Sen. Lindsey Graham (R-S.C.) made the remarks when he was asked on Fox Business’s “Wall Street with Maria Bartiromo” to respond to Biden’s recent comments where he said raising gas prices is part of “an incredible transition.”
“I think that’s the main takeaway from his statement, that he is telling the American people they’re doing this to you on purpose, that the transition period is being imposed by policies coming from the Biden administration,” he said.
“This is a conscious effort by the Biden administration to destroy fossil fuel production in the United States, to get away from fossil fuels, and you’re living this experience. This is an irresponsible shutting down of oil and gas production in America, making us more dependent on oil and gas from bad actors, and it’s destroying the American economy,” he continued.
Biden characterized the soaring cost of gasoline in the United States as an “incredible transition” on Monday while taking questions from reporters during his trip to Japan.
“When it comes to the gas prices, we’re going through an incredible transition that is taking place that, God willing, when it’s over, we’ll be stronger and the world will be stronger and less reliant on fossil fuels when this is over,” he said alongside Japanese Prime Minister Fumio Kishida.
The comment came as the national average cost of a gallon of gas sat at a record-high $4.596, with several states paying more than $6.00.
Biden went on to take credit for gas prices not being “even worse.”
“What I’ve been able to do to keep it from getting even worse—and it’s bad,” he said.
His comments were widely denounced by Republicans.
Rep. Andy Biggs (R-Ariz.) criticized Biden for being “completely out of touch with everyday Americans.”
Republican National Committee Chair Ronna McDaniel released a statement the following day blaming the Biden administration for the continually elevated cost of gas.
“Another day, another new record high gas price in Biden’s America,” the statement reads. “Joe Biden doesn’t care about the historic inflation and skyrocketing gas prices families are facing every day as a result of his failed agenda. The pain is the point for Biden and Democrats, and Americans will continue to suffer as long as Biden is in charge.”
Biden and other senior administration officials have continually blamed Russia’s invasion of Ukraine for the inflated gas prices. In response to the invasion on Feb. 24, the United States and many of its Western allies put a halt to all imports of Russian oil and gas.
While the cost of gas did spike dramatically after Russia invaded Ukraine in February, it had already been rising steadily throughout Biden’s first year in office. After the sanctions, the price leveled off before increasing to new record highs in recent weeks.
I’m on the run and can’t discuss this in detail, but I thought that I’d link to it (Palin v. N.Y. Times Co.) and excerpt the opening:
Now before the Court is plaintiff Sarah Palin’s post-trial motion. She first seeks the Court’s retroactive disqualification, arguing that various aspects of the Court’s management of her libel trial suggest bias against her. In the alternative, she seeks either a new trial or reconsideration of the Court’s prior ruling that entered final judgment in favor of defendants The New York Times Company and James Bennet based on their motion under Fed. R. Civ. P. 50 for judgment as a matter of law. Because Palin’s instant motion is wholly lacking in merit, the Court denies it in full.
Whatever she may have claimed in her complaint and pre-trial submissions, Palin was unable to deliver at trial admissible evidence that remotely supported her claim that she was intentionally or recklessly defamed by the defendants. As the Court clearly explained at some length in its Rule 50 Opinion dated March 1, 2022, which is re-adopted here by reference, Palin wholly failed to establish several essential elements of her claim.
Among other things, in the end she offered no affirmative evidence that Bennet or others who worked on the Editorial that is the subject of her claim knew or suspected before publication that the Challenged Statements, which linked Palin’s Crosshairs Map to the Arizona shootings of Representative Gabby Giffords and others, were false. Indeed, none of the sources or research upon which the Editorial Board relied to draft, revise, and publish the July 14, 2017 Editorial expressly denied Bennet’s inference that Palin’s Crosshairs Map had played a causal role in the Arizona shooting. And when cautionary information was brought to defendants’ attention, the Times promptly retracted the Challenged Statements. No reasonable juror could therefore have found by clear and convincing evidence that Bennet and the Times published the Challenged Statements with actual malice.
Former Pacific Hurricane Could Become First Atlantic System With Florida In Crosshairs
On the eve of the official June 1 start date of the 2022 Atlantic hurricane season, probabilities are increasing that the first organized tropical system could form later this week.
Remnants of Hurricane Agatha in southern Mexico will play a crucial role in forming the tropical depression that could develop in the southeastern Gulf of Mexico or the northwestern Caribbean Sea on Thursday or Friday.
“A highly likely solution is for moisture and residual energy from Agatha to give birth to a new storm system on the Atlantic side,” AccuWeather Senior Meteorologist Courtney Travis said.
The National Hurricane Center (NHC) places formation chances at 30% over the next 48 hours and 70% odds over the next five days.
2 PM EDT Tuesday May 31: A low pressure area is forecast to form near the Yucatan Peninsula in a couple of days. There is a high chance of this system becoming a tropical depression as it moves northeastward over the northwestern Caribbean Sea and southeastern Gulf of Mexico. pic.twitter.com/hCjC8gEn97
— National Hurricane Center (@NHC_Atlantic) May 31, 2022
The first name storm of the season would be called “Alex.”
