he’ll lose $100,000 on the false restart and will layoff 100 people whom he’d just recently rehired.

The surge in cases could derail nationwide reopenings – along with President Trump’s economic V-shaped recovery that he routinely touts on Twitter. Data this week shows Florida’s Miami-Dade County reported its highest numbers of hospitalizations and Houston, intensive-care units soared to 97% of capacity. 

In recent days, Arizona, Florida, Colorado, and Texas closed bars and nightclubs to contain the spread – while Arizona shutdown gyms, water parks, and movie theaters. 

Bahram Akradi, a gym owner in Arizona, said he was furious when the governor’s office told him his facilities had to close for a second time.

“No grocery store has taken our measures,” Akradi said. “No Home Depot has taken our measures. No business has taken the measures we have.”

Ron Smith owns 13 McDonald’s stores in the Las Vegas area, said his dining rooms are closing again due to the emergence of the virus. 

“We were incorrect, meaning the country,” he said, on opening up certain areas this spring. “It’s disappointing,” said Smith. 

He was not hopeful about reopening dining rooms until the spring of 2021. 

It seems a lot of the progress made during the initial lockdowns to flatten the curve are reversing: Lakeland, a Florida city, east of Tampa, has about a dozen restaurants and six bars that fear lockdowns are imminent. 

Jack McHugh, a manger of Lakeland’s mainstays, Molly McHugh’s Irish pub, worries that curfews are coming to the downtown district. 

Bloomberg notes that in states where virus cases are surging, the economy is starting to relapse as consumption plunges. 

Customer transactions at major restaurant chains had been increasing in recent weeks, even if they were still down when compared with last year. However, that momentum reversed itself in the week ended June 21 after infections rose in much of the South and West, according to market researcher NPD Group.

In Arizona, transactions at major chains had roared back and were down only 1% in mid-June from a year ago, but now they’re down 7%, NPD data show. Transactions slipped by five percentage points in both North Carolina and Nevada. – Bloomberg

Teddy Vallee, CIO of Pervalle Global, a global macro research fund, tweeted a chart of confirmed virus cases rising in California, Texas, Florida, Georgia, and Arizona, and said these states equate to 34% of US GDP.

h/t Teddy Vallee, CIO of Pervalle Global 

Goldman Sachs provides some more color via its state-level coronavirus tracker that calculates 40% of the US has now reversed or placed reopening on hold.  

h/t Goldman Sachs 

The economic recovery of the US is rapidly changing before our eyes – the overhyped “V” is now transforming to a “U” or “L” or even a Nike Swoosh.  

via ZeroHedge News https://ift.tt/3gkYPGO Tyler Durden

Stockman: The Virulent ‘Trump Derangement Syndrome’ Is Back With A Vengeance

Stockman: The Virulent ‘Trump Derangement Syndrome’ Is Back With A Vengeance

Tyler Durden

Wed, 07/01/2020 – 21:05

Authored by David Stockman via Contra Corner blog,

As the Impeachment Farce neared its pathetic denouement, an optimist might have expected that the virulent Trump Derangement Syndrome infecting the MSM, the Dems and the Washington ruling class would finally die out.

Not at all. It’s back with a vengeance, lurking in the subtext and sotto voce of virtually every headline and utterance from the above precincts with respect to the Covid-19.

Indeed, the entire Covid narrative is so hideously distorted, exaggerated, mendacious and risible as to finally confirm what’s actually been at bottom of the successive waves of RussiaGate, UkraineGate, the Impeachment Farce, the Covid-Hysteria and now the Summer of Race Huckstering, too.

Namely: Orange Man Bad!

It’s as simple and primitive as that. In the present instance, only the filter of Orange Man Bad can possibly explain each new twist and turn of the MSM’s Covid narrative, which has essentially degenerated into a running show trial-like prosecution.

But finally they have gotten so desperate and hysterical that they are just flat-out fabricating, censoring and falsifying the evidence with respect to the so-called second wave allegedly hitting the Sun Belt states.

Their true purpose however, is nakedly evident. They are so infuriated about the Donald’s claims that the virus is abating (it is) and that it’s time to reopen America and get back to business (it really is!) that they are literally attempting to tag him with de facto genocide.

Needless to say, whatever is going on in Texas, Florida and Arizona, it isn’t an eruption of the Black Plague, even if you extrapolate the current elevated level of “positives” for several months into the future.

So let us go back to the basics. Even in the worst hit precincts of New York City, there never was a random sample Grim Reaper marauding through the general population. The very bad numbers of cases and deaths coming from the five boroughs were overwhelmingly the product of a catastrophic mismanagement of nursing and other long-term care homes and other abandoned elderly already afflicted with life-threatening morbidities.

But even then, when you compare the case and death rates per 100,000 for NYC’s three most rotten boroughs – the Bronx, Queens and Brooklyn – with what is happening in the major Texas cities, for instance, it’s not the same zip code or even the same planet.

Covid Cases/Deaths Per 100,000 Persons as of June 27:

  • Bronx: 3,346/234;

  • Queens: 2,867/222;

  • Brooklyn: 2,345/198;

  • Houston: 567/7.;

  • Dallas: 696/13;

  • Fort Worth: 500/10;

  • San Antonio: 423/5;

  • Austin: 549/9;

The media drumbeat in recent days has especially focused on the alleged surge of new cases in Houston/Harris County, featuring the same old hoary prediction of overflowing hospitals and ICUs that turned out not to be true even in NYC – except for a few hospitals at the epicenter of the pandemic in the Bronx for a few peak weeks in March/April.

Yet just like in the case of the flooded NYC hospitals myth, the readily accessible facts with respect to Texas and Houston refute this weekend’s media blitz entirely.

And they also underscore the everlasting laziness and servility of the MSM. After all, if you start with a positive case rate per 100,000 in Houston that is currently only 17 percent of that recorded for the Bronx and a death rate that is only 3 percent of what occurred in the Bronx, why in the world would you even think that Houston is teetering on the edge of a medical calamity?

That’s especially the case if you happen to have the basic knowledge that Houston sports one of the great medical complexes of the entire world. That is, it’s a health care rich community experiencing only a tiny fraction of the Covid case load that happened in NYC.

