Month: February 2022

Tammy Giuliani, the owner of Stella Luna Gelato Café in Ottawa, has learned a valuable lesson about privacy.

Giuliani made a $250 donation to the Canadian trucker’s convoy, the movement that briefly paralyzed Canada’s capital and garnered international attention for its protest against COVID-19 mandates. Hackers leaked information about her donation and thousands of others, leading to widespread threats and harassment against the donors. The threats forced the café to close.

“When a group of people first decided they were going to travel across the country to spread this message of solidarity, it seemed like a beacon of hope for small businesses like us,” Guiliani told the Ottawa Citizen. “In retrospect it was bad judgment, but does that mean that people have a right to threaten our staff? Does it mean people have the right to threaten to throw bricks though our window and to threaten my family?”

Americans should take two lessons from these unfortunate events. First: The right to support causes privately and keep our associations to ourselves is important to a healthy and stable civil society. We cannot rid our communities of people and businesses that disagree with us. If people who object to Black Lives Matter or the Tea Party harass every small business that supports these causes, we would soon live in a world with very few small businesses—or very little free speech. Privacy of donations allows everyone to participate in political causes without sacrificing their ability to work and live in a diverse community.

As the Supreme Court ruled in 2021’s Americans for Prosperity Foundation v. Bonta, “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” In that case, the Court upheld the rights of Americans to keep their memberships and financial support for causes and organizations private from state officials unless the government had a legitimate reason to seek the information.

In a world without donor privacy, only the loudest, wealthiest, and most shameless voices are heard, particularly in the internet age. Outrage can be harnessed faster than ever before to target individuals who otherwise would never have cause to see their name trending on Twitter.

The second lesson involves a subtler danger. America has many laws that mandate public donor exposure. Some of those laws, such as requiring public reporting of donations to candidates, are largely uncontroversial. But we should never expand such donor exposure to include Americans backing causes rather than candidates. That’s not just because the potential for harassment is genuine and severe; it’s because the information we can glean from their disclosure is often trivial, inaccurate, and prone to misuse.

Giuliani gave what she believed was a donation to a grassroots movement supporting an end to measures that have hurt her business. By the time the donation was exposed two weeks later, many Canadians had rethought their support and started seeing the convoy as an illegal occupation. The disclosure of donations such as Giuliani’s shows the transaction but none of the nuance. A small donation to an organization rarely represents a full-throated, well-informed affirmation of everything that group stands for now and in the future. But disclosure of a contribution appears as just that, and to many marks the donor as an enemy.

This is true of all disclosure rules. In Wisconsin, a nonprofit advocacy group called Wisconsin Family Action (WFA) is currently suing the Federal Election Commission because the agency’s disclosure rules are poorly crafted. The group—represented by an organization I work for, the Institute for Free Speech—occasionally speaks about elections, but that is not its primary purpose, and many donors give for other reasons. The lawsuit aims to make it clear that only those donors who intend to support the group’s political efforts need to be publicly reported, not every person who contributes over $200.

As the Institute for Free Speech explains in our case summary:

A 2018 court ruling struck down a longstanding FEC regulation stipulating that only contributors who supported a particular ad endorsing or opposing a federal candidate must be publicly exposed. Three years later, the FEC has still not replaced that regulation. The little guidance the Commission has provided suggests that nonprofits may now be forced to report general donations given for no political purpose.

This sweeping interpretation of the law could result in the public exposure of the names and addresses of every person who gives as little as $200 in a calendar year to any nonprofit group that spends just $250 on communications that advocate the election or defeat of a candidate. The threat of such widespread exposure of nonprofit donors has had a severe chilling effect on political speech.

The First Amendment and Supreme Court precedent limit the government’s power to compel public exposure of a nonprofit’s supporters. The government may only require nonprofits like WFA to report donors who intend to fund communications advocating the election or defeat of candidates, the lawsuit explains. The FEC’s vague disclosure policy violates the rights of Americans who support a nonprofit’s overall mission rather than its advocacy on campaigns.

Donor privacy may be on thin ice in Canada, but in the U.S. it still has a fighting chance. Let’s hope the courts give space for private associations to remain private.

The post Exposing Donations to Political Causes Can Chill Free Speech appeared first on Reason.com.

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From a Call for Papers from Verge: Studies in Global Asias Issue 10.1; Special Issue: brown/ness(es):

We consider race and ethnicity as co-constitutive logics and forms of difference across different geohistories, including the ways in which these logics form, transform, transfer, congeal — or not. We ask after brown, black, yellow, red, and white (and bright) as codes for difference, as metaphors of color made to matter through the matter of different bodies. We prompt reflection on how race, religion, ethnicity, and caste overlap and congeal into one another, troubling normative vocabularies of difference and relation.