The European weather model points to circulation late Thursday or Friday and could become an organized storm near Florida by the weekend. If the model is correct, South Florida could be hit with heavy rains, high winds, and coastal flooding.
“Regardless of development, locally heavy rainfall is likely across portions of southeastern Mexico, the Yucatán Peninsula, Guatemala, and Belize during the next few days, spreading across western Cuba, southern Florida, and the Florida Keys by the end of the week,” NHC said.
… And just what the US Gulf Coast needs: A tropical system, as this year’s hurricane season could be active and jeopardize offshore drilling and inland refinery operations, comes when the Biden administration struggles to stomp out high pump prices. It only takes one perfect storm to paralyze the Gulf Coast energy complex.
I’m on the run and can’t discuss this in detail, but I thought that I’d link to it (Palin v. N.Y. Times Co.) and excerpt the opening:
Now before the Court is plaintiff Sarah Palin’s post-trial motion. She first seeks the Court’s retroactive disqualification, arguing that various aspects of the Court’s management of her libel trial suggest bias against her. In the alternative, she seeks either a new trial or reconsideration of the Court’s prior ruling that entered final judgment in favor of defendants The New York Times Company and James Bennet based on their motion under Fed. R. Civ. P. 50 for judgment as a matter of law. Because Palin’s instant motion is wholly lacking in merit, the Court denies it in full.
Whatever she may have claimed in her complaint and pre-trial submissions, Palin was unable to deliver at trial admissible evidence that remotely supported her claim that she was intentionally or recklessly defamed by the defendants. As the Court clearly explained at some length in its Rule 50 Opinion dated March 1, 2022, which is re-adopted here by reference, Palin wholly failed to establish several essential elements of her claim.
Among other things, in the end she offered no affirmative evidence that Bennet or others who worked on the Editorial that is the subject of her claim knew or suspected before publication that the Challenged Statements, which linked Palin’s Crosshairs Map to the Arizona shootings of Representative Gabby Giffords and others, were false. Indeed, none of the sources or research upon which the Editorial Board relied to draft, revise, and publish the July 14, 2017 Editorial expressly denied Bennet’s inference that Palin’s Crosshairs Map had played a causal role in the Arizona shooting. And when cautionary information was brought to defendants’ attention, the Times promptly retracted the Challenged Statements. No reasonable juror could therefore have found by clear and convincing evidence that Bennet and the Times published the Challenged Statements with actual malice.
With the outbreak of monkeypox, Chinese state media and social media influencers in China have claimed that the monkeypox virus originated in a U.S. laboratory. They have also made claims that monkeypox will cause the next pandemic, despite European and American scientists pointing out that the possibility of a pandemic is extremely small due to the close contact needed to transmit the virus.
They have also said that, at present, patients are infected with a natural monkeypox virus with no links to a laboratory.
“Jimu News,” a subsidiary of state-run Hubei Daily Group, published an article on May 23 implying that escaped monkeys from a truck involved in a traffic accident on Jan. 21 in Pennsylvania have something to do with the recent monkeypox outbreak in the United States and Europe.
The four monkeys that escaped, among the 100 being transported by the truck, were recaptured next day.
The first confirmed case of monkeypox in the United States appeared in Massachusetts on May 18. The patient was diagnosed after returning to the United States from Canada. Cases have since appeared in New York City, Florida, and Utah.
Meanwhile, Chinese social media influencers who are supportive of China’s ruling communist regime have echoed claims similar to those made by official state media outlets.
On May 20, a blogger named “Guyan Muchan” posted a few screenshots on Chinese social media Weibo of a document claiming that to be a “monkeypox biochemical pandemic plan leaked by the United States,” implying that the U.S. government was aware of the outbreak in advance.
“Guyan Muchan” has 6.41 million followers on Weibo, and the post has been liked by more than 7,500 users and received more than 660 comments. Influenced by this post, someone even commented that the United States is “evil beyond human imagination.”
The document was actually from a hypothetical biohazard scenario published in a research report by the U.S. think tank Nuclear Threat Initiative in 2021. The document is available for viewing on its website.
Major international media, such as Reuters and Bloomberg, further pointed out that: “Pandemic preparedness scenarios and symposiums are not proof that pandemics are planned, nor are these scenarios a new occurrence.”
After the false claim is debunked, “Guyan Muchan” has continued to spread similar claims blaming the U.S. for the spread of the monkeypox.
A self-proclaimed “patriotic” cartoonist “Sweet Potato Bear Lao Liu” also posted claims that the spread of the monkeypox virus was related to a U.S. laboratory. On May 21, he posted on his Weibo account that the United States may have modified and upgraded the monkeypox virus to develop a more virulent and transmissible variant, to lead to the next pandemic.
Zhao Shengye, an internet technology blogger, further claimed on his Weibo account that, after researching the monkeypox virus that appeared in Europe and the United States, he believes the probability of the monkeypox being produced in a laboratory through virus gain-of-function research was greater than 99.9 percent. Zhao has 4 million Weibo followers.