Beyond that, we are no longer in the horse and buggy age, obviously. Given that patients can be reallocated to other communities if need be, the relevant hospital capacity is not just Houston’s, but capacity in other places around the state that are not experiencing the same level of Covid case increases now occurring in Houston.

So here are the statewide facts: As of June 25, Texas had 54,700 staffed acute care hospital beds, but only 41,950 were being used, implying a occupancy rate of just 76.7 percent and 12,750 empty beds still available.

Moreover, only about 5,000 beds representing 12 percent of the current census were occupied by confirmed or suspected Covid patients. So as of June 25 the state had nearly 2.5X more empty hospital beds than it had Covid patients, notwithstanding the surge of new cases and hospitalizations during the month of June.

In fact, that’s not the half of it. Owing to seasonal factors, the number of empty hospital beds has actually been rising during the spring months even in the face of the soaring Covid caseload.

That’s right. On March 18, Texas had 46,550 occupied hospital beds, reflecting an occupancy rate of 85 percent or well above the 76.7 percent level as of June 25.

But back in March virtually none of these occupied beds were attributable to Covid patients. That’s because at that point there had been only be 83 confirmed Covid cases and 2 deaths reported for the entire state!

By then what happened over the next three months, as the Covid caseload built up from zero to the present 5,000, is that even more beds emptied out due to:

– state orders prohibiting elective surgeries and other treatments;

– normal seasonal declines in occupancy; and

– aggressive reclassification of patients admitted for other reasons as Covid patients.

As to the latter point, it seems that Texas health officials started logging every single COVID-19-positive patient in the state as a COVID-19 hospitalization, even if the patients themselves were admitted seeking treatment for something other than the coronavirus.

As Lindsey Rosales, a spokesman for the Texas Department of Public Health Services, confirmed recently to an independent investigator:

‘The number of hospitalized patients includes patients with a lab-confirmed case of COVID-19 even if the person is admitted to the hospital for a different reason,’ Rosales said.

Moreover, nearly everyone admitted for some other medical condition – and presumably asymptomatic for Covid – gets tested for Covid-19 before other treatments or surgeries are permitted:

Texas Health Resources, one of the state’s largest hospital systems, says on its website that its ‘patients [are] tested before most procedures.’ Elective surgeries and other medical procedures in Texas have gone up in recent weeks as the state has gradually re-opened following its lockdown.

In other words, the first wave of Lockdowns created a huge backlog of demand for elective surgeries and other discretionary treatments, which were banned by state authorities. But once those bans were lifted and people got in the hospital for deferred treatments, they were tested for Covid and became the statistical gruel for the so-called second wave.

But even then, the Texas hospital statistics over the last three months make mincemeat out of the national media’s weekend narrative that Texas hospitals will soon be overflowing into the hallways. To wit, here is the trend of unused acute care beds in the Texas hospital system:

  • – 3/18: 8,155;

  • – 4/1: 18,411;

  • – 4/15: 21,489;

  • – 4/29: 19,432;

  • – 5/20: 16,035;

  • – 5/27: 15,315;

  • – 6/3: 15,219;

  • – 6/10: 13,271;

  • – 6/17: 14,993;

  • – 6/25: 12,571

In short, Texas had gone from virtually no Covid cases or deaths on March 18 to 131,917 cases and 2,296 deaths by June 25, but it actually had 56 percent more empty hospital beds on the latter date!

You can’t make this stuff up. The MSM is so intoxicated by Orange Man Bad that it has essentially turned journalism into a kangaroo court of juvenile imprecations.

Nor are we attempting to deceptively drown the case in statewide averages. As of last week, the Houston area alone had 12,458 staffed acute care beds (23 percent of the statewide total), but 2,675 or 21 percent of these were empty; and on top of that they had an additional surge capacity of another 925 beds.

That’s especially salient because the rise in cases in Texas and Houston has generally been among a much younger population than earlier in the pandemic, and the need has been for exactly these kinds of general beds, not ICU beds.

So the fact is, as of last week the Houston area hospitals had just 795 lab confirmed Covid patients, representing just 8 percent of their 9,785 daily census. That also means that given Houston’s 3,600 beds of remaining surge capacity, they could actually accommodate a 4X increase in their current Covid caseload.

As it happened, even the leadership of the Houston health care community finally had enough from CNN, NBC, and the rest of the Covid Calamity Howlers, and struck back this weekend with a resounding denial of this spurious crisis narrative.

For instance, the CEO of one Houston’s leading hospitals, Memorial Hermann, pulled no punches:

We actually still think we have plenty of capacity to meet the demand for Covid, as well as non-Covid patients. We’re always busy in the summertime, and what we’re seeing now is a typical summer for us.

Callender, whose not-for-profit health system has 17 hospitals in the Houston area, stressed that the medical network’s capacity is ‘constantly in flux’ and needing to be managed. ‘But right now, we’re able to do that very well,’ he said.

‘Across our system, we have about 4,000 beds that we can bring into play’ for intensive care, he said. ‘Right now, only about 30 percent are being utilized for Covid care, so we still have plenty of capacity for Covid patients as well as patients who need hospitalization for other illnesses.’

Doctors and nurses also have learned how to better treat Covid-19 patients after three months of its presence, said Callender, who joined Memorial Hermann in 2019.

‘We’re seeing a slightly lower rate in terms of the number of typical hospital bed patients who convert to a need for ICU hospitalization. We’re also using ventilators less frequently,’ he said. ‘We have more drugs at our disposable that we know help limit the severity and duration of the illness. So overall we’re faring better than we did just a couple months ago.’

Likewise, chimed in Dr. Marc Boom, President and CEO of another leading institution, Houston Methodist:

The number of hospitalizations are ‘being misinterpreted,’ said Houston Methodist CEO Marc Boom, ‘and, quite frankly, we’re concerned that there is a level of alarm in the community that is unwarranted right now.’

‘We do have the capacity to care for many more patients, and have lots of fluidity and ability to manage,’ Boom said.

Boom pointed out that his hospital one year ago was also at 95 percent ICU capacity – long before Covid was a thing!

