Month: April 2022

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

Is there such a thing as the “Will of the People”? Over at Liberal Currents, Anthony Sanders, the director of IJ’s Center for Judicial Engagement, humbly submits that if there is one it’s an indeterminate mist—and, moreover, that judges do a lot of harm by attempting to divine the People’s Will instead of dispassionately interpreting the law.

• First Circuit: We’re going to reinstate this First Amendment lawsuit by Courthouse News Service, seeking faster access to newly filed complaints in state court. (But we’ll also note in passing that when the Seventh Circuit considered the same issue, it abstained.)
• After being struck in the head with a metal handlebar, called the n-word, and having his life threatened by four white men in Lewiston, Me., Black man retrieves a gun from his home nearby, returns to the scene, and fires a shot into a dirt pile. For this, he is convicted and sentenced to three years in prison. First Circuit: It’s concerning that, among other things, the only Black potential juror in the 32-person venire was struck for a seemingly trivial reason, only having an 11th grade education. But habeas denied.
• If you saw two guys named Sex Offender and Political Speaker, which one would you think got meaningful, evidence-focused judicial review of their right to engage in anonymous online speech? We’d say Political Speaker, wouldn’t you? Second Circuit: You’d be wrong, though. It’s Sex Offender.
• After the plaintiff prevails at summary judgment in his due-process challenge to North Carolina’s sex-offender registry, the state legislature changes the law to fix the due-process problems. That means the judgment, which was still on appeal, is vacated as moot. State officials: And that means the plaintiff doesn’t get attorney’s fees because he isn’t a “prevailing party” anymore. Fourth Circuit: Did you guys miss the part where he prevailed? It’s right there in the first sentence.
• Allegation: After reporting sexual harassment by a supervisor, federal public defender in North Carolina is, among other things, retaliated against and effectively forced to resign. Fourth Circuit (sans any Fourth Circuit judges): Some of her constitutional claims should not have been dismissed.
• LEGAL ALERT! Are you a West Virginia lawyer who does plaintiffs-side drug and device product liability lawsuits? Do you like to run advertisements featuring the logos of gov’t agencies like the FDA? Have you been ordered to STOP using the word “recall” in reference to things that have not been recalled? If so, contact your local federal appellate court to find out if your First Amendment rights have been violated. (Fourth Circuit: They have not.)
• Allegation: Without warning, Baytown, Tex. police violently yank woman, who is perhaps drunk but in no way threatening, to ground. Excessive force? District court: Could be! Fifth Circuit: Reversed. She was awfully mouthy and the police only hurt her a little, so the force wasn’t excessive. Besides, qualified immunity means we don’t judge officers’ actions with the benefit of hindsight. [Ed.: Nuh-uh.]
• During plea bargaining, prosecutors will often offer criminal defendants an escape from unconscionably long mandatory minimum sentences if they waive their right to appeal their conviction or challenge it on collateral review. It’s a system that’s ripe for abuse and coercion. But, per the Sixth Circuit, that’s no reason for a district judge to have a blanket rule against approving plea deals that contain these waivers. Mandamus-ed!
• To pay for the cost of their incarceration, Minnesota officials deduct up to 50 percent of sexually dangerous civil detainees’ $10/hour wages (for labor including cooking, cleaning, woodworking, and sign manufacturing). A minimum-wage violation? Eighth Circuit: They aren’t employees, so no.
• District court: California prison officials must adopt a statewide policy mandating COVID-19 vaccinations for all staff (with medical and religious exemptions). Ninth Circuit: Vacated. The current policy (in which unvaccinated staff are regularly tested and all prisoners can get vaccinated) may not be the most medically efficacious, but that does not mean it violates the Eighth Amendment.
• Man uses Yahoo and Facebook to organize trips to the Philippines for underage encounters and to receive underage porn. Both services find evidence of this and kind of on their own initiative, but kind of because of federal laws, pass it on to the FBI. Fourth Amendment violation? Ninth Circuit: No state action so it’s fine. Dissent: That’s true for Facebook, but not for Yahoo. Orin Kerr: “Holy crap,” this case just made some crazy-wild law on digital seizures and terms of service without the judges even realizing it.
• Woman purchases home in Los Angeles next-door to a detective and her family—whom she soon discovers to be neighbors from hell. They park on her driveway, hose their dog’s droppings onto her property, and call police on her on multiple occasions. In one incident, they alleged that she tried to run over the detective’s daughter; she’s arrested but later declared factually innocent thanks to a surveillance video. In another, they alleged that she stabbed the detective’s husband. (He was not stabbed.) Did the detective violate the Fourth Amendment by procuring a false arrest? Jury: Sure did, have $3 mil for the trouble. Huzzah! Can she take their home to collect on the judgment? Ninth Circuit: Sure can.
• From 2017 to 2020, Espanola, N.M. officials repeatedly refuse to turn on water unless new homeowners pay off the previous owner’s water bill. And, says the city, that means they can’t sue in 2020 because the statute of limitations started running in 2017. Tenth Circuit: But the “repeated violation” doctrine (which is different, of course, from the “continuing violation” doctrine) salvages at least some of the homeowners’ claims.
• Man charged with particularly heinous crimes is allegedly advised by counsel not to accept plea deals for 15-, 10-, and 8-year sentences because the gov’t doesn’t have the evidence convict. It does, and he gets a 30-year sentence. Tenth Circuit: Could be the man’s Sixth Amendment rights were violated.
• And in en banc news, the Fifth Circuit will not reconsider its ruling that an internet troll cannot sue the HuffPost in Texas for libel (for calling him a Holocaust denier) as HuffPost is based in New York and incorporated in Delaware. Dissental: But it has Texas readership and Texas-specific advertising, and, as a Texas resident, he was largely injured in Texas.
• And in more en banc news, the Sixth Circuit will not reconsider its ruling forgiving the feds’ failure to timely argue that a vehicle passenger lacked Fourth Amendment standing to challenge a search of the car.
• And in amicus appearance news, next week IJ will argue to the Fourth Circuit that the feds can’t forfeit $69k cash because they didn’t prove—or even specify—the crime they believe the property owner committed. (He did drunkenly crash his car into a concrete pillar, but that’s not something that gives rise to a federal forfeiture.) Under the Civil Asset Forfeiture Reform Act of 2000, the burden is on the gov’t to affirmatively prove forfeitability, and the district court erred by instead putting the burden on the owner to defend against the gov’t’s speculation and conjecture.