A major mainland Chinese news portal NetEase News published an article on May 23, titled “Is the Monkeypox Virus Man-made? The United States wrote the data on the outbreak of monkeypox last year, which is terrible.” The article claims that monkeypox has more than 50 mutations, which exceeds the mutation rate of the Chinese Communist Party (CCP) virus that caused COVID-19. It added that no viral evolution in nature would have such a fast mutation rate.
Such claims have been refuted by international scientists.
David Robertson, head of viral genomics and bioinformatics at the University of Glasgow, told the Newsweek that the claims are baseless as “there’s no evidence for monkeypox being generated in a lab.”
Richard Ebright, professor of chemistry and chemical biology at Rutgers University in New Jersey, echoed the point, “All indications are that the monkeypox outbreak involves a natural monkeypox virus.”
Daniel Bausch, an infectious disease expert and president of the American Society of Tropical Medicine & Hygiene, told Axios that the risk of a monkeypox pandemic is extremely low.
“I don’t think there’s a reason for panic, I don’t think we’re going to have tens of thousands of cases,” he said of the virus.
According to the Massachusetts Department of Public Health, monkeypox is not known to spread easily between people, requiring direct contact with bodily fluids, lesion fluids, or prolonged face-to-face contact.
Ukraine Fires Own Human Rights Chief For Perpetuating Russian Troop ‘Systematic Rape’ Stories
For over the past two months, an avalanche of stories have hit Western mainstream press which purported to document instances of mass rape carried out by Russian troops against Ukrainian civilians. One particular story in Timetook off, driving outrage and condemnation by Western officials and receiving repeat coverage on CNN and other major US networks.
It alleged “a systemic, coordinated campaign of sexual violence” – relying chiefly on testimony gathered by Ukraine’s appointed top human rights representative. It included a particularly shocking story of 25 teenage girls being gang-raped by Russian troops – nine of which became pregnant. According to the report:
Ukraine’s human rights ombudsman, Lyudmyla Denisova said that 25 teenage girls were kept in a basement in Bucha and gang-raped; nine of them are now pregnant. Elderly women spoke on camera about being raped by Russian soldiers. The bodies of children were found naked with their hands tied behind their backs, their genitals mutilated. Those victims included both girls and boys…
Ukrainians are speaking up about rape as a war crime to ensure the world holds Russia accountablehttps://t.co/tEilTSgmbS
Like has been the pattern in prior wars, whether in Syria or Libya, the media claims got more and more sensational and over-the-top as the conflict intensified, and as Western powers became more deeply involved, yet with no concrete or definitive proof.
But one consistent detail in the majority of the stories is that the aforementioned Ukraine human rights ombudsman, Lyudmyla Denisova, is often the central figure feeding Western correspondents the shocking rape stories.
For example, she’s featured in this April Newsweek piece:
Lyudmila Denisova, the Ukrainian Parliament’s Commissioner for Human Rights, alleged on Friday that Russian soldiers have raped children during the ongoing invasion of Ukraine.
In a Facebook post, Denisova alleged that an 11-year-old boy was raped by Russians in front of his mother who was tied to a chair and forced to watch as it happened in the Ukrainian city of Bucha.
Many such stories which presented ever-more horrifying details as the war progressed quickly went viral, particularly among pro-Ukraine activists on Twitter and other social media, to the point where prominent pundits would begin casually agreeing amongst themself that Russians simply are “animals”.
And below is another example among many, which tended to be based on “reports say” for many of the most central, damning claims…
But recently, within the last couple of weeks, as investigators began to dig deeper into the allegations, it seems the media stories started to dry up. The geopolitical analysis blog Moon of Alabama details what happened in the following:
However, a bunch of eager NGOs in Ukraine, hoping for fresh ‘western’ money for new ‘rape consultation and recovery’ projects, tried to find real rape cases. They were disappointed when they found that there was no evidence that any rape had taken place
(machine translation):
On May 25, a number of media outlets and NGOs published an open appeal to Lyudmila Denisova calling for improved communication on sexual crimes during the war.
The signatories insist that Denisova should disclose only information about which there is sufficient evidence, avoid sensationalism and excessive detail in their reports, use correct terminology and take care of the confidentiality and safety of victims.
“Sexual crimes during the war are family tragedies, a difficult traumatic topic, not a topic for publications in the spirit of the ‘scandalous chronicle.’ We need to keep in mind the goal: to draw attention to the facts of crimes,” the appeal reads.
An entire global activist movement even sprang up which focused on highlighting Russian sexual crimes in Ukraine, based on the premise that Russia’s military is using “rape as a tool” as part of its arsenal to spread a campaign of terror…
Th woman also shouted ‘Don’t rape us!’ as the security encircled her quickly to take her off the red carpet. The incident again brought to light the Ukraine crisis at #Cannes.https://t.co/Ghs9UCKC7q
And now on Tuesday, Interfax, Politico, The Wall Street Journal, and others are reporting that Lyudmyla Denisova has been fired – precisely forfloating and perpetuating fantastical claims of mass rape but without providing evidence…
Ukraine’s parliament just fired human rights ombudsman Lyudmila Denisova. MPs claimed her work focusing on the rape of Ukrainians by Russian troops which “couldn’t be confirmed with evidence […] only harmed Ukraine and distracted the global media from Ukraine’s real needs.”
