Month: August 2022

From yesterday’s decision in Grimmett v. Freeman, entered by Judge Toby Heytens, joined by Judge Albert Diaz:

In 2020, Josh Stein and Jim O’Neill were engaged in a heated campaign to serve as attorney general of North Carolina. The Stein campaign ran an advertisement the O’Neill campaign believes was false. Stein ultimately won the election.

Now, nearly two years later, the district attorney’s office in Wake County has indicated that it plans imminently to seek an indictment against Josh Stein’s campaign (and others involved in producing the advertisement) under a state criminal libel statute. The potential targets of the investigation sought a preliminary injunction against the district attorney, which the district court denied. The Stein campaign and its affiliates appealed and seek an injunction pending appeal.

We conclude plaintiffs have satisfied the demanding standard for obtaining an injunction pending appeal. Most critically, plaintiffs have made a “strong showing that [they are] likely to succeed on the merits” of their First Amendment challenge. Nken v. Holder (2009) (quotation marks omitted)…. The North Carolina statute at issue criminalizes publishing “derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity.” Because this statute regulates “core political speech,” First Amendment concerns are at their “zenith” and we must subject the statute to particularly careful constitutional examination.

Like the district court, we acknowledge that a nearly 60-year-old decision of the Supreme Court states that a “lie, knowingly and deliberately published about a public official” may potentially be the subject of a criminal prosecution. Garrison v. Louisiana  (1964) (emphasis added). Plaintiffs have questioned whether that holding remains viable under modem First Amendment doctrine. But, even accepting Garrison as good law, that same decision made clear that the First Amendment does not permit a State to criminalize “true statements,” even those “made with ‘actual malice.'” And it appears the law challenged here does just that by criminalizing a “derogatory report” made either “knowing such report to be false or in reckless disregard of its truth or falsity.” {At this point, we are not persuaded by the district court’s apparent conclusion that “derogatory” necessarily means false. The ordinary meaning of “derogatory” is “[l]essening in good repute; detracting from estimation; disparaging.” Derogatory, The Practical Standard Dictionary of the English Language (1936); see also State v. Petersilie, 432 S.E.2d 832, 834, 842 (N.C. 1993) (holding that a statute criminalizing “derogatory charges against candidates” “clearly does” cover “even truthful statements”). Plenty of perfectly true statements might reflect badly on a person and lessen their good repute.}

My quick reaction at this point:

I think the better way of reading the statute, especially in light of the canon that statutes should be interpreted to avoid constitutional problems, is to read “knowing such report to be false or in reckless disregard of its truth or falsity” as implicitly requiring that the statement be false. The “knowing such report to be false” expressly requires falsehood (if something is true, you might believe it’s false, but you can’t know it’s false), and in context “reckless disregard” should be read as importing a falsity requirement—especially since “knowledge that it was false or with reckless disregard of whether it was false or not” (I quote New York Times v. Sullivan here) is a standard legal phrase that’s used only as to falsehoods. Indeed, courts themselves at times use this phrase to implicitly require falsehood, e.g., Masson v. New Yorker Magazine, Inc. (1992) (or, similarly, Cannon v. Peck (4th Cir. 2022)):

The First Amendment limits California’s libel law in various respects. When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan (1964). Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author “in fact entertained serious doubts as to the truth of his publication,” St. Amant v. Thompson (1968), or acted with a “high degree of awareness of … probable falsity,” Garrison v. Louisiana (1964).

Literally, this too could be read as applying to true statements said with reckless disregard (especially since “defamatory,” like “derogatory,” doesn’t necessarily require falsehood); but in context, it’s clear that the Court viewed “knowledge that it was false or with reckless disregard of whether it was false or not” as implicitly requiring falsehood both for the knowledge and the reckless disregard prongs. (The statute in Petersilie only required anonymous derogatory statements, not ones said with knowledge of falsehood or reckless disregard.)