I just wrote a book on racial classification, and I have no idea what this is trying to say. If I ever start to write like this, it will be time to retire from the academy.

The post "Metaphors of Color Made to Matter Through the Matter of Different Bodies" appeared first on Reason.com.

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Today the Supreme Court heard oral argument in West Virginia v. Environmental Protection Agency, the most important environmental law case the Supreme Court is hearing this term. While some warned this case could be a Waterloo for the administrative state, most of the oral argument focused narrowly on how to interpret the relevant provisions of the Clean Air Act — at least that is my preliminary reaction to today’s argument.

The focus of the case is the scope of the EPA’s authority to regulate greenhouse gases from the power sector. This matters because power plants are responsible for nearly a third of domestic greenhouse gas emissions. In advance of the case, many have raised concerns that the case could have broader impacts on federal agency regulation, particularly if the Court relies upon the major questions doctrine or nondelegation concerns to narrow the scope of the agency’s authority. I previewed the case here (and in the posts linked therein).

Over the two-plus hours of argument, the justices seemed most interested in how to interpret the language of Section 111 of the Clean Air Act (42 U.S.C. Section 7411), which is the statutory source of authority to regulate greenhouse gas emissions from power plants. The Obama Administration’s Clean Power Plan embodied a broad view of this language, that would justify regulating emissions on a system-wide basis, so as to induce fuel shifting and generation shifting. The petitioner states and coal companies, on the other hand, prefer the narrower reading adopted by the Trump Administration, under which Section 111 only allows the imposition of requirements at individual plants. As Section 111 refers to both the “best system of emission reduction” and the imposition of controls at each “existing source,” there was jousting over how the language should be read.

The major questions doctrine was raised repeatedly throughout the argument, largely as an input to the statutory interpretation inquiry, rather than as a stalking horse for the nondelegation doctrine. No justice put forward the argument that Congress lacked the constitutional authority to delegate to the EPA the authority to set emission standards for greenhouse gases. Rather, the focus was on whether Congress has delegated such authority, and whether (due to the major questions doctrine) the Court should disfavor an interpretation that would substantially broaden the EPA’s authority, such as by allowing the EPA to require system-wide emission reductions as opposed to focusing on the emission reductions that could be achieved at each plant.

The questioning also revealed that there is no clear consensus on what the major questions doctrine requires, specifically whether it is merely an aid to resolving ambiguity or whether it should operate as a broader presumption against the delegation of regulatory authority. How the Court addresses this point will be important in the ultimate opinion for the Court, as it could determine how much effect this decision has on other regulatory programs. I am still inclined to believe that the petitioners will prevail in this case, but there is some reason to believe this case will produce a narrower opinion than some had thought.

The Solicitor General and some respondents had sought to convince the Court that this case is not justiciable, either because the petitioners lack standing to challenge the lower court judgment or because the case is moot because the EPA is not currently enforcing any regulations against the petitioners. The justices did not seem particularly receptive to these arguments, however. Justice Gorsuch was the first to raise the standing question, and there was relatively little questioning focused on this concern, and minimal pushback to the petitioners’ arguments in defense of jurisdiction.

Justice Alito posed what is perhaps the key question to SG Prelogar: Is there any precedent saying that a stay moots a case? There is not. The Court’s liberals did not seem meaningfully more receptive to the justiciability concern. Justice Breyer, for instance, challenged SG Prelogar’s claim that the the D.C. Circuit’s decision does not require reimposition of the Clean Power Plan. Prelogar could not identify any portion of the D.C. Circuit decision to contradict Justice Breyer’s reading, and instead suggested he consult a subsequent EPA memorandum. West Virginia SG See hammered this point on rebuttal.

I had previously suggested that the Court should vacate the D.C. Circuit decision and remand to the agency to consider on a clean slate. This would address the petitioners’ concerns about the lower court opinions’ expansive language, while also avoid the problem of trying to discern the precise limits of Section 111 without a regulation in place that the EPA wants to defend, but it did not appear there was substantial interest in taking this route.

Interestingly enough, the nondelegation doctrine received relatively little attention during the two-plus hours of argument, other than as a factor that might influence application of the major questions doctrine. This was not a surprise to me, as this case never presented a serious vehicle for a direct nondelegation holding. It seems most of the justices agree (though this would not preclude a separate Justice Gorsuch opinion on this point). Nondelegation may still lurk in the background inducing a narrower read of the statutory language, but it does not appear a majority of the Court plans to do more than that — at least not in this case.