— Christopher Miller (@ChristopherJM) May 31, 2022
“Ukrainian lawmakers dismissed the country’s ombudsman for human rights, Lyudmyla Denisova, in a no-confidence vote on Tuesday, concluding that she had failed to fulfill obligations including the facilitation of humanitarian corridors and countering the deportation of Ukrainians from occupied territory,” The Wall Street Journal reported late in the day.
“Lawmaker Pavlo Frolov said Ms. Denisova was also accused of making insensitive and unverifiable statements about alleged Russian sex crimes and spending too much time in Western Europe during the invasion,” the report added.
“The unclear focus of the Ombudsman’s media work on the numerous details of ‘sexual crimes committed in an unnatural way’ and ‘rape of children’ in the occupied territories that could not be confirmed by evidence, only harmed Ukraine.”
Needless to say this is an absolutely devastating blow to Ukraine’s ‘information war’ which has been in full force since the Russian invasion (as naturally in war each side will enter into propaganda campaigns against the other simultaneous to the actual ground war, and while seeking to sway world opinion).
Angry pushback has started already within hours after the news of Denisova’s removal was confirmed, including from UN accounts and US media pundits…
Dismissal of Ombudsperson Denisova is contrary to int standards, undermines independence of important human rights institution in #Ukraine. We call on authorities to take steps to ensure independence of Ombudsperson & abide by int standards in law&practice https://t.co/C3689VYRih
— UNHumanRightsUkraine (@UNHumanRightsUA) May 31, 2022
That Ukraine’s parliament took the drastic step of dismissing her in such a public manner also speaks volumes – strongly suggesting that Ukrainian officials themselves don’t believe the bulk of the ‘systematic rape’ claims.
Today Eugene and I filed an amicus brief in the Supreme Court in support of the petitioners in 303 Creative LLC v. Elenis, arguing that wedding-website designers cannot be required by a state public accommodations law to create website designs for same-sex couples. The Tenth Circuit erred in concluding otherwise, undermining a freedom critical to the LGBT-rights movement itself.
Here is the Summary of Argument:
This case is about protecting the constitutional right to free expression while allowing government to generally ensure equal access to commercial goods and services.
“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” this Court wrote in Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1727 (2018), another case involving Colorado’s ongoing efforts to eliminate the discrimination it once fostered (see Romer v. Evans, 517 U.S. 620 (1996) (invalidating state constitutional amendment denying civil rights protections to homosexuals)). “For that reason,” this Court continued, “the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” Masterpiece Cakeshop, 138 S. Ct. at 1727.
At the same time, the First Amendment freedom not to speak must include the freedom not to create speech, and the freedom to choose which speech to engage in or create based on the religious, political, or sexual-orientation-related content of the speech. A freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican-themed events, even if he will play at other political events, and even if the jurisdiction bans discrimination based on political affiliation in public accommodations. See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation and Housing, 15 NYU J. L. & Liberty 490 (2021). Likewise, a photographer or a wedding singer should not be punished for refusing to take photographs celebrating a same-sex wedding, or for refusing to sing at such a wedding.
Indeed, this Court has generally recognized that the First Amendment protects the right of individuals to speak, or to refrain from speaking, even when the government cites a compelling interest in forbidding discrimination. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, this Court held that a state public accommodations law could not constitutionally require that organizers of a St. Patrick’s Day Parade let an Irish gay, lesbian, and bisexual contingent march behind a banner merely proclaiming their presence.
Of course, the First Amendment shields refusals to speak, but does not extend to refusals to do things that are not a form of speech. Limousine drivers, hotel operators, and caterers should not have a Free Speech Clause right to exempt themselves from antidiscrimination law in their professional activities, because in those cases the law is not compelling them to speak or to create First Amendment-protected expression. Likewise, though the First Amendment shields refusals to participate as a co-creator in others’ speech— say, as an actor or a musical accompanist or a singer— again the limousine driver, hotel operator, or caterer would not qualify as co-creators of the speech involved in the wedding. This Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968). There must also be limits set on the variety of conduct compulsions that can be labeled “speech compulsions,” and on the degree and quality of involvement that can be labeled compelled “participation” in a ceremony.
Fortunately, this case does not call on this Court to define such limits with precision, because there is no serious question that it involves compelled speech. The Tenth Circuit recognized that Smith’s “creation of wedding websites”—through her sole proprietorship, 303 Creative—”is pure speech.” Pet. 20a. It acknowledged specifically that the Accommodations Clause of the Colorado Anti-Discrimination Act (“CADA”) “compels [Smith] to create speech” celebrating marriages that her conscience tells her she cannot celebrate and understood that such compulsion necessarily “works as a content-based restriction.” Pet. 22a–23a. The lower court even recognized that Smith is willing to work with, and design websites for, LGBT customers in nearly all other circumstances. Pet. 6a.