That’s right. Apparently, 95 percent utilization of the ICU is a typical June condition, not the sign of the Covid Apocalypse. And contrary to the heated headlines on the MSM, only about 25 percent of Houston’s fully occupied ICU’s are accounted for by Covid patients.

Again from Boom:

‘It is completely normal for us to have ICU capacities that run in the 80s and 90s,’ he said. ‘That’s how all hospitals operate.’

…the hospital ‘[has] many levers in our ability to adjust our ICU,’ he said, claiming that the hospital capacity regularly reported by the media is ‘base’ capacity rather than surge capacity.

Boom also alluded to hospitals’ ability to turn regular beds into ICU beds as well as to turn recovery, and pre- and post surgical areas into ICU areas if needed as a kind of coronavirus ‘flex area.’

Specifically, there are about 2,200 ICU beds in the Houston service area, but another 500 beds could be added to this after such planned for conversions and re-purposings. And Boom also pointed out an even more salient point:

Boom said overall, hospitals are seeing younger COVID-19 patients, who stay for a shorter period of time, and fewer deaths. Houston Methodist CEO Dr. Marc Boom told CNBC on Monday that the demographics of the outbreak have ‘flipped’ and that the mostly-younger people arriving in the state’s hospitals often don’t require ICU beds, even though many do get very sick.

Finally, there was this rebuke to the smirking CNN anchor, who on Saturday had been bemoaning that the situation was allegedly so desperate that a Houston children’s hospital had been drafted into Covid service at great risk to the children.

Not at all, according to Mark Wallace, Texas Children’s Hospital president and CEO. Actually, this was just part of the systems’ surge plan:

Texas Children’s started accepting adult COVID-19 positive patients this week and is currently operating at a 74 percent ICU occupancy, Wallace said.

‘We have the ability to take care of all of the Houstonians that need a critical care environment, that need to be operated on, or acute care,’ Wallace said.

As we said, the MSM, the Dems and the Washington ruling class are literally rabid with Orange Mad Bad.

The recent ballyhooed Covid surge and hospital capacity crisis in Texas is just one more case in point.

via ZeroHedge News https://ift.tt/2YPPOQ9 Tyler Durden

Taiwan Navy Holds Live-Fire Drills With F-16s Dropping Bomb Nicknamed “The Hammer”

Taiwan Navy Holds Live-Fire Drills With F-16s Dropping Bomb Nicknamed “The Hammer”

Tyler Durden

Wed, 07/01/2020 – 20:45

Here we go again: the Taiwan Navy is conducing a show of force live-fire drill Wednesday which involves a fleet of F-16 fighter jets simulating attacks on enemy ships off Taiwan’s eastern coast, according to the country’s national news agency CNA.

Crucially the exercises involve the live deployment of multiple MK-84 general purpose bombs, which are large American-made “heavy unguided bombs” which weigh about 2,000 pounds.

CNA: F-16 fighter jet takes off from Hualien Jiashan Air Base Wednesday.

CNA describes of the bomb in what’s no doubt a hugely provocative signal to Beijing: “On impact, the MK-84 can blow apart buildings and other structures. It can penetrate metal up to 38 centimeters and concrete up to 3.4 meters, depending on the height from which it is dropped, and it causes lethal fragmentation across a radius of 370m.”

The free-fall released MK-84 was used widely by the United States in Vietnam and is nicknamed “the Hammer” – given its significant destructive power and blast radius. As it’s unguided it’s also deemed among an arsenal of “dumb bombs”.

Torpedo drills were also said to be part of these newest exercises, though there were no reported live torpedo firings. 

Mark 84 bombs, via AF.mil

But the Taiwan Navy is expected to carry out its first torpedo live-fire since 2007 on July 15, according to military sources cited in CNA.

Even throughout the pandemic China has of late made multiple intrusions in Taiwan via fighter jets and warships, also during provocative war games meant to answer Taipei and its US backers.

via ZeroHedge News https://ift.tt/2VCNb2k Tyler Durden

“Rockland County [N.Y.] Issues Subpoenas, Fines to Contain Coronavirus Cluster”

From the New York Post (Bernadette Hogan and Jorge Fitz-Gibbon):

Rockland County is playing hardball to contain a coronavirus cluster, issuing subpoenas and threatening $2,000 daily fines to force a group of partygoers to cooperate with health officials.

At issue is a party in mid-June in the town of Clarkstown where as many as 100 people were exposed to the deadly bug and eight have already tested positive—yet the revelers refuse to assist the county, lohud.com reported Wednesday.

“My staff has been told that a person does not wish to or have to speak to my disease investigators,” county Health Commissioner Patricia Schnabel Ruppert said at a press conference.

“They hang up. They deny being at the party, even though we have found their names from another party attending or a parent provides us with the information. They do not answer their cell phones and do not call back.”

“This must stop,” Ruppert said. “Unfortunately, I am now forced by these circumstances to send subpoenas to the individuals who are required to cooperate with us. Failure to comply will be costly—$2,000 per day.” …

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Out-of-School K-12 Student Speech Can’t Be Punished Even If It Causes “Disruption” at School

Students, the Supreme Court has held, do not “shed their constitutional rights to freedom of speech … at the schoolhouse gate.” Even at school and in school-sanctioned and -supervised activities, students can’t be punished for their speech unless (1) it’s highly disruptive (Tinker v. Des Moines Indep. School Dist.), (2) vulgar (Fraser v. Bethel School Dist. No. 403), or (3) encourages illegal drug use in a nonpolitical way (Morse v. Frederick). ((4) Their speech in school-organized programs, such as school newspapers can also be restricted, Hazelwood School Dist. v. Kuhlmeier.)

But what if the students are speaking outside the schoolhouse gate, outside school-sanctioned and -supervised activities, and outside school publications? It’s fairly well settled that exceptions (2) through (4) don’t apply there, but what about (1)—what if off-campus speech causes on-campus disruption?

In yesterday’s B.L. v. Mahanoy Area School Dist., Third Circuit Judge Cheryl Krause joined by Judge Stephanos Bibas held that such speech is fully protected, which is to say that it can’t lead to discipline unless it falls within a First Amendment exception (such as for threats) or can otherwise be restricted under the same rules applicable to ordinary citizens. Other circuits, however, disagree. Here’s the court’s explanation, which strikes me as quite sound:

We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur….