A few other observations:

• Female advocates are (still) a rarity at the Supreme Court. Today, however, three of the four attorneys arguing were women — West Virginia Solicitor General Lindsay See, U.S. Solicitor General Elizabeth Prelogar, and Covington & Burling’s Beth Brinkmann (on behalf of respondent power companies).
• Justice Sotomayor seemed to have difficulty keeping some of the technical details straight (which is a bit of occupational hazard for those of us who toil in environmental law). She referred to the “CWA,” which is not at issue here (but will be in another big environmental case next fall) and to the ozone layer.
• SG Prelogar suggested that because the Clean Power Plan’s emission reduction goals have been met nationally, there are no costs to states that did not meet the state-specific goals (and thus no injury) because they could easily engage in trading and the like to meet any emission reduction obligations. In other words, she seemed to be claiming that trading is costless and frictionless, so there are no transaction costs. That is quite a claim.
• Justice Breyer posed a hypothetical involving the regulation of advertising for “four foot cigars smoked through hookahs,” prompting quite the chuckle from one of his colleagues (almost certainly Justice Thomas). Brinkmann said the hypothetical was “really helpful,” prompting Justice Kagan to note that’s not how advocates typically respond to Breyer’s hypotheticals.
• Asked when the EPA could be expected to put forward a new rule governing greenhouse gas emissions from power plants, SG Prelogar said the EPA was on track to release such a regulation “this calendar year.”

 

The post Supreme Court Digs into Statutory Details More than Standing or Nondelegation in West Virginia v. EPA appeared first on Reason.com.

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A pound of rubles = a dollar. A joke from the 1990s, as I recall, which came to mind because of the ruble’s recent slide. (To be fair, the ruble was worth much less then than now; according to Wikipedia, “The ruble’s exchange rate versus the U.S. dollar depreciated significantly from $1 = 125 RUR in January 1992 to approximately $1 = 6,000 RUR when the currency was redenominated in 1998.”)

The post What Is the Exchange Rate Between Pounds, Rubles, and Dollars? appeared first on Reason.com.

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I just ran across it for the first time, so I thought I’d pass it along; it’s Schoeller v. Bd. of Reg. (Mass. 2012) (opinion by Justice Fernande Duffy):

[T]he Board of Registration of Funeral Directors and Embalmers … permanently revok[ed] Troy J. Schoeller’s licenses to do business in the Commonwealth as a funeral director and embalmer … after Schoeller made comments to a newspaper reporter about his experiences in the embalming profession and those comments were later published as part of an article about Schoeller.

Schoeller did not reveal any confidential or private information about any deceased person or bereaved family members whom he had served. Rather, the board found that Schoeller had violated an ethical regulation prohibiting an embalmer from “comment[ing] on the condition of any dead human body entrusted to his or her care,” 239 Code Mass. Regs. § 3.13(7) (1998), and that he had used unprofessional language in his descriptions of dead bodies. By doing so, the board concluded, Schoeller had “engaged in gross misconduct and unprofessional conduct which undermines the integrity of the profession.” …

The conduct at issue here occurred in late 2006, when a newspaper reporter sought to interview Schoeller about a retail clothing store Schoeller had opened in the Allston section of Boston…. Among the topics discussed that evening was Schoeller’s work as an embalmer, and Schoeller made statements describing certain of his experiences. Approximately one week later, the newspaper published an article about Schoeller that included his comments about embalming[, including:]

“‘The medical examiner cut all the bones out of this infant …,’ Schoeller recalls, ‘and they did a calvarian, which means they cut the top of your head off and take out your brain. So I had a baby that looked like a bear skin rug. I had to rebuild it in nine hours. I used everything: duct tape, masking tape, tissue builder, wound filler. I worked for nine and a half hours…. I put, like, coat hangers and caulk in there and put him into a little baby outfit. He even weighed enough too, because I packed his head and his chest. He looked awesome.’ …

“Looking over the menu … before his wife arrives, Schoeller says he can’t order the chicken satay here because when he got it last time, the skewered meat had fat chunks on it. ‘I can’t eat fat like that,’ he says. ‘And I really hate embalming fat people, like people who weigh 300 pounds. Because when you cut open a fat person,’ he says matter-of-factly, ‘butter leaks out. Literally, yellow oil leaks out of the wound and floats on top of the water. If you put butter in the microwave and put it in the water, it turns into little balls — fat globules — and that’s what comes out of fat dead people. It’s so nasty.'” …

“On the walk home to the couple’s … apartment, Schoeller thinks of something else to tell me. ‘Here’s something my friends find amusing. Decomposing bodies give off methane. What your body does with methane, it puts it all in the same place, which is your bowels. So you actually fart out dead people rot and it smells like the guy you were working on today. I’ll go home and I’ll fart and [my wife] will be like, ‘Oh my God,’ and I’ll be like, ‘That was Mr. Rosenberg [a fictitious name -EV].'”