Yet the Tenth Circuit failed to follow this Court’s speech-protective lead in Hurley and other decisions. Pet. 19a–34a. If Smith sells graphic designs celebrating the marriages of some couples, according to the Tenth Circuit, Colorado can demand that she create and sell similar graphic designs to celebrate the marriages of all couples. Pet. 27a–28a. In essence, even though comparable website-design services are widely available, the lower court believed that the harm of being denied access to a single person’s creative designs is sufficient to let the government compel that person to speak in ways that violate her conscience. See Pet. 26a–32a. That cannot be correct.
Because it is easy to appreciate how this case implicates speech rights—as even the Tenth Circuit did—it affords this Court a prime opportunity to affirm the basic holding of Hurley, Wooley v. Maynard, 430 U.S. 705 (1977), and Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974): the First Amendment’s protections for the “individual freedom of mind” mean that the government may not require people to create and distribute speech with which they disagree and cannot force them to change their message because they have decided to speak. Wooley, 430 U.S. at 714.
In Masterpiece Cakeshop, this Court expressly recognized the “authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services.” 138 S. Ct. at 1723. This case allows this Court to add that, despite their importance, state laws prohibiting discrimination in such public accommodations are subject to the First Amendment’s limits on governmental power. And it provides this Court the opportunity to reject the corrosive version of strict scrutiny applied by the Tenth Circuit, which defers to the state’s choice of means in any case involving custom expressive products in the commercial marketplace
And we offer this thought from the Conclusion:
The First Amendment has historically protected the rights of Americans to organize politically and to advocate unpopular causes. This protection has been especially critical for the LGBT-rights movement. See Dale Carpenter, Born in Dissent: Free Speech and Gay Rights, 72 SMU L. Rev. 375 (2019); Carpenter, Expressive Association, 85 Minn. L. Rev. at 1525-33. With such expressive freedom secure, “[m]illions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives.” Bostock v. Clayton Cty., 140 S. Ct. 1731, 1837 (2020) (Kavanaugh, J., dissenting).
Joining us as amici were Ilya Shapiro (formerly with the Cato Institute), the American Unity Fund (AUF), and the Hamilton Lincoln Law Institute (HLLI). Contributing as counsel were Devan Patel of AUF, and Theodore Frank, Anna St. John, and Adam Schulman of HLLI. I want to thank my research assistant Joshua Diaz (SMU Law ’23) for his invaluable assistance on the brief.
Today Eugene and I filed an amicus brief in the Supreme Court in support of the petitioners in 303 Creative LLC v. Elenis, arguing that wedding-website designers cannot be required by a state public accommodations law to create website designs for same-sex couples. The Tenth Circuit erred in concluding otherwise, undermining a freedom critical to the LGBT-rights movement itself.
Here is the Summary of Argument:
This case is about protecting the constitutional right to free expression while allowing government to generally ensure equal access to commercial goods and services.
“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” this Court wrote in Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1727 (2018), another case involving Colorado’s ongoing efforts to eliminate the discrimination it once fostered (see Romer v. Evans, 517 U.S. 620 (1996) (invalidating state constitutional amendment denying civil rights protections to homosexuals)). “For that reason,” this Court continued, “the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” Masterpiece Cakeshop, 138 S. Ct. at 1727.
At the same time, the First Amendment freedom not to speak must include the freedom not to create speech, and the freedom to choose which speech to engage in or create based on the religious, political, or sexual-orientation-related content of the speech. A freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican-themed events, even if he will play at other political events, and even if the jurisdiction bans discrimination based on political affiliation in public accommodations. See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation and Housing, 15 NYU J. L. & Liberty 490 (2021). Likewise, a photographer or a wedding singer should not be punished for refusing to take photographs celebrating a same-sex wedding, or for refusing to sing at such a wedding.
Indeed, this Court has generally recognized that the First Amendment protects the right of individuals to speak, or to refrain from speaking, even when the government cites a compelling interest in forbidding discrimination. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, this Court held that a state public accommodations law could not constitutionally require that organizers of a St. Patrick’s Day Parade let an Irish gay, lesbian, and bisexual contingent march behind a banner merely proclaiming their presence.
Of course, the First Amendment shields refusals to speak, but does not extend to refusals to do things that are not a form of speech. Limousine drivers, hotel operators, and caterers should not have a Free Speech Clause right to exempt themselves from antidiscrimination law in their professional activities, because in those cases the law is not compelling them to speak or to create First Amendment-protected expression. Likewise, though the First Amendment shields refusals to participate as a co-creator in others’ speech— say, as an actor or a musical accompanist or a singer— again the limousine driver, hotel operator, or caterer would not qualify as co-creators of the speech involved in the wedding. This Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968). There must also be limits set on the variety of conduct compulsions that can be labeled “speech compulsions,” and on the degree and quality of involvement that can be labeled compelled “participation” in a ceremony.