Victory! In 2015, officials in Zion, Ill., passed an ordinance requiring that renters (of whom the mayor said there were too many) submit to warrantless interior home inspections on pain of $750-per-day fines against their landlords, who could also lose their right to rent the property. (One landlord was fined the astronomical sum of $114k!) But last week—following a federal judge’s refusal to dismiss a challenge to the ordinance last year—the city amended its ordinance. Now inspectors will need either a warrant or consent to enter a home. The suit will proceed, however, on the question of whether IJ’s clients are entitled to declaratory relief and damages for past Fourth Amendment injuries. Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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Getting a handle on America’s massive and growing national debt will only be more difficult if lawmakers keep postponing the effort.

In a report released Thursday, the Congressional Budget Office (CBO) attempted to attach some math to the difficult policy decisions that lie ahead. Regardless of when lawmakers decide to address the $30 trillion national debt, just stabilizing it (that is, implementing policies to stop it from growing relative to the nation’s economy as a whole) will require that “income tax receipts or benefit payments change substantially from their currently projected path.”

In short, taxes will have to go up and government services—including benefits from programs like Social Security and Medicare, the health insurance program for the elderly—will likely have to be reduced.

That’s hardly a new set of prescriptions. Debt-watchers have been warning for years that benefit cuts and tax increases will likely be needed to have any realistic shot at managing America’s long-term debt. (And, remember, we’re talking about what’s needed to merely stabilize the debt, not reduce or eliminate it).

The CBO report charts three prospective courses based on assumptions about when Congress might start implementing necessary changes to face this tsunami of a problem: by 2026, 2031, or 2036.