From the outset, Tinker has been a narrow accommodation: Student speech within the school context that would “materially and substantially interfere[ ] with the requirements of appropriate discipline” is stripped of the constitutional shield it enjoys “outside [that] context.” Tinker‘s focus on disruption makes sense when a student stands in the school context, amid the “captive audience” of his peers. But it makes little sense where the student stands outside that context, given that any effect on the school environment will depend on others’ choices and reactions.

Recent technological changes reinforce, not weaken, this conclusion. Like all who have approached these issues, we are “mindful of the challenges school administrators face,” including the need to manage the school environment in the digital age. We are equally mindful, however, that new communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. And we cannot permit such efforts, no matter how well intentioned, without sacrificing precious freedoms that the First Amendment protects. The consensus in the analog era was that controversial off-campus speech was not subject to school regulation require that we adhere to that principle even as the speech moves online.

Holding Tinker inapplicable to off-campus speech also offers the distinct advantage of offering up-front clarity to students and school officials. To enjoy the free speech rights to which they are entitled, students must be able to determine when they are subject to schools’ authority and when not. A test based on the likelihood that speech will reach the school environment—even leaving aside doubts about what it means to “reach” the “school environment”—fails to provide that clarity. The same is true for a test dependent on whether the student’s speech has a sufficient “nexus” to unspecified pedagogical interests or would substantially disrupt the school environment.

But a test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.

Nothing in this opinion questions school officials'”comprehensive authority” to regulate students when they act or speak within the school environment. Tinker applies, as it always has, to any student who, on campus, shares or reacts to controversial off-campus speech in a disruptive manner…. The school can punish any disruptive speech or expressive conduct within the school context that meets Tinker‘s standards—no matter how that disruption was “provoke[d].” It is the off-campus statement itself that is not subject to Tinker‘s narrow recognition of school authority. But at least in the physical world, that is nothing new, and no one … has second-guessed that longstanding principle or suggested that a student who advocated a controversial position on a placard in a public park one Saturday would be subject to school discipline. We simply hold today that the “online” nature of that off-campus speech makes no constitutional difference.

Nor are we confronted here with off-campus student speech threatening violence or harassing particular students or teachers. A future case in the line of Wisniewski, D.J.M., Kowalski, or S.J.W., involving speech that is reasonably understood as a threat of violence or harassment targeted at specific students or teachers, would no doubt raise different concerns and require consideration of other lines of First Amendment law. Cf. Layshock (holding that the student’s parody MySpace page was protected speech even though the school had deemed it “[h]arassment of a school administrator”); J.S (holding the same even though the school’s principal had contacted the police to press harassment charges). And while we disagree with the Tinker-based theoretical approach that many of our sister circuits have taken in cases involving students who threaten violence or harass others, our opinion takes no position on schools’ bottom-line power to discipline speech in that category.

After all, student speech falling into one of the well-recognized exceptions to the First Amendment is not protected, cf. Doe v. Pulaski Cty. Special Sch. Dist. (8th Cir. 2002) (en banc) (upholding a school’s punishment of a student who wrote a threatening letter under the “true threat” doctrine); speech outside those exceptions may be regulated if the government can satisfy the appropriate level of scrutiny, cf. Oral Arg. Tr. 28 (exploring whether actions taken to prevent student-on-student harassment could satisfy strict scrutiny); and, perhaps most relevant, the Supreme Court has recognized that a sufficiently weighty interest on the part of educators can justify a narrow exception to students’ broader speech rights, see Morse. We hold only that off-campus speech not implicating that class of interests lies beyond the school’s regulatory authority.

True, our rule leaves some vulgar, crude, or offensive speech beyond the power of schools to regulate. Yet we return to Tinker and find in its pages wisdom and comfort:

“[O]ur Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”

Tinker‘s careful delineation of schools’ authority, like these principles, is no less vital even in today’s digital age to ensure “adequate breathing room for valuable, robust speech.” For these reasons, we hold that Tinker does not apply to off-campus speech and thus cannot justify the decision to punish B.L.

In this, the majority disagreed with other circuits:

Our sister circuits have approached this issue in three ways. One group applies Tinker where it was reasonably foreseeable that a student’s off-campus speech would reach the school environment. That test sprung from trying circumstances: In Wisniewski ex rel. Wisniewski v. Board of Education (2d Cir. 2007), a student created an instant messaging icon showing “a pistol firing a bullet at a person’s head, above which were dots representing splattered blood,” and beneath which were the words “Kill Mr. VanderMolen,” the student’s teacher. That icon was visible to the student’s “buddies,” and he sent messages displaying it to fellow students. In upholding his suspension, the Second Circuit held that it was appropriate to apply Tinker because “it was reasonably foreseeable that the IM icon would come to the attention of school authorities,” and that the violence-threatening speech satisfied Tinker‘s substantial disruption standard. The Eighth Circuit, in another case involving a threat of violence, took the same approach.

But from those cases involving threats of violence, the “reasonable foreseeability” standard spread far and wide. Multiple circuits have applied it in cases involving sexual or racial harassment. See C.R. ex rel. Rainville v. Eugene Sch. Dist. 4J (9th Cir. 2016); S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist. (8th Cir. 2012). And the Second Circuit has applied it in a case involving neither violence nor harassment: In Doninger, the court used it to assess the punishment of a student who urged others to contact a school official to protest a concert’s postponement. The Eighth Circuit has likewise suggested that the standard governs all forms of off-campus speech, not just violent threats and harassment.

Another group of circuits applies Tinker to off-campus speech with a sufficient “nexus” to the school’s “pedagogical interests.” Kowalski v. Berkeley Cty. Schs. (4th Cir. 2011). Kowalski involved a student who created a MySpace page harassing a fellow student. In assessing the student’s suspension, the Fourth Circuit emphasized that student-on-student harassment “can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide.” Concluding that schools “must be able to prevent and punish harassment and bullying in order to provide a safe school environment,” the court held that the speech bore a “sufficient nexus with the school” justifying Tinker‘s application. The Ninth Circuit has also applied the nexus test in a case involving off-campus sexual harassment.

