Month: November 2020

As of today, the 10 million residents of Los Angeles County can no longer legally congregate with people outside of their immediate family, unless it’s for the purposes of outdoor protest or religious gathering. Playgrounds—you know, those places in California’s abundantly pleasant outdoors where children, who are disproportionately unlikely to contract, transmit, or suffer from COVID-19, can feel like human beings for brief respites—are once again banned, unless they are attached to schools (which are almost all shut) or day care centers. Restaurants cannot accept even outdoor customers.

All this despite the fact that L.A. County’s seven-day positive-test rate for the novel coronavirus is at just 6.9 percent, which would rank around 38th in the country if the County of Angels was a state. The overall positivity rate in California is even lower, though that hasn’t stopped Gov. Gavin Newsom and the state’s largely Democratic political class from enacting some of the harshest clampdowns in the United States.

How did we get here, and how can we get out? Such forms the bulk of the debate on today’s Reason Roundtable. Also up for discussion: media hysteria, President-elect Joe Biden’s crappy Cabinet picks, and what Unorthodox can teach us about voice, exit, and coronavirus.

Speaking of plagues: Right the hell now is your final opportunity to submit questions for Roundtable podcasters Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward, to be addressed during our annual Webathon, which starts presently. Please email stumpers to podcasts@reason.com before December 1. You’ll be glad you did!

Audio production by Ian Keyser and Regan Taylor.

Music: “government funded weed” by Black Ant.

Relevant links from the show:

“Anthony Fauci: ‘Close the Bars and Keep the Schools Open,’” by Robby Soave

“Americans Are Starting a Staggering Number of Businesses During the COVID-19 Pandemic,” by Eric Boehm

“Pandemic Rules Are Only for the Little People,” by J.D. Tuccille

“Paul Krugman Thinks Holding Religious Services During the COVID-19 Pandemic Is Like ‘Dumping Neurotoxins Into Public Reservoirs,’” by Jacob Sullum

“SCOTUS Blocks New York’s COVID-19 Restrictions on Houses of Worship, Saying They Are Not ‘Narrowly Tailored,’” by Jacob Sullum

“Denver Mayor Michael Hancock Urged People Not To Travel for Thanksgiving Shortly Before Boarding His Flight,” by Christian Britschgi

“Masks Have Helped To Blunt the COVID-19 Pandemic in Kansas,” by Ronald Bailey

“Senseless Restrictions on Outdoor Activities Undermine the Goal of Curbing COVID-19,” by Jacob Sullum

“Americans Are Nowhere Near Herd Immunity to COVID-19,” by Ronald Bailey

“Glenn Greenwald on Biden, Free Speech, and Leaving The Intercept,” by Nick Gillespie

“Will Obama Torture Apologists Make a Triumphant Return to Joe Biden’s White House?” by Scott Shackford

“Joe Biden’s Secretary of State Pick Has Been an Avid Backer of American Military Intervention,” by Christian Britschgi

“If Joe Biden Is Serious About Criminal Justice Reform, He Won’t Pick Merrick Garland for Attorney General,” by Damon Root

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From today’s decision by Judge Robert Pitman in National Press Photographers Ass’n v. McCraw (W.D. Tex.), in which plaintiffs brought a First Amendment challenge (among other challenges) to the Texas statute limiting drone photography (note that this doesn’t deal with normal trespass law, which might cover certain drone usage that is physically over private property):

The Surveillance Provisions [Sections 423.002, 423.003, 423.004, and 423.006] declare it unlawful to “capture an image of an individual or privately owned real property in [Texas] with the intent to conduct surveillance on the individual or property contained in the image.” …

Plaintiffs are challenging the use of UAVs for the purpose of newsgathering and recording, “which is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” ACLU of Ill. v. Alvarez (7th Cir. 2012). Plaintiffs have plausibly alleged that the surveillance provisions are burdening expressive conduct—taking photos and video for newsgathering purposes. To the extent that Defendants argue that “surveillance” is distinguishable from photography and therefore the surveillance provisions are not prohibiting protected expressive conduct, that argument only highlights the dispute over the vagueness of the term “surveillance.”

Content-based restrictions on First Amendment protected activity “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” A regulation of speech is content-based if it either “applies to particular speech because of the topic discussed or the idea or message expressed,” or discriminates between speakers in a way that “disfavors” certain speakers from exercising their First Amendment rights.