If policy makers wait until the end of the decade to raise taxes and cut spending, the best-case scenario would leave the debt hovering around 120 percent of GDP over the long term. Waiting longer means higher debt levels forever and more severe consequences.

“As federal borrowing increased, the amount of funds available for private investment would decline (a phenomenon known as crowding out), and interest costs would increase,” the CBO warns. “Perpetually rising debt would also increase the likelihood of a fiscal crisis and pose other risks to the U.S. economy.”

A larger amount of debt translates into reduced economic growth in the long run, as the cost of interest payments on the debt consumes dollars that could otherwise be put to productive use. As the CBO notes, persistently high levels of debt can also put upward pressure on interest rates and make it more difficult to combat inflation.

President Joe Biden has tried to portray his recent budget plan as fiscally responsible because it envisions a trillion-dollar reduction in the federal budget deficit, which the White House touts as the largest ever. But that’s only possible because the government is emerging from two years in which the deficit hit previously unimaginable highs due to the fiscal and monetary policy responses to the COVID-19 pandemic. When you put Biden’s budget plan into a larger context, it’s anything but fiscally sound—even with a planned tax on the wealthiest Americans, it projects a $1 trillion deficit this year and higher deficits in the years to come.

(Remember, the debt is the accumulation of all federal budget deficits. Reducing the deficit from $3 trillion to $1 trillion does not reduce the size of the current national debt—it still adds $1 trillion to it.)

There’s little hope that Republicans will do much to stabilize the debt either. Despite comically promising to pay off the debt in eight years, Former President Donald Trump was a spendthrift who jacked up the debt by more, per year, in his four years in office than President Barack Obama did during his eight. Imagine introducing a bill in Congress today to hike taxes and cut entitlement benefits. Which political party would have a target on your back faster?

But for anyone who cares, the future is spelled out pretty clearly in the CBO’s new report. The waiting, it turns out, might not be the hardest part—but it sure isn’t going to help.

The post Don't Wait! The National Debt Is Only Getting Worse appeared first on Reason.com.

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A statement from FIRE, which I think is generally quite right:

Today, FIRE wrote New York University School of Law urging it to end an investigation into complaints of harassment based on a statement by Law Students for Justice in Palestine criticizing Zionists. Although some were offended by LSJP’s statement — which made several allegations including that the “Zionist grip on media is omnipresent” and that “people living under occupation have a right to resist their violent occupation” — it remains core political expression protected by NYU’s clear commitments to students’ expressive rights.

The statement from NYU’s LSJP chapter came two hours after an April 7 email from NYU’s Law Students for Israel, which stated, in part, “Few countries have faced as much violence, hatred, and delegitimization as the State of Israel.” The statement also said: “The Middle East is big enough for all its indigenous peoples to enjoy self-determination, security, and prosperity. Do not give credence to those, including in our Law School, who say otherwise.”

LSJP’s response said Law Students for Israel “flips the realities of aggressor and victim on its head,” and criticized Israel as an “apartheid regime.”

LSJP went on to say the media “craft a narrative of necessary ‘self defense’ and ‘security'” and Zionists suppress “evidence of their own violence, occupation, and dehumanization.” The statement also said, “Zionists falsely equate Palestinian resistance and Israeli oppression as a ‘conflict’ with two sides.”

The Washington Free Beacon reported that 11 student groups subsequently expressed support for LSJP’s statement. However, in the latest example of students turning to administrators to try to silence differing opinions on the Israeli-Palestinian conflict, some students submitted complaints to NYU administrators alleging that LSJP’s statement and support of it amounted to harassment. The university then said it would investigate, “as required by [its] policies.”

As FIRE has long argued investigations into protected expression chill speech. Although NYU is a private university not bound by the First Amendment, it makes strong promises to students that they enjoy expressive rights. This includes the right to make subjectively offensive statements which do not rise to the level of unprotected harassment. Given that NYU makes these promises, it must not investigate speech that is clearly protected, and it may not punish students for merely exercising their expressive rights — even when doing so causes controversy.