Finally, some circuits have applied Tinker to off-campus speech without articulating a governing test or standard. See, e.g., Bell v. Itawamba Cty. Sch. Bd. (5th Cir. 2015) (en banc) (declining to “adopt a specific rule” but applying Tinker to a student who “intentionally direct[ed] at the school community [a] rap recording containing threats to, and harassment and intimidation of, two teachers”); Wynar v. Douglas Cty. Sch. Dist. (9th Cir. 2013) (declining to “divine and impose a global standard for … off-campus speech” but holding that Tinker reaches off-campus speech presenting “an identifiable threat of school violence”)….

We sympathize with our sister circuits, which have faced the unenviable task of assessing students’ free speech rights against the backdrop of “school officials’ need to provide a safe school environment,” … [but] we find their approaches unsatisfying in three respects.

First, “bad facts make bad law,” and one unmistakable trend from the case law is that the most challenging fact patterns have produced rules untethered from the contexts in which they arose. The Second Circuit provides a case in point. It is understandable that the court in Wisniewski, focusing on the threat of violence bound up in the student’s speech, upheld the school’s authority to discipline him…. But in Doninger, the Second Circuit reflexively applied Wisniewski‘s reasonable foreseeability test to a fact pattern of a very different sort: a student’s protest of a school’s decision to postpone an event. What began as a narrow accommodation of unusually strong interests on the school’s side, became a broad rule governing all off-campus expression. A similar dynamic took place with the “nexus” test, in that specialized concerns related to “harassment and bullying in the school environment” produced a rule making off-campus free speech rights depend on the speech’s connection to a school’s “pedagogical interests.”

Second, and as a result of this expansionary dynamic, our sister circuits have adopted tests that sweep far too much speech into the realm of schools’ authority. Start with reasonable foreseeability. Technology has brought unprecedented interconnectivity and access to diverse forms of speech. In the past, it was merely a possibility, and often a remote one, that the speech of a student who expressed herself in the public square would “reach” the school.

But today, when a student speaks in the “modern public square” of the internet, it is highly possible that her speech will be viewed by fellow students and accessible from school. And in some situations, it is a virtual certainty: Depending on the settings favored by that student’s “friends” or “followers,” her message may automatically pop up on the face of classmates’ phones in the form of notifications from Instagram, Facebook, Twitter, Snapchat, or any number of other social platforms. Implicit in the reasonable foreseeability test, therefore, is the assumption that the internet and social media have expanded Tinker‘s schoolhouse gate to encompass the public square. That assumption is not one we can accept, though, because it subverts the longstanding principle that heightened authority over student speech is the exception rather than the rule….

The nexus test suffers from similar overbreadth. In holding that schools have regulatory authority over any speech, whether on or off campus, that “interfere[s] with the work and discipline of the school,” it collapses Tinker‘s scope of application and rule into one analytical step. The result is tautological: Schools can regulate off-campus speech under Tinker when the speech would satisfy Tinker. And the effect is to erase the dividing line between speech in “the school context” and beyond it, a line which is vital to young people’s free speech rights. Worse, in extending Tinker wherever there is a “nexus” to “pedagogical interests,” the test raises the specter of officials’ asserting the power to regulate “any student speech that interferes with [the] school’s educational mission,” a power that “can easily be manipulated in dangerous ways.”…

Third, other circuits’ approaches have failed to provide clarity and predictability….

Judge Thomas Ambro concluded that it was unnecessary to decide the broad question, because the student should clearly win even under Tinker. (The majority thought the Tinker analysis wouldn’t be so clear, so they thought it best to decide whether Tinker even applied in the first place.)

[O]urs is the first Circuit Court to hold that Tinker categorically does not apply to off-campus speech. A few Circuits have flirted with such a holding and have declined to apply Tinker to off-campus speech on a case-by-case basis. See, e.g., Porter v. Ascension Par. Sch. Bd. (5th Cir. 2004) (declining to apply Tinker where student at home drew a picture of school being attacked, and that picture inadvertently ended up on campus, because it was off-campus speech not directed at the school and the student took no step to bring the speech on campus); Thomas v. Bd. of Educ. 1 (2d Cir. 1979) (holding that school violated students’ speech rights by suspending them for publishing an underground lewd newspaper that was printed and distributed off campus, even if an occasional article was composed on campus, because the newspaper was “off-campus expression”). However, those same Circuit Courts have subsequently applied Tinker to off-campus speech….

I fear that our decision will sow further confusion. For example, how does our holding apply to off-campus racially tinged student speech? Can a school discipline a student who posts off-campus Snaps reenacting and mocking the victims of police violence where those Snaps are not related to school, not taken or posted on campus, do not overtly threaten violence and do not target any specific individual, yet provoke significant disruptions within the school? Hard to tell. We promulgate a new constitutional rule based on facts that do not require us to entertain hard questions such as these.

I would think, by the way, that the majority’s approach would indeed protect “off-campus racially tinged student speech” (unless it falls within a First Amendment exception, such as for true threats, or perhaps targets particular students for insults). The majority reasons, after all, that it’s proper to “leave[] some vulgar, crude, or offensive speech beyond the power of schools to regulate” because “our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Surely that’s true for “racially tinged” speech (and even “mocking the victims of … violence,” “police” or otherwise) as well as for speech on other subjects and with other viewpoints.

Here, by the way, are the facts of the case, though I didn’t dwell on them because the court’s reasoning is much broader than that:

Appellee B.L. failed to make her high school’s varsity cheerleading team and, over a weekend and away from school, posted a picture of herself with the caption “fuck cheer” to Snapchat. She was suspended from the junior varsity team for a year and sued her school in federal court. The District Court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. We agree and therefore will affirm.

One other important conclusion on the panel’s part (all three judges endorsed this) was that the First Amendment protected against removal from extracurricular activities and not just expulsion or suspension:

Yes, students have “a reduced expectation of privacy” under the Fourth Amendment when they participate in extracurricular athletics. Vernonia Sch. Dist. 47J v. Acton (1995)…. [But i]n the Fourth Amendment context, “the ultimate measure of the constitutionality of a governmental search is ‘reasonableness,'” a standard which “is judged by balancing [the search’s] intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” The First Amendment, however, abhors “ad hoc balancing of relative social costs and benefits.” That line dividing First from Fourth Amendment doctrine is foundational, and we will not blur it here….