Fortunately, this case does not call on this Court to define such limits with precision, because there is no serious question that it involves compelled speech. The Tenth Circuit recognized that Smith’s “creation of wedding websites”—through her sole proprietorship, 303 Creative—”is pure speech.” Pet. 20a. It acknowledged specifically that the Accommodations Clause of the Colorado Anti-Discrimination Act (“CADA”) “compels [Smith] to create speech” celebrating marriages that her conscience tells her she cannot celebrate and understood that such compulsion necessarily “works as a content-based restriction.” Pet. 22a–23a. The lower court even recognized that Smith is willing to work with, and design websites for, LGBT customers in nearly all other circumstances. Pet. 6a.
Yet the Tenth Circuit failed to follow this Court’s speech-protective lead in Hurley and other decisions. Pet. 19a–34a. If Smith sells graphic designs celebrating the marriages of some couples, according to the Tenth Circuit, Colorado can demand that she create and sell similar graphic designs to celebrate the marriages of all couples. Pet. 27a–28a. In essence, even though comparable website-design services are widely available, the lower court believed that the harm of being denied access to a single person’s creative designs is sufficient to let the government compel that person to speak in ways that violate her conscience. See Pet. 26a–32a. That cannot be correct.
Because it is easy to appreciate how this case implicates speech rights—as even the Tenth Circuit did—it affords this Court a prime opportunity to affirm the basic holding of Hurley, Wooley v. Maynard, 430 U.S. 705 (1977), and Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974): the First Amendment’s protections for the “individual freedom of mind” mean that the government may not require people to create and distribute speech with which they disagree and cannot force them to change their message because they have decided to speak. Wooley, 430 U.S. at 714.
In Masterpiece Cakeshop, this Court expressly recognized the “authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services.” 138 S. Ct. at 1723. This case allows this Court to add that, despite their importance, state laws prohibiting discrimination in such public accommodations are subject to the First Amendment’s limits on governmental power. And it provides this Court the opportunity to reject the corrosive version of strict scrutiny applied by the Tenth Circuit, which defers to the state’s choice of means in any case involving custom expressive products in the commercial marketplace
And we offer this thought from the Conclusion:
The First Amendment has historically protected the rights of Americans to organize politically and to advocate unpopular causes. This protection has been especially critical for the LGBT-rights movement. See Dale Carpenter, Born in Dissent: Free Speech and Gay Rights, 72 SMU L. Rev. 375 (2019); Carpenter, Expressive Association, 85 Minn. L. Rev. at 1525-33. With such expressive freedom secure, “[m]illions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives.” Bostock v. Clayton Cty., 140 S. Ct. 1731, 1837 (2020) (Kavanaugh, J., dissenting).
Joining us as amici were Ilya Shapiro (formerly with the Cato Institute), the American Unity Fund (AUF), and the Hamilton Lincoln Law Institute (HLLI). Contributing as counsel were Devan Patel of AUF, and Theodore Frank, Anna St. John, and Adam Schulman of HLLI. I want to thank my research assistant Joshua Diaz (SMU Law ’23) for his invaluable assistance on the brief.
The trial of Clinton campaign lawyer Michael Sussmann is coming to an end [ZH: has now ended with Sussman’s acquittal] but rather than provide definitive answers to the origins of the Russiagate hoax, the trial has thrown up many new mysteries and unanswered questions.
Durham’s overarching trial narrative was that the FBI was duped by Sussmann when he presented them with data purportedly tying Trump to the Kremlin via the Russian Alfa Bank. It may have been Durham’s only viable strategy given the fact he was facing a jury of twelve Washington D.C. residents, a city where Democrats outnumber Republicans 20 to 1.
This strategy did give Sussmann’s team the opportunity to highlight serious misconduct by the FBI, with a flurry of new information about FBI malfeasance and abuses coming to light.
What does this all mean for Durham? Can he now do a U-turn and go after the FBI that he spent the past two weeks calling a victim? Can he go after Sussmann’s associates like tech executive Rodney Joffe? And what about Hillary Clinton, who we learned greenlighted the plan to vilify Trump?
The Danchenko Case
Durham’s most immediate concern will be his second big case—that being against Christopher Steele’s primary sub-source, Igor Danchenko.
Danchenko was indicted in November 2021 for lying to the FBI, the same type of charge that Sussmann faced. Specifically, Danchenko is alleged to have lied about his own sources, making up a conversation with Sergei Millian, a man he never met, and concealing from the FBI his conversations with Clinton operative Charles Dolan.
There are a number of crucial differences between Sussmann’s and Danchenko’s situations. Perhaps most importantly, Danchenko was charged in Virginia, not in Washington D.C. That means the jury pool will be more favorable to Durham.
Like Sussmann, Danchenko talked to the FBI in Washington but, unlike Sussmann, he later repeated his lies at his home in Virginia when the FBI came for follow-up interviews. That Durham chose to charge Danchenko in Virginia where the lies were repeated instead of in Washington where they were first told, gives us an insight into how Durham views the Washington jury pool.