In any event, though, the court disagreed, and went on to conclude that the statute should indeed be enjoined given this potential that it found to cover true statements:

[As to alleged irreparable harm to the government,] the district attorney primarily contends that the two-year limitations period is about to run, jeopardizing her power to prosecute should she ultimately prevail in this appeal. It appears that any such injury is, at least to some extent, self-inflicted, because the district attorney has not adequately explained why it was necessary to wait so long to bring charges in a case where the alleged crime was broadcast on television nearly two years ago. In any event, plaintiffs have represented to this Court that they are willing to agree to a reasonable stipulation tolling the limitations period, mitigating the impact of any such injury. And to the extent the State has an interest in regulating false campaign speech (in this case or generally), the district attorney has not explained why an ordinary civil defamation action is inadequate to the task.

An injunction pending appeal also serves the broader public interest. Candidates currently running for office in North Carolina might well be chilled in their campaign speech by the sudden reanimation of a criminal libel law that has been dormant for nearly a century-harming the public’s interest in a robust campaign. After all, “it is our law and our tradition that more speech, not less, is the governing rule,” Citizens United v. FEC  (2010), and that the general remedy for even “falsehood and fallacies” “is more speech, not enforced silence,” Linmark Assocs. v. Willingboro Township  (1977) (quoting Whitney v. California (1927) (Brandeis, J., concurring)).

Judge Allison Rushing dissented:

Plaintiffs have not demonstrated they would suffer irreparable harm during the pendency of this expedited appeal absent injunctive relief. No Plaintiff claims that their speech is currently being chilled, or will imminently be chilled, because of the possible future enforcement of the North Carolina statute. The plaintiff public relations firm avers that it “intends to continue to work with North Carolina campaigns and candidates” but “will need to reconsider [its] position in the event that political advertising in North Carolina becomes a subject of criminal law enforcement.” That doubly qualified statement cannot support a finding of irreparable harm, especially when the political advertisement the State is investigating was last aired almost two years ago and no Plaintiff claims an interest in airing that advertisement, or a similar one, during this expedited appeal.

On the other side of the balance, the Wake County district attorney’s interest is significant. As the majority acknowledges, the two-year limitations period apparently will soon expire, and if we enjoin the grand jury proceedings, the State will forever lose its opportunity to enforce the law. The majority purports to know, on an undeveloped record, that the district attorney’s injury is “self-inflicted.” I do not agree with that reading of the limited record, and the State certainly does not owe us a more detailed explanation of its internal investigation and deliberative process to justify enforcing its laws within the relatively brief time period allotted by the state legislature. Moreover, I do not see how the majority’s proposed tolling stipulation between Plaintiffs and the district attorney would preserve the district attorney’s ability to prosecute the potential targets of the grand jury investigation, which by all accounts include individuals who are not parties to this lawsuit.

As for the public interest, the majority’s speculation about the current campaign cycle is out of place when its injunction does not reach any current campaign but is restricted to these Plaintiffs and their political advertisement that last aired almost two years ago. The people of North Carolina have an interest in letting North Carolina’s courts construe this untested state statute in the normal course if it is actually enforced. Even absent our intervention, an indictment may never issue-yet another reason to stay our hand and follow the customary course of deciding constitutional questions on appeal only after due deliberation.

The post N.C. Election Criminal Libel Statute Enjoined Pending Appeal appeared first on Reason.com.

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Just two years ago, Mehmet Oz was saying “we ought to completely change our policy on marijuana,” which he described as “one of the most underused tools in America.” Back then, Oz was still hosting his eponymous daytime talk show, a job he left in January to seek the Republican nomination for a U.S. Senate seat in Pennsylvania. But now that Oz is running for that seat against the Democratic nominee, Lt. Gov. John Fetterman, the former TV doctor has changed his tune on marijuana, mocking his opponent for supporting legalization.

“He’s the most radical candidate in the country,” Oz tweeted last week. The video he presented to back up that claim cites Fetterman’s positions on criminal justice reform, government spending, energy production, and “socialized medicine” while suggesting that he is taking his cues from Sen. Bernie Sanders (I–Vt.) a self-described “democratic socialist.” But the video begins by alluding to Fetterman’s support for legalizing recreational marijuana, which the ad presents as clear evidence of his left-wing wackiness.