The School District next offers up an analogy: that students who join extracurriculars “represent their schools much in the way that government employees represent their employer.” So by going out for the team, it posits, students subject their speech rights to coaches’ whims so long as their speech does not involve “a matter of public concern.”

This argument, however, depends on dicta from the Sixth Circuit, which went on to clarify that it was not “grafting a public concern requirement onto” student speech doctrine and had invoked the Pickering doctrine only to discuss whether “disruption will occur when a subordinate challenges the authority of his or her superior.” See Lowery v. Euverard (6th Cir. 2007). And neither “the Supreme Court nor any other federal court of appeals has held [the personal matter/public concern] distinction applicable in student speech cases.” … [S]tudents’ free speech rights are not limited to matters of public concern.

What was “unseemly and dangerous” about … efforts to … [restrict] off-campus speech [is] not the punishments the students received, but that those punishments were used to “control” students’ free expression in an area traditionally beyond regulation. Those concerns apply with equal force where a school seeks to control student speech using even modest measures, much less participation in extracurricular activities, which “are an important part of an overall educational program.” Thus, whatever the school’s preferred mode of discipline, it implicates the First Amendment so long as it comes in response to the student’s exercise of free speech rights.

The majority acknowledged that it was disagreeing on this point with Doninger ex rel. Doninger v. Niehoff (2d Cir. 2008).

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Out-of-School K-12 Student Speech Can’t Be Punished Even If It Causes “Disruption” at School

Students, the Supreme Court has held, do not “shed their constitutional rights to freedom of speech … at the schoolhouse gate.” Even at school and in school-sanctioned and -supervised activities, students can’t be punished for their speech unless (1) it’s highly disruptive (Tinker v. Des Moines Indep. School Dist.), (2) vulgar (Fraser v. Bethel School Dist. No. 403), or (3) encourages illegal drug use in a nonpolitical way (Morse v. Frederick). ((4) Their speech in school-organized programs, such as school newspapers can also be restricted, Hazelwood School Dist. v. Kuhlmeier.)

But what if the students are speaking outside the schoolhouse gate, outside school-sanctioned and -supervised activities, and outside school publications? It’s fairly well settled that exceptions (2) through (4) don’t apply there, but what about (1)—what if off-campus speech causes on-campus disruption?

In yesterday’s B.L. v. Mahanoy Area School Dist., Third Circuit Judge Cheryl Krause joined by Judge Stephanos Bibas held that such speech is fully protected, which is to say that it can’t lead to discipline unless it falls within a First Amendment exception (such as for threats) or can otherwise be restricted under the same rules applicable to ordinary citizens. Other circuits, however, disagree. Here’s the court’s explanation, which strikes me as quite sound:

We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur….

From the outset, Tinker has been a narrow accommodation: Student speech within the school context that would “materially and substantially interfere[ ] with the requirements of appropriate discipline” is stripped of the constitutional shield it enjoys “outside [that] context.” Tinker‘s focus on disruption makes sense when a student stands in the school context, amid the “captive audience” of his peers. But it makes little sense where the student stands outside that context, given that any effect on the school environment will depend on others’ choices and reactions.

Recent technological changes reinforce, not weaken, this conclusion. Like all who have approached these issues, we are “mindful of the challenges school administrators face,” including the need to manage the school environment in the digital age. We are equally mindful, however, that new communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. And we cannot permit such efforts, no matter how well intentioned, without sacrificing precious freedoms that the First Amendment protects. The consensus in the analog era was that controversial off-campus speech was not subject to school regulation require that we adhere to that principle even as the speech moves online.

Holding Tinker inapplicable to off-campus speech also offers the distinct advantage of offering up-front clarity to students and school officials. To enjoy the free speech rights to which they are entitled, students must be able to determine when they are subject to schools’ authority and when not. A test based on the likelihood that speech will reach the school environment—even leaving aside doubts about what it means to “reach” the “school environment”—fails to provide that clarity. The same is true for a test dependent on whether the student’s speech has a sufficient “nexus” to unspecified pedagogical interests or would substantially disrupt the school environment.

But a test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.

Nothing in this opinion questions school officials'”comprehensive authority” to regulate students when they act or speak within the school environment. Tinker applies, as it always has, to any student who, on campus, shares or reacts to controversial off-campus speech in a disruptive manner…. The school can punish any disruptive speech or expressive conduct within the school context that meets Tinker‘s standards—no matter how that disruption was “provoke[d].” It is the off-campus statement itself that is not subject to Tinker‘s narrow recognition of school authority. But at least in the physical world, that is nothing new, and no one … has second-guessed that longstanding principle or suggested that a student who advocated a controversial position on a placard in a public park one Saturday would be subject to school discipline. We simply hold today that the “online” nature of that off-campus speech makes no constitutional difference.

Nor are we confronted here with off-campus student speech threatening violence or harassing particular students or teachers. A future case in the line of Wisniewski, D.J.M., Kowalski, or S.J.W., involving speech that is reasonably understood as a threat of violence or harassment targeted at specific students or teachers, would no doubt raise different concerns and require consideration of other lines of First Amendment law. Cf. Layshock (holding that the student’s parody MySpace page was protected speech even though the school had deemed it “[h]arassment of a school administrator”); J.S (holding the same even though the school’s principal had contacted the police to press harassment charges). And while we disagree with the Tinker-based theoretical approach that many of our sister circuits have taken in cases involving students who threaten violence or harass others, our opinion takes no position on schools’ bottom-line power to discipline speech in that category.

After all, student speech falling into one of the well-recognized exceptions to the First Amendment is not protected, cf. Doe v. Pulaski Cty. Special Sch. Dist. (8th Cir. 2002) (en banc) (upholding a school’s punishment of a student who wrote a threatening letter under the “true threat” doctrine); speech outside those exceptions may be regulated if the government can satisfy the appropriate level of scrutiny, cf. Oral Arg. Tr. 28 (exploring whether actions taken to prevent student-on-student harassment could satisfy strict scrutiny); and, perhaps most relevant, the Supreme Court has recognized that a sufficiently weighty interest on the part of educators can justify a narrow exception to students’ broader speech rights, see Morse. We hold only that off-campus speech not implicating that class of interests lies beyond the school’s regulatory authority.