The second big difference is that Danchenko is charged with five lies, not just one. In fact, an analysis of the only publicly available Danchenko interview transcript appears to show other lies. However, Durham charged just five, perhaps because he has audio recordings of those lies, which would be another difference between the Sussmann and Danchenko cases.
Lastly, Danchenko does not enjoy Democratic Party privilege. Sussmann is a high-powered, well-connected Democratic Party lawyer who represented Clinton and who himself is represented by a high-powered team of top lawyers.
Whether by design or coincidence, most decisions from Obama-appointed Judge Christopher Cooper went Sussmann’s way. Such is the way of Washington that Cooper is married to Amy Jeffress, a former senior official with the Department of Justice (DOJ) and lawyer for Lisa Page. Page was front and center of the FBI’s Trump-Russia investigation. Cooper’s marriage was officiated by Obama’s Attorney General Merrick Garland, the man who overlooks Durham.
Danchenko’s situation is very different. He’s a Russian national with few connections. There will be no special privileges and he will likely be convicted.
Danchenko’s trial will be held in October and Durham is facing a number of discovery obligations this coming month. But once he has those matters under control, he will probably move on to bigger fish.
Will Durham Pursue Private Operatives?
The looming question is whether those bigger fish will involve anyone bigger than Sussmann, who was, after all, a leading campaign lawyer for Clinton. There are two broad categories of people who may be in Durham’s sights.
First, there are private actors—people from outside the government who pushed the Clinton campaign’s smears against Trump. A number of Clinton operatives were implicated as part of the case against Sussmann, including Joffe, Clinton lead campaign lawyer Marc Elias, and Fusion GPS co-founders Peter Fritsch and Glenn Simpson. Fusion GPS is the political consulting firm that coordinated with Sussmann to push false stories about Trump into the media.
We also heard testimony that Clinton herself greenlighted the scheme to use the press to vilify Trump with false accusations of Russia collusion. But will any of these people face consequences?
The person most likely in Durham’s crosshairs is Joffe, who was remarkably offered a top government job in the case of a Clinton election victory, which may have been what motivated him to get involved in the scheme. Joffe was also the person who brought the false Alfa Bank data to his attorney, Sussmann, who later brought it to the FBI.
During the past two weeks we learned that after setting things in motion with Sussmann, Joffe took things into his own hands by taking the same fake Alfa data that Sussmann brought to FBI general counsel Baker to FBI agent Tom Grasso. Joffe told Grasso that he got the info from a reporter and that Grasso should keep Joffe’s name secret.
In essence, with Sussmann’s help, Joffe was creating the appearance of two separate information streams into the FBI when in fact all the fake data was coming from Joffe himself. The scheme was simple, effective, and devious. First, Sussmann would get the FBI to investigate Trump, and then Joffe would come in “independently” to back Sussmann’s fake story.
During Grasso’s testimony it was also revealed that Joffe was a confidential human source for the FBI and that he worked on “Russian-related cyber matters.” There was at least a suggestion that Joffe might have had a role in analyzing the alleged Russian hacking of the Democratic National Committee in May 2016. If Joffe was involved in shaping the narrative of the alleged hacking, it would cast yet more doubt on the flimsy yet prevailing conclusion that the Russian government was responsible.
Joffe has thus far not been charged with any offense. However, in court last week it emerged Joffe misled the FBI on where he got the Alfa data from. Second, he concealed his connections to Sussmann and the Clinton campaign from the FBI. But those two alleged lies happened in 2016 and are now time-barred under the five-year statute of limitations.
Why wasn’t Joffe charged? There are two possibilities: Either Durham messed up and let the statute of limitations lapse or Durham has far more serious charges in mind for Joffe than lying to the FBI. Durham has made mistakes but it’s unlikely he got this wrong. Major fraud against the United States government has a seven-year statute of limitations and may be what Durham is contemplating for Joffe.
What about Clinton and her top lieutenants? Not much was said about Jake Sullivan, Clinton’s 2016 campaign foreign policy adviser and current national security adviser who was pushing the Russia hoax during the 2016 campaign.
However, Clinton’s campaign manager Robby Mook was on the witness stand. He testified that Clinton was personally briefed on the Trump-Russia nonsense and gave the green light to hand the info to the media. While Mook’s admission is significant in that, for the first time, there is unequivocal evidence that directly ties Clinton to the Russiagate hoax, it is not a crime to lie to the media. Mook claimed he did not know the false data was being given to the FBI, nor did he state that Clinton knew.
Will Durham Pursue Government Actors?
That still leaves the public actors, in particular people like former FBI director James Comey, former FBI deputy director Andrew McCabe and former FBI counterespionage director Peter Strzok.
Through Sussmann’s lawyers—who spent most of their time casting doubt on the FBI—we found out that the FBI’s leadership was rooting for the fake scandal. An internal text message revealed the following:
“People on the 7th floor to include the Director are fired up about this server.”