He’s the most radical candidate in the country. pic.twitter.com/Z2jr8yowos

— Dr. Mehmet Oz (@DrOz) August 15, 2022

“Let’s pull back his hoodie and examine what’s in his head,” the narrator says as an animation shows the top of Fetterman’s skull come off. Out pop a bunch of screws, followed by a rainbow-colored bong. “Looks like he has some screws loose,” says the voiceover. “What’s this?” the narrator adds, referring to the bubbling, smoking bong, which elicits a couple of coughs. The unsubtle message: “John Fetterman is crazier than you think.”

During a recent Fox News interview, Oz likewise cited Fetterman’s position on marijuana legalization as evidence that he is unfit for the job he is seeking. “He’s known for hanging a pot flag out of the windows” and “campaigning” to “get marijuana legalized,” Oz said.

In 2020, by contrast, Oz did not seem to think that position was manifestly absurd. Oz told rapper and radio personality Fatman Scoop that Montel Williams, another daytime talk show host, had “years ago” persuaded him that marijuana was medically useful by explaining how it helped alleviate the symptoms of his multiple sclerosis. “We ought to completely change our policy on marijuana,” Oz said. “It absolutely works.”

While elaborating on marijuana’s medical utility, Oz also noted that its hazards compared favorably to those of alcohol and prescription drugs. “I’ve seen this helping people with sleep issues, with pain issues for sure, and a lot of people who have serious medical problems getting relief,” he said. “And here’s the thing: You can’t die from it. I’m unaware of any case when anyone has overdosed. It’s not really addictive….It’s a lot safer than alcohol. It’s safer than narcotics. It ought to be used more widely, and we can’t even study it that easily because of the way it’s regulated.”

Oz reported that he had discussed the issue with officials at the Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA). The message from the DEA, he said, was “we don’t want this to be illegal,” but “we got to enforce the law.” Meanwhile, he said, the FDA told him, “We think it ought to be used, but until the DEA says it’s allowed, we can’t let people prescribe it.”

Oz, who called the federal government’s treatment of cannabis “a farce,” was alluding to a conundrum created by marijuana’s classification as a Schedule I controlled substance, a category supposedly reserved for drugs that have a high potential for abuse, cannot be used safely even under a doctor’s supervision, and have no accepted medical use. The DEA has the legal authority to reschedule marijuana in consultation with the Department of Health and Human Services, which includes the FDA. The DEA had long taken the position that marijuana cannot be removed from Schedule I until there is enough evidence to persuade the FDA that it should be approved as a prescription drug. But as Oz noted, the restrictions associated with marijuana’s Schedule I status made it difficult to study its medical applications.

While Oz’s comments during that interview focused on the medical use of marijuana, the comparison with alcohol suggested an openness to allowing recreational use. So did his assertion that “we ought to completely change our policy on marijuana.” Oz, who said he had never smoked marijuana, added that he would not be inclined to “get high” if it were legal, which again implied that he was contemplating a broader change than allowing patients to use marijuana for symptom relief.

By last May, Oz seemed to have forgotten his pro-marijuana statements. In a Newsmax interview, he suggested that legalizing recreational use in Pennsylvania, where medical use has been allowed since 2016, would be a mistake. “There are not enough Pennsylvanians to work in Pennsylvania,” Oz said, “so giving them pot so that they stay home is not, I don’t think, an ideal move….We need to get Pennsylvanians back at work, gotta give them their mojo, and I don’t want marijuana to be a hindrance to that.”

Those comments invoked a hoary anti-pot trope, suggesting that marijuana use saps motivation and makes people unwilling or unable to work. Notably, Oz expressed no such concern when he was singing marijuana’s praises in 2020.

Oz now has gone beyond skepticism of recreational legalization or even forthright opposition to that policy. In his eagerness to discredit Fetterman, he is suggesting that supporting legalization is self-evidently crazy.