Plaintiffs have sufficiently pled that the Surveillance Provisions apply speaker-based discrimination and are thus content-based. Plaintiffs argue that because the Surveillance Provisions exempt certain speakers from liability, other speakers such as journalists face liability because of the type of speaker they are. Certain individuals are permitted to capture UAV images under the Surveillance Provisions, such as professors,students,professionalengineers,andinsurancecompanyemployees.

Defendants argue that these exemptions are not speaker-based discrimination because the same person could be permitted to use a UAV for an academic purpose, but not for newsgathering—regardless of that person’s identity. The Court disagrees that Defendants’ distinction means the Surveillance Provisions are not speaker-based. The regulation is not speaker-neutral just because one person may simultaneously fall into multiple categories of speakers under the Surveillance Provisions. Instead, the Surveillance Provisions are discriminating based on the type of speaker someone is at the time they are using a UAV because of the exceptions listed in Section 423.002….

{Plaintiffs also argue that the Surveillance Provisions are content-based because they include exemptions based on the purpose of the images captured with a UAV, such as “professional or scholarly research,” operations and maintenance of utility or telecommunications facilities,” and “mapping.” Defendants argue that because the same image can be prohibited or allowed under the Surveillance Provisions based on how it is being used, the content of the image is not the discriminating factor. Because there is also speaker-based discrimination requiring the application of strict scrutiny, the Court does not reach this issue.}

As a result, the Court should apply strict scrutiny. See Sorrell v. IMS Health Inc. (2011). Even assuming that Defendants will demonstrate a compelling government interest, Plaintiffs have plausibly argued that the Surveillance Provisions are not narrowly tailored to protect this interest in light of the numerous exceptions included in the Surveillance Provisions. Plaintiffs question why government interests in privacy and public safety are implicated for journalists using UAVs, but not for other individuals exempted under the Surveillance Provisions. The Court agrees that some of these exceptions leave open the question of whether the Surveillance Provisions are narrowly tailored. As a result, Plaintiffs’ complaint has plausibly alleged that the Surveillance Provisions impermissibly impose content-based restrictions….

I’m inclined to agree that the speaker classification here is content-based, because the only explanation for the preference for certain speakers is that the government expects them to produce content that it sees as more valuable than the content produced by other speakers.

The court also concluded that the Surveillance Provisions were “impermissibly vague because they do not define the term ‘surveillance'”:

[A]t no point do Defendants attempt to define the term “surveillance” or point to any authority or evidence that outlines what type of UAV use is prohibited under “surveillance.” They argue that Plaintiffs have not shown their actions would violate the Surveillance Provisions, but never take a stance on whether the activities at issue would be prohibited by the Surveillance Provisions.

Defendants instead argue it is a factual inquiry as to whether Plaintiffs’ conduct is prohibited by the Surveillance Provisions, not a question of whether the provisions are themselves vague. However, Defendants never indicate what interpretation of the Surveillance Provisions should govern such a factual inquiry, and instead only assert that “[o]rdinary persons are perfectly capable of understanding the meaning of the word ‘surveillance.'” With multiple possible broad dictionary definitions from Plaintiffs, and  no clarity offered from Defendants, the Court finds that Plaintiffs have plausibly pled that the Surveillance Provisions are unconstitutionally vague.

The court then turned to the No-Fly Provisions, which ban the use of drones “over a correctional facility, detention facility, or critical infrastructure facility” or “over a sports venue,” and ban “drones from ‘mak[ing] contact with’ such a facility or to allow it ‘to come within a distance … that is close enough to interfere with the operations of or cause a disturbance to the facility'”:

Plaintiffs plead that the No-Fly Provisions violate the First Amendment as an unconstitutional restraint on expressive conduct. In the alternative, Plaintiffs also plead that the No-Fly Provisions impose an incidental restraint on protected conduct, in which case intermediate scrutiny applies. Under intermediate scrutiny, regulation is only permissible if the government has the power to enact the regulation and the regulation (1) “furthers an important or substantial government interest” that is (2) “unrelated to the suppression of free expression” and (3) narrowly tailored to advance that interest. Plaintiffs have sufficiently pled facts to plausibly allege the No-Fly Provisions are unconstitutional under intermediate scrutiny.

Even assuming the No-Fly Provisions further an important government interest and that interest is unrelated to the suppression of free expression, which the parties dispute, Plaintiffs have adequately pled the No-Fly Provisions are not narrowly tailored. While Defendants have pointed to government interests that may be sufficient to meet the first requirement of an important or substantial government interest, Plaintiffs allege that the exemptions for commercial interests in the No-Fly Provision undercut the purported importance of these government interests.