FIRE takes no position on the merits of the Israeli-Palestinian conflict. But it’s clear that none of the dialogue that’s been made public here meets the U.S. Supreme Court standard for what constitutes punishable student-on-student, or peer, harassment. The Supreme Court defined peer harassment in Davis v. Monroe County Board of Education. In order for student conduct — including expression — to constitute discriminatory harassment, it must be: (1) unwelcome; (2) discriminatory on the basis of a protected status; and (3) “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

As we argue in our letter, although some may have considered LSJP’s statement unwelcome and discriminatory based on national origin, there is no credible argument that the statement was so severe and pervasive that it deprived students of educational opportunities. A controversial issue like the Israeli-Palestinian conflict is bound to result in speech on both sides of the divide that causes anger and offense. But as a federal court recently stated in a case involving a professor’s claim of hostile work environment stemming from speech on this topic, if “disagreements on a contentious geopolitical conflict” could in and of themselves form the basis of a harassment or discrimination claim, it would “serve as [a] parking brake on those academic and public debates about those highly contentious topics.”

The Free Beacon argues NYU may be obligated to punish students for signing onto LSJP’s statement based on NYU’s 2020 settlement agreement with the Department of Education’s Office for Civil Rights, which prohibits the university from discriminating based on national origin. Yet, as we explain in today’s letter:

NYU’s settlement agreement with OCR does not—and cannot—require NYU to investigate expression otherwise protected by the First Amendment. While the agreement required, among other things, that NYU amend its policies to prohibit discrimination based on shared ancestry and ethnic characteristics, and that it release a statement from its president that the university “does not tolerate acts of discrimination or harassment,” the agreement does not require NYU to investigate protected expression. OCR, in fact, cannot require NYU to investigate or punish protected expression, as it is itself a governmental body bound by the Constitution.

NYU’s settlement agreement with OCR does not prohibit heated exchanges of political views that fall short of discriminatory harassment as defined in Davis. And, given that LSJP’s statement does not constitute such harassment and is protected by NYU’s promises of free expression, NYU cannot investigate or otherwise punish the speech. Investigations into protected speech cause an impermissible chilling effect on both the students involved and on other NYU students and faculty, as they may self-censor for fear of facing investigation or punishment for expressing controversial opinions.

NYU could have fulfilled its obligations to evaluate complaints had it conducted a cursory review of the allegations against LSJP and quickly determined the email alone could not constitute unprotected hostile environment harassment.

Criticism of LSJP’s speech is, of course, also protected expression. That is the marketplace of ideas in action. For example, as George Mason University law professor David Bernstein observed on the Volokh Conspiracy blog:

For what it’s worth, I think it’s a mistake to make the controversy a matter of discrimination or harassment policy. Rather, the essence of the problem is that some NYU law students (1) dehumanize Israelis to the point where they think murdering them for no reason other than that they exist is ok; and (2) either don’t understand why stating that “Zionists” control the media is antisemitic, or do understand and think that spreading racism is okay so long as it’s for the greater good of Palestinian nationalism. This is a problem regardless of whether the students in question violated NYU policy, and it may also be a problem to find that political opinion, no matter how noxious, violates NYU policy.

NYU has many options available to it to combat anti-Semitism that do not involve censorship. One permissible option would be educating its student body about the issue, so long as that education doesn’t target specific students for education or compel speech by requiring affirmative agreement with a specific viewpoint.

FIRE has seen those on both sides of the Israeli-Palestinian conflict turn to university administrators to silence protected speech of those with whom they disagree. This is destructive for everyone. That’s why it’s important to point out that NYU must not seek to address the issue by conducting chilling investigations into those on the other side of the issue who might engage in controversial speech that might be deemed anti-Arab or anti-Muslim. Students must have the right to express opinions on all sides of controversial issues, within the bounds of the law, regardless of whether those opinions are widely considered offensive or even repugnant.

FIRE defends not only the rights of LSJP and their supporters, but would also defend the expressive rights of NYU’s Law Students for Israel — and anyone whose protected expression is threatened on campus. If students or faculty are being investigated or punished for speech supportive or critical of pro-Palestinian or pro-Israel groups, FIRE is here to help.