Oz may think that stance will endear him to conservatives who take a similar view and reinforce his argument that Fetterman is unacceptably “radical,” based on the outmoded assumption that opposing pot prohibition is a reliable marker of left-wing politics. Former House Speaker Newt Gingrich, who falsely claimed that Fetterman “took down the American flag in his office in the Capitol to put up the marijuana flag and the gay pride flag,” seems to agree. If you don’t think the government should be arresting and incarcerating cannabis consumers and the people who supply them, he implied, you are unpatriotic.

Gingrich, who has not won an election in more than two decades, does not seem to have noticed that a large majority of Americans—more than two-thirds, according to the latest Gallup poll—agree with Fetterman that marijuana should be legal. A 2021 Muhlenberg College poll found that 58 percent of Pennsylvania adults supported the “complete legalization” of marijuana in that state. On this issue, it is Oz, not Fetterman, who is outside the mainstream.

The post Senate Candidate Dr. Oz, Who Once Sang Pot's Praises, Now Thinks Supporting Legalization Is Clearly Crazy appeared first on Reason.com.

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When President Joe Biden and his fellow Democrats were pushing the passage of a $1.9 trillion stimulus bill in early 2021, economist Larry Summers warned that the American Rescue Plan would likely trigger runaway inflation.

He was ignored, but he was ultimately proven right.

Now, Biden is prepared to announce a broad-based student loan forgiveness plan that will erase between $10,000 and $20,000 in debt for Americans earning as much as $125,000 this year. The proposal also reportedly extends an ongoing payment moratorium through the end of the year. Biden is expected to announce the proposal in televised remarks from the White House later this afternoon.

Summers, a veteran of both the Clinton and Obama administration, is once again warning that the policy could worsen already high inflation.

“Student loan debt relief is spending that raises demand and increases inflation,” Summers wrote on Twitter yesterday. “It consumes resources that could be better used helping those who did not, for whatever reason, have a chance to attend college. It will also tend to be inflationary by raising tuitions.”

There are several good points there worth unpacking.

First, even though student debt relief might not look like spending the way we traditionally think of it—the government isn’t cutting checks or awarding grants here, the way it did in the American Rescue Plan, for instance—economically, it will function the same way.

Because money is fungible, student loan borrowers will effectively now have extra discretionary income equal to whatever they would have had to pay towards that $10,000 in loans. That might sound great, but remember that the standard definition for inflation is what happens when a larger supply of money is chasing the same amount of goods and services. Money that would have been spent paying back loans will, upon the conclusion of the repayment moratorium, remain circulating in the regular economy. Ending the repayment moratorium without passing forgiveness would’ve been deflationary by returning U.S. dollars to Treasury.

The last point that Summers makes is also a good one. An entirely predictable response to a $10,000 student loan forgiveness plan would be colleges and universities hiking tuitions—while telling future students not to worry about the rising sticker prices because, hey, a portion of your loans will likely get forgiven anyway.

In short, student loan forgiveness will contribute to inflation on both macroeconomic and microeconomic levels, Summers explained. “Unreasonably generous student loan relief” would contribute to generally higher prices throughout the economy, he tweeted, while simultaneously “encouraging college tuition increases.”

Summers is not the only center-left economist to warn about the potential ramifications of the Biden administration’s short-sighted student debt relief plan. Jason Furman, a Harvard economist and former head of the White House’s Council of Economic Advisors during the Obama administration, tweeted on Monday that student debt relief “benefits recent college grads and hurts most everyone else, both rich and poor.”

“Student loan relief is not free,” Furman wrote. The roughly $300 billion debt forgiveness plan would be paid for, he added, in part by the 87 percent of Americans “who do not benefit but lose out from inflation.”

“Student loan relief would lead some people to spend more,” Furman continued. “We can’t make more so others would consume less. The way that happens is inflation.”

But one does not need to be a former Treasury secretary or White House economic advisor to understand that debt forgiveness is inflationary, it seems. A poll conducted earlier this month by CNBC found that 59 percent of Americans worry that forgiving student debt will worsen inflation.

The key difference between the Biden administration and center-left economists like Summers and Furman is that the latter group are politically liberal but acknowledge that markets and prices are actually real things.