Despite FBI cyber analysts having dismissed Sussmann’s server data as laughable, FBI leadership opened a full investigation into the matter, which they then farmed out to the lead agent in the FBI’s Chicago office, Curtis Heide. This is important because Heide is currently under DOJ investigation for concealing exculpatory evidence from the investigation, another fact that was revealed during the trial. Heide also happened to be in charge of the investigation of Trump 2016 campaign adviser George Papadopoulos and he was the arresting officer when Trump confidant Roger Stone’s home was raided in Florida.
Sussmann’s lawyers made the case that the FBI was not duped but was in on the scam, telling the jury, “They didn’t want to know.” While Sussmann’s team maintained that their client wasn’t responsible, it is notable that high-powered Washington lawyers would admit that the FBI promoted the Russia hoax.
Sussmann’s team also elicited evidence that FBI leadership prevented field agents from interviewing David Dagon, a tech expert who helped Joffe assemble the Alfa data, supposedly because FBI leadership did not want to interfere in the 2016 election. Had FBI agents interviewed Dagon—who is now cooperating with Durham—they would likely have found out about Joffe’s role in the scheme.
We also know that McCabe lied to his DOJ supervisors in March 2017 about the Russia investigation whose predicate had by that point completely fallen apart. He was not charged even though Durham has had access to the documents that prove that McCabe lied. Those documents have now been made public by Sussmann’s team but it is too late to charge McCabe as the five-year statute of limitations period has passed.
The same limitation period also applies to Comey’s statements to Congress in March 2017 when he talked up the Russia investigation despite knowing it no longer had any basis. We further already knew that Strzok lied to his DOJ supervisors about how the whole investigation got started, another lie that has now lapsed under the statute of limitations.
Given these circumstances, why was no one charged? The answer may simply be that Durham is effectively fenced in and limited to pursuing private actors. Aside from having only a barebones team and limited budget, Durham works under Biden’s DOJ, which is headed by Attorney General Garland, whose counsel is Margaret Goodlander, who happens to be Sullivan’s wife. It’s very difficult to take on government actors under such circumstances. This could change if Republicans win control of the House in November and provide Durham with political cover. But given that most offenses have lapsed such a development might come too late for Durham.
The Sussmann trial did, however, achieve at least two important successes. First, we now have documented evidence in the form of an internal text message that Comey and his group of FBI leaders were out to get Trump. Second, the trial revealed that Clinton herself greenlighted the scheme to vilify Trump with false claims of Russia collusion.
The Supreme Court has just vacated the Fifth Circuit’s stay of a district court’s preliminary injunction against HB20, Texas’s new social media law by a 5-4 vote. Justice Alito (joined by Justices Gorsuch and Thomas) wrote a dissent. (Justice Kagan also noted that she would deny the stay, but did not say why.) I’m sure that these issues will go to the Supreme Court reasonably soon and that others will have much to say on the merits. (I note that the dissent cites Eugene’s recent article on social media companies as common carriers.) But I wanted to flag a little procedural question about how the Court handles these applications.
When the Supreme Court grants these applications, one of the things it is supposed to consider is the likelihood that the applicant will eventually succeed before the Supreme Court. This is especially tricky because the Supreme Court has a lot of degrees of freedom. It can overturn and distinguish its own precedents in a way that lower courts don’t feel free to do. How should that factor in? Should the Court consider the cases under “existing law” or under what it thinks the law should look like after it decides the case?
Here is what Justice Alito says:
I cannot agree with the Court’s disposition. To be entitled to vacatur of the stay, applicants must show, among other things, a “substantial likelihood of success on the merits.” Alabama Assn. of Realtors v.Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 5).Members of this Court have argued that a determination regarding an applicant’s likelihood of success must be made under “existing law,”Merrillv.Milligan, 595 U. S. ___, ___ (2022) (ROBERTS, C. J., dissenting) (slip op., at 1); Wisconsin Legislaturev.Wisconsin Elections Commission, 595 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slip op., at 1) (“existing precedent”).And whether applicants are likely to succeed under existing law is quite unclear. . . . .
There is a funny ambiguity here. Justice Alito does not come out and say that you should judge these cases under “existing law.” Instead he just cites other Justices who have said so. And what’s more, he is citing dissents in cases where he was in the majority. In those earlier cases (especially Merrill v. Milligan, which is likely to dramatically change the standard for suits under Section 2 of the Voting Rights Act), Justice Alito did not seem to think he should judge the cases under existing law.
But in Netchoice, Justice Alito goes on to judge the case only under existing law. Is he concluding that the dissents were right, at least on that point about the legal standard? Or is the idea that a Justice can choose whether to judge the case under existing precedent, or under anticipated future precedent? (If so, we can add yet another example to Precedent and Discretion.) It’s curious.
(I know I said I’d leave the merits to others, but since it is a hobbyhorse of mine I will add that I think Justice Alito makes a fair point about severability, elsewhere in his dissent. It seems at least plausible that what the Supreme Court should have done is lift the stay as to Section 7’s anti-censorship provisions, while leaving the stay in place as to some of the other provisions. It’s unclear to me whether a majority of the Court concluded that there was a likelihood of success as to all of the challenges, or whether it just didn’t want to think about severability for some reason.)