The post "FIRE to NYU: Uphold Your Free Speech Promises and Stop Investigating Anti-Zionist Statement" appeared first on Reason.com.

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Shining Girls. Available now on Apple TV.

As a critic, I get paid to watch TV shows, which is a lucky thing for Apple TV’s new series Shining Girls, because for its first two and a half hours, it’s nearly unwatchable, even though it starts with a reasonably enticing premise: a couple of reporters trying to track down a serial killer. Slooooow, confusing and riddled with what-the-hell moments, it moves at the pace of a snail on Quaaludes. And then, the snail gets a shot of crystal meth. Shining Girls is an immensely entertaining show, if you have the time and patience to wait it out.

Based on a book by South African novelist Lauren Beukes (which I haven’t read, but friends tell me has been altered considerably in the adaptation), Shining Girls stars Elisabeth Moss (Mad Men, The Handmaid’s Tale) as Kirby Mazrachi, an editorial assistant at the Chicago Sun-Times. Her career was mostly sidelined six years earlier when she nearly died after an unseen nighttime assailant carved a cross deep into her abdomen.

Once a promising candidate for a reporting job, Mazrachi now is just a melancholy and slightly glorified clerk, wandering the newsroom to deliver clippings and photos from the newspaper’s library to reporters and editors who’ve asked for them. (Yes, kids, there was a time—and Shining Girls is set in it—when everything in the world wasn’t available at a click or two on a computer keyboard.)

But as she eyes stories written by just-short-of-washed-up crime reporter Dan Velazquez (Wagner Moura, Narcos) about the recent murder of a social worker, Mazrachi notices some similarities with her own assault. As the two team up, they uncover a string of grisly coincidences in killings stretching back years, including the killer’s penchant for leaving tokens—matchbooks, key rings and the like—inside the slaughtered bodies of his victims.

What keeps this story from developing for a long time is that Mazrachi is a wildly unreliable narrator. She forgets everything from the location of her newsroom desk to which floor of the building her apartment is on. She even comes home one night to discover that a friend at work is actually her husband. Her declaration that “being married to you just doesn’t seem real” is anything but metaphoric. Mazrachi is so unstuck from reality that she’s furtively keeping a notebook of reminders about things as mundane as the name of her dog (or is it a cat?).

Is this a belated onset of PTSD, or just plain madness? Whatever the answer, Mazrachi’s chaotic sense of her own existence—and a lesser but still troubling difficulty in communicating by her reporting partner, Velazquez, a not-necessarily-recovering alcoholic—can make it extremely difficult to follow what’s going on during the early hours of Shining Girls.

The process of explication isn’t helped by the determined drabness of cinematographer Robert McLachlan’s look for the show, including a preoccupation with noir that’s absurd even by the current nutty standards of Hollywood. The newsroom where Mazrachi and Valazquez work looks like a Boy Scout campground, with desk lamps providing tiny oases of firelight in an overwhelming gloom.

So, it isn’t until midway through the third episode that Shining Girls that anything coherent can be detected as the disparate and possibly imaginary elements of the plot start assembling themselves into a whole. And only in the fourth hour do they really start to sing. But when they do, what emerges is an aria of fear that goes well beyond Shining Girls’ crime-procedural surface. Evil, betrayal, and fragmentation of reality stretch in every direction. As much as I hated the first couple of hours of the show, I loved—in a creeped-out way—the rest.

Moss, who’s made an entire career out of playing melancholy, emotionally shattered women, does so again in impressive fashion. But she may be outdone by Moura as her bemused colleague. He not only has his own demons but must also contend with a partner with whom he greatly empathizes but also suspects may be as nutty as a five-pound fruitcake.

And then there’s Jamie Bell (Washington’s Spies), who plays Harper, the spectrally talented bad guy. That’s not a spoiler; he projects an air of malevolence so profound that you know he’s damnably evil the first time he walks into the frame. Shining Girls is full of surprises, but when Bell is on screen, you’re going to get exactly what you see, in spades.

The post Serial Killer Thriller <em>Shining Girls</em> Lulls You to Sleep Before Blowing Your Mind appeared first on Reason.com.

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