The White House, meanwhile, continues to pursue economic policies with total disregard for the trade-offs that come from them. It would be nice if you could end poverty by printing money and dumping it into bank accounts in the same way that it would be nice if you could jump out of a plane with no parachute and float gently to the ground. But ignoring reality won’t lead to productive outcomes in either situation.

Fifteen months ago, Biden ignored economists’ warnings and the rest of America got burned. Will it be any different this time around?

The post Biden's Student Debt Relief Plan Will Worsen Inflation appeared first on Reason.com.

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In the wake of a recent shooting that left six bystanders injured by Denver police officers, officials were looking for a way to keep the order in the city’s Lower Downtown district. Hoping to reduce crowds—and crime, the logic went—the city moved to ban food trucks from operating in profitable late-night weekend slots.

At 1:30 a.m. on July 17, Denver Police Department officers were monitoring the crowds of people departing nightclubs. They witnessed an altercation involving Jordan Waddy, with one officer observing that he “may have had a firearm concealed in his hoodie or waistband.” An officer saw Waddy “reaching into his waistband or pocket in a motion consistent with pulling out a firearm,” so the cops began to shoot (bodycam video later revealed that Waddy removed his handgun from his hoodie and tossed it to the ground). Six bystanders were injured in the ordeal.

Following the shooting, Denver officials wanted to find a way to combat crime downtown. So even though the police admitted that something went wrong “from a tactics standpoint,” the city moved to ban food trucks from operating in Lower Downtown on Thursdays, Fridays, and Saturdays. Officials “touted moving food trucks off those streets as one way to decrease crowds, chaos and crime,” according to the Denver-based outlet Westword. Food truck owners were instead forced to park blocks away from the area, much further from the bars and their crowds. The truck owners say they weren’t consulted, and now worry about how they’ll stay afloat without the profitable weekend slots.

“Ninety-nine percent of the trucks down here are owned by immigrants, people who speak broken English, who have much more limited access to resources than a bar or restaurant,” Sanjin Mutic, owner of a gyro food truck, told Denver’s 9News. “If we’re speaking about 20 food trucks, you’re likely most likely looking at 30 to 40 families that rely on a livelihood from down here.”

“Food truck owners often come from disadvantaged backgrounds. They also tend to have less money and fewer political connections than other business owners,” Justin Pearson, senior attorney at the Institute for Justice (IJ), a libertarian public interest law firm, tells Reason. “Sadly, this makes them an attractive target when powerful city officials make an embarrassing mistake and are looking for a scapegoat.”

Last week, IJ sent a letter to the Denver City Council raising concerns about the lack of logic and potential unconstitutionality underlying the food truck ban. “Although recent violence in the neighborhood supposedly motivates this ban, it is undisputed that food trucks had nothing to do with the violence,” wrote Pearson. Since food trucks—but not other brick-and-mortar businesses—are barred from operating, Pearson argued that the ban raises “a host of constitutional concerns, ranging from equal protection to arbitrary enforcement.”

Following the letter, a Denver Police Department representative announced that food trucks would be allowed to operate in Lower Downtown again starting August 25—but only six spots will be made available and they’ll have to leave by midnight. Food truck owners will have to apply to occupy one of the spots, but they’re already reporting that the city’s application portal is glitchy. The Institute for Justice continues to push for a full repeal of the ban.

“Food trucks make neighborhoods safer, so the last thing you should ever want to do from a public-safety standpoint is ban food trucks,” says Pearson. People will still be congregating and intoxicated in Lower Downtown, given that bars aren’t being forced to close. And, according to a 2012 IJ report, food trucks often serve as “eyes on the street,” which can help prevent crime and promote public safety.

Despite partially lifting its punitive ban on food truck owners, Denver continues to unjustly target them. “This ban is crushing the food truck owners, even though it is undisputed that they did nothing wrong,” says Pearson. “When you ban businesses from going where the customers are, they go out of business.”

The post Denver Police Hurt 6 Bystanders in a Shooting. So the City Cracked Down on Food Trucks. appeared first on Reason.com.

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