After seeing Schoeller’s statements in the article, the chapel that employed Schoeller as an embalmer terminated his employment and filed a complaint with the board….

If interpreted literally, the regulation would not only prohibit funeral directors and embalmers from discussing an essential component of their profession in the course of their personal lives, but would also prevent any comment about a deceased’s condition to bereaved family members or to authorities to whom embalmers and funeral directors are required to report. The board has construed § 3.13(7) more narrowly; it submits that the regulation prohibits only the use of “unprofessional language,” which it defines as comments made “in an undignified and salacious manner about the condition of dead bodies.” As construed by the board, § 3.13(7) prohibits an embalmer or funeral director from making any undignified comments about dead human bodies that have ever been entrusted to his or her care, including when made in a private capacity and not as a professional and when the speech is uttered outside of the presence of the deceased or the bereaved….

While the analogy is imperfect, the regulation governing the speech of funeral services professionals, like regulations governing that of attorneys, seeks to restrict speech both when embalmers and funeral directors are acting directly in the performance of their professional capacities and when they are not providing funeral services and are not speaking in the presence of the deceased or bereaved. The board found that Schoeller’s speech, which occurred while he was not rendering professional services, violated § 3.13(7) and “constituted misconduct that undermined the integrity of the profession.” Whether the board may permissibly regulate speech in this context — where the speaker is not acting in his or her professional capacity — turns on whether the restriction is narrowly drawn and whether the board’s interest is sufficient to require that the First Amendment interests at stake must “give way to other compelling needs of society.”

Here, the board has proposed that the compelling societal need to which speech rights must give way is the integrity of the funeral services profession…. As noted, the Legislature has provided that embalmers and funeral directors may be required to abstain from using “profane, indecent or obscene language” while acting in a professional capacity, and we agree that violation of such a restriction on speech could undermine the integrity of the funeral services profession. We have recognized in other contexts that there is a “special sensitivity” required in the processing and handling of a deceased human body,  and that funeral services “are always rendered and most often contracted for under emotional circumstances.”

The board proposes that these interests require the broadening of limitations on the speech of embalmers and funeral directors to include comments made outside of funeral homes, and would extend the prohibition to comments made by embalmers and funeral directors in any context…. As we have described, however, regulations that attempt to limit the speech of licensed professionals when acting outside of their professional capacity must be narrow, and applied with precision to the type of speech that the board has a legitimate interest in regulating…. [W]e conclude that the board’s generalized interest in maintaining the integrity of the profession cannot outweigh the First Amendment rights of embalmers and funeral directors when acting outside of their professional capacity; and, even if the board’s interest could outweigh those First Amendment rights, § 3.13(7) is not sufficiently narrow to achieve that end.

The record contains numerous examples of circumstances in which the board’s regulation could reach constitutionally protected speech and potentially expose embalmers and funeral directors to discipline given the board’s prohibition of “unprofessional” or “undignified” comments. Among these examples are articles in professional publications in which the authors, who are funeral service professionals, comment on the condition of deceased bodies in graphic terms that some might subjectively view as undignified. {One such article describes in detail the “skin slip” that occurred as a consequence of bodies having been exposed to high heat in the fire that caused their deaths. In another article, an embalmer described as coming from Massachusetts offers a “Tech Tip”: “A dull [instrument] will prevent the cavity chemical from getting into [hollow organs] to do its job, and that may cause gas buildup.” Other articles detail the reconstruction of disfigured corpses, including a description of the swollen and distorted appearance of a body that had been shipped from overseas. The condition of the body “wasn’t good…. Some facial tissue was beginning to separate from early stages of decomposition.” One article is devoted to the difficulties of reconstructing the face of a teenage boy that had become distorted by a large tumor; the author wrote, “This distortion was (and probably still is) one of the most grotesque things I’ve ever seen in my life.” The author described the “tissues throughout the body” as “spongy and breaking down from the effects of drug treatment,” and proposed a procedure he had found useful in the circumstances to get “better control of the head.”} … Like these authors, Schoeller did not identify a particular deceased person or reveal confidential information about any decedent’s family. His comments described in detail the process of embalming the dead, an area recognized by the profession as one about which the public knows little and should be more informed….

In summary, while there may be circumstances in which the board can appropriately seek to limit the speech rights of licensed funeral directors and embalmers, in proscribing all “undignified” comments, the board has “traveled in the constitutionally unacceptable direction,”  of banning a substantial amount of protected speech. The board cannot apply § 3.13(7) to restrict such a wide range of speech, nor may it limit that speech by relying on a generalized notion of the integrity of the funeral services profession.

 

The post An Interesting Professional Speech Case from 10 Years Ago, Involving Speech About Dead Bodies appeared first on Reason.com.

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