True, our rule leaves some vulgar, crude, or offensive speech beyond the power of schools to regulate. Yet we return to Tinker and find in its pages wisdom and comfort:

“[O]ur Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”

Tinker‘s careful delineation of schools’ authority, like these principles, is no less vital even in today’s digital age to ensure “adequate breathing room for valuable, robust speech.” For these reasons, we hold that Tinker does not apply to off-campus speech and thus cannot justify the decision to punish B.L.

In this, the majority disagreed with other circuits:

Our sister circuits have approached this issue in three ways. One group applies Tinker where it was reasonably foreseeable that a student’s off-campus speech would reach the school environment. That test sprung from trying circumstances: In Wisniewski ex rel. Wisniewski v. Board of Education (2d Cir. 2007), a student created an instant messaging icon showing “a pistol firing a bullet at a person’s head, above which were dots representing splattered blood,” and beneath which were the words “Kill Mr. VanderMolen,” the student’s teacher. That icon was visible to the student’s “buddies,” and he sent messages displaying it to fellow students. In upholding his suspension, the Second Circuit held that it was appropriate to apply Tinker because “it was reasonably foreseeable that the IM icon would come to the attention of school authorities,” and that the violence-threatening speech satisfied Tinker‘s substantial disruption standard. The Eighth Circuit, in another case involving a threat of violence, took the same approach.

But from those cases involving threats of violence, the “reasonable foreseeability” standard spread far and wide. Multiple circuits have applied it in cases involving sexual or racial harassment. See C.R. ex rel. Rainville v. Eugene Sch. Dist. 4J (9th Cir. 2016); S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist. (8th Cir. 2012). And the Second Circuit has applied it in a case involving neither violence nor harassment: In Doninger, the court used it to assess the punishment of a student who urged others to contact a school official to protest a concert’s postponement. The Eighth Circuit has likewise suggested that the standard governs all forms of off-campus speech, not just violent threats and harassment.

Another group of circuits applies Tinker to off-campus speech with a sufficient “nexus” to the school’s “pedagogical interests.” Kowalski v. Berkeley Cty. Schs. (4th Cir. 2011). Kowalski involved a student who created a MySpace page harassing a fellow student. In assessing the student’s suspension, the Fourth Circuit emphasized that student-on-student harassment “can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide.” Concluding that schools “must be able to prevent and punish harassment and bullying in order to provide a safe school environment,” the court held that the speech bore a “sufficient nexus with the school” justifying Tinker‘s application. The Ninth Circuit has also applied the nexus test in a case involving off-campus sexual harassment.

Finally, some circuits have applied Tinker to off-campus speech without articulating a governing test or standard. See, e.g., Bell v. Itawamba Cty. Sch. Bd. (5th Cir. 2015) (en banc) (declining to “adopt a specific rule” but applying Tinker to a student who “intentionally direct[ed] at the school community [a] rap recording containing threats to, and harassment and intimidation of, two teachers”); Wynar v. Douglas Cty. Sch. Dist. (9th Cir. 2013) (declining to “divine and impose a global standard for … off-campus speech” but holding that Tinker reaches off-campus speech presenting “an identifiable threat of school violence”)….

We sympathize with our sister circuits, which have faced the unenviable task of assessing students’ free speech rights against the backdrop of “school officials’ need to provide a safe school environment,” … [but] we find their approaches unsatisfying in three respects.

First, “bad facts make bad law,” and one unmistakable trend from the case law is that the most challenging fact patterns have produced rules untethered from the contexts in which they arose. The Second Circuit provides a case in point. It is understandable that the court in Wisniewski, focusing on the threat of violence bound up in the student’s speech, upheld the school’s authority to discipline him…. But in Doninger, the Second Circuit reflexively applied Wisniewski‘s reasonable foreseeability test to a fact pattern of a very different sort: a student’s protest of a school’s decision to postpone an event. What began as a narrow accommodation of unusually strong interests on the school’s side, became a broad rule governing all off-campus expression. A similar dynamic took place with the “nexus” test, in that specialized concerns related to “harassment and bullying in the school environment” produced a rule making off-campus free speech rights depend on the speech’s connection to a school’s “pedagogical interests.”

Second, and as a result of this expansionary dynamic, our sister circuits have adopted tests that sweep far too much speech into the realm of schools’ authority. Start with reasonable foreseeability. Technology has brought unprecedented interconnectivity and access to diverse forms of speech. In the past, it was merely a possibility, and often a remote one, that the speech of a student who expressed herself in the public square would “reach” the school.

But today, when a student speaks in the “modern public square” of the internet, it is highly possible that her speech will be viewed by fellow students and accessible from school. And in some situations, it is a virtual certainty: Depending on the settings favored by that student’s “friends” or “followers,” her message may automatically pop up on the face of classmates’ phones in the form of notifications from Instagram, Facebook, Twitter, Snapchat, or any number of other social platforms. Implicit in the reasonable foreseeability test, therefore, is the assumption that the internet and social media have expanded Tinker‘s schoolhouse gate to encompass the public square. That assumption is not one we can accept, though, because it subverts the longstanding principle that heightened authority over student speech is the exception rather than the rule….

The nexus test suffers from similar overbreadth. In holding that schools have regulatory authority over any speech, whether on or off campus, that “interfere[s] with the work and discipline of the school,” it collapses Tinker‘s scope of application and rule into one analytical step. The result is tautological: Schools can regulate off-campus speech under Tinker when the speech would satisfy Tinker. And the effect is to erase the dividing line between speech in “the school context” and beyond it, a line which is vital to young people’s free speech rights. Worse, in extending Tinker wherever there is a “nexus” to “pedagogical interests,” the test raises the specter of officials’ asserting the power to regulate “any student speech that interferes with [the] school’s educational mission,” a power that “can easily be manipulated in dangerous ways.”…

Third, other circuits’ approaches have failed to provide clarity and predictability….