The Court agrees that Plaintiffs have plausibly raised questions as to how these government interests could be threatened by newsgathering but not by commercial activities. This inconsistent prohibition of UAVs indicates that the No-Fly Provisions are restricting more speech than necessary to achieve the government’s alleged interests.

Plaintiffs have also plausibly pled that the No-Fly Provisions are vague and overbroad because “commercial purpose” is not defined in the exemptions from the No-Fly Provisions and is often construed to exclude newsgathering. Plaintiffs cite multiple dictionary definitions of “commercial” that do not provide clear guidance on whether photojournalism is included. For instance, “the buying and selling of goods” seems less likely to include photojournalism. Whereas Plaintiffs assert that other dictionaries define “commercial” to mean any moneymaking enterprise, seemingly more likely to include photojournalism within the definition.

But the court rejected the plaintiffs’ claims that the No-Fly Provisions were preempted by the federal scheme for regulating aviation safety.

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From an order issued today (see pp. 8-10 of Usherson v. Bandshell Artist Management):

This matter comes before the Committee on Grievances for the Southern District of New York … to consider the imposition of discipline against respondent Richard Liebowitz … based upon charges brought against him by the Committee on August 5, 2020 …. Given the current status of the investigation as confidential, both the Charges and the investigation underlying their imposition are referenced without detail in this Order.

The full Committee [on Grievances for the Southern District of New York] (consisting of Chief Judge McMahon, Judges Castel, Daniels, Nathan, Stanton, Vyskocil, Magistrate Judges Aaron, Cott, and McCarthy, and the undersigned as Chair) has now reviewed [Respondent Richard Liebowitz’s] submission, as well as the record developed during the Committee’s investigation. After careful deliberation, the Committee is unanimously of the view that the Charges are strongly supported by the record. What is more, the Committee is unanimously of the view that interim disciplinary measures against Respondent must be put in place immediately….

The record in this case—which includes Respondent’s repeated disregard for orders from this Court and his unwillingness to change despite 19 formal sanctions and scores of other admonishments and warnings from judges across the country—leads the Committee to the view that recurrence is highly likely. In short, in light of the nature and seriousness of the Charges, the strength of the record supporting those Charges, and the risk and danger of recurrence, the Committee concludes that an interim suspension of Respondent from the practice of law before this Court pending final adjudication of the charges against him is warranted.

In the exercise of its discretion, the Committee will defer the final adjudication of the charges against Respondent currently pending before this Committee, as well as any other charges this Committee sees fit to bring against Respondent in the future as part of these disciplinary proceedings, until after Respondent has had an opportunity to present his defense to the Charges at an evidentiary hearing before a Magistrate Judge of this Court.

Accordingly, for the reasons set forth above, Respondent is hereby suspended from practicing law in the Southern District of New York, effective the date hereof, pending the outcome of these proceedings and  until further order of this Court. It is further ordered that Respondent is commanded to desist and refrain from the practice of law in the Southern District of New York in any form, either as principal or agent, clerk or employee of another; that Respondent is forbidden to appear as an attorney or counselor-at-law before any judge or Court in the Southern District of New York; that Respondent is forbidden to give another an opinion as to the law or its application or advice in relation thereto as to any matter in the Southern District of New York, all effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded and until further order of this Court.

This decision may have been related to the June 26 referral by Judge Jesse Furman in Usherson, in an opinion that began thus:

Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in this District in 2017. Since that time, he has filed more cases in this District than any other lawyer: at last count, about 1,280; he has filed approximately the same number in other districts. In that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District. Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz’s misconduct, which includes repeated violations of court orders and outright dishonesty, sometimes under oath.

He has been called “a copyright troll,” McDermott v. Monday Monday, LLC, No. 17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26, 2018); “a clear and present danger to the fair and efficient administration of justice,” Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *13 (D. Colo. May 11, 2020); a “legal lamprey[],” Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR), 2020 WL 2219070, at *4 (S.D. Ill. May 7, 2020); and an “example of the worst kind of lawyering,” id. at *3. In scores of cases, he has been repeatedly chastised, warned, ordered to complete ethics courses, fined, and even referred to the Grievance Committee. And but for his penchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailing his misconduct—set forth in an Appendix here—would undoubtedly be longer.

But as the opening paragraph notes, the precise charges are not currently public.

For more on the Richard Liebowitz saga, see some of these posts.

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