Judge Thomas Ambro concluded that it was unnecessary to decide the broad question, because the student should clearly win even under Tinker. (The majority thought the Tinker analysis wouldn’t be so clear, so they thought it best to decide whether Tinker even applied in the first place.)

[O]urs is the first Circuit Court to hold that Tinker categorically does not apply to off-campus speech. A few Circuits have flirted with such a holding and have declined to apply Tinker to off-campus speech on a case-by-case basis. See, e.g., Porter v. Ascension Par. Sch. Bd. (5th Cir. 2004) (declining to apply Tinker where student at home drew a picture of school being attacked, and that picture inadvertently ended up on campus, because it was off-campus speech not directed at the school and the student took no step to bring the speech on campus); Thomas v. Bd. of Educ. 1 (2d Cir. 1979) (holding that school violated students’ speech rights by suspending them for publishing an underground lewd newspaper that was printed and distributed off campus, even if an occasional article was composed on campus, because the newspaper was “off-campus expression”). However, those same Circuit Courts have subsequently applied Tinker to off-campus speech….

I fear that our decision will sow further confusion. For example, how does our holding apply to off-campus racially tinged student speech? Can a school discipline a student who posts off-campus Snaps reenacting and mocking the victims of police violence where those Snaps are not related to school, not taken or posted on campus, do not overtly threaten violence and do not target any specific individual, yet provoke significant disruptions within the school? Hard to tell. We promulgate a new constitutional rule based on facts that do not require us to entertain hard questions such as these.

I would think, by the way, that the majority’s approach would indeed protect “off-campus racially tinged student speech” (unless it falls within a First Amendment exception, such as for true threats, or perhaps targets particular students for insults). The majority reasons, after all, that it’s proper to “leave[] some vulgar, crude, or offensive speech beyond the power of schools to regulate” because “our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Surely that’s true for “racially tinged” speech (and even “mocking the victims of … violence,” “police” or otherwise) as well as for speech on other subjects and with other viewpoints.

Here, by the way, are the facts of the case, though I didn’t dwell on them because the court’s reasoning is much broader than that:

Appellee B.L. failed to make her high school’s varsity cheerleading team and, over a weekend and away from school, posted a picture of herself with the caption “fuck cheer” to Snapchat. She was suspended from the junior varsity team for a year and sued her school in federal court. The District Court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. We agree and therefore will affirm.

One other important conclusion on the panel’s part (all three judges endorsed this) was that the First Amendment protected against removal from extracurricular activities and not just expulsion or suspension:

Yes, students have “a reduced expectation of privacy” under the Fourth Amendment when they participate in extracurricular athletics. Vernonia Sch. Dist. 47J v. Acton (1995)…. [But i]n the Fourth Amendment context, “the ultimate measure of the constitutionality of a governmental search is ‘reasonableness,'” a standard which “is judged by balancing [the search’s] intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” The First Amendment, however, abhors “ad hoc balancing of relative social costs and benefits.” That line dividing First from Fourth Amendment doctrine is foundational, and we will not blur it here….

The School District next offers up an analogy: that students who join extracurriculars “represent their schools much in the way that government employees represent their employer.” So by going out for the team, it posits, students subject their speech rights to coaches’ whims so long as their speech does not involve “a matter of public concern.”

This argument, however, depends on dicta from the Sixth Circuit, which went on to clarify that it was not “grafting a public concern requirement onto” student speech doctrine and had invoked the Pickering doctrine only to discuss whether “disruption will occur when a subordinate challenges the authority of his or her superior.” See Lowery v. Euverard (6th Cir. 2007). And neither “the Supreme Court nor any other federal court of appeals has held [the personal matter/public concern] distinction applicable in student speech cases.” … [S]tudents’ free speech rights are not limited to matters of public concern.

What was “unseemly and dangerous” about … efforts to … [restrict] off-campus speech [is] not the punishments the students received, but that those punishments were used to “control” students’ free expression in an area traditionally beyond regulation. Those concerns apply with equal force where a school seeks to control student speech using even modest measures, much less participation in extracurricular activities, which “are an important part of an overall educational program.” Thus, whatever the school’s preferred mode of discipline, it implicates the First Amendment so long as it comes in response to the student’s exercise of free speech rights.

The majority acknowledged that it was disagreeing on this point with Doninger ex rel. Doninger v. Niehoff (2d Cir. 2008).

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And Another N.Y. Bill Targeted at “Hate Speech” (and Advocacy of Boycotts of Friendly Countries)

The bill, S.5285, was filed in May 2019 by state senator Robert G. Ortt, but was resubmitted in January 2020 to the Senate committee on higher education:

[a.] The state university trustees[, city university trustees, and community college trustees] shall adopt rules that any student group or student organization that receives funding from the state university of New York that directly or indirectly promotes, encourages, or permits discrimination, intolerance, hate speech or boycotts against a person or group based on race, class, gender, nationality, ethnic origin or religion, shall be ineligible for funding, including funding from student activity fee proceeds.

[b.] … “Boycott” shall mean to engage in any activity, or to promote or encourage others to engage in any activity, that will result in any person [including corporations and other nongovernmental entities] abstaining from commercial, social or political relations, with any allied nation, or companies based in an allied nation [defined to include NATO members, SEATO members, Rio Treaty members minus Venezuela, Ireland, Israel, Japan, and South Korea] or in territories controlled by an allied nation, with the intent to penalize, inflict, or cause harm to, or otherwise promote or cast disrepute upon, such allied nation, its people or its commercial products.

But when student groups or organizations get generally available funding from public universities, the university must distribute this money in a viewpoint-neutral way, see Rosenberger v. Rector (1995) and Christian Legal Society v. Martinez (2010). That means that the government can’t exclude speech that “encourages … discrimination, intolerance, hate speech or boycotts.” (Discrimination against allegedly bigoted speech is of course viewpoint discrimination, see Matal v. Tam (2017).)

A rule that government funds can’t be used by a group to actually discriminate, or to actually refuse to deal with particular firms, would be constitutional (see this post), because it would be a restriction on conduct (discriminatory refusals to deal) and not speech. But restricting promoting or encouraging discrimination and boycotts is restricting speech based on viewpoint.

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