Month: June 2023

On Tuesday, in Nuziard v. Minority Business Development Agency (MBDA) federal district court judge Mark T. Pittman issued an injunction against the MBDA’s Business Center Program. These Centers may give assistance only to businesses owned by socially or economically disadvantaged individuals. A Business owned by a “Black, African American, Hispanic, Latino, American Indian, Alaska Native, Asian, Native Hawaiian, Pacific Islander, Puerto-Rican, Eskimo, Hasidic Jew, Asian Indian, or a Spanish-speaking American,” is presumptively considered to be owned by a socially or economically disadvantaged individual. According to the opinion, and unlike similar federal programs, no individual outside of the designated groups can be eligible, no matter how socially or economically disadvantaged.

Most interesting from my perspective, Judge Pittman focused on the arbitrariness of the relevant classifications:

[T]he Program is not narrowly tailored because it is underinclusive and overinclusive in its use of racial and ethnic classification… It is underinclusive because it arbitrarily excludes many minorityowned business owners—such as those from the Middle East, North Africa, and North Asia. For example, it excludes those who trace their ancestry to Afghanistan, Iran, Iraq, and Libya. But it includes those from China, Japan, Pakistan, and India. The Program is also underinclusive because it excludes every minority business owner who owns less than 51% of their business.

In researching my book Classified, I hoped and really expected to find cases involving two issues that have received very little attention in the relevant academic literature.

First, what happens when a government agency rejects someone’s claim to be a member of a designated minority group eligible for affirmative action? The conventional wisdom is that only one such case existed, involving Irish-American firefighters who claimed to be black. That struck me as very unlikely. My intuition was correct. I found a couple of dozen or so additional modern cases in which a party’s racial status was adjudicated.

Second, while the Supreme Court has never directly addressed the issue, I thought there must be a fair number of cases discussing whether the classifications a government entity has adopted for affirmative action cases pass constitutional muster under the strict scrutiny test, which requires both a compelling government interest and the law be narrowly tailored to serve that interest. In other words, discussion not simply of whether affirmative action preferences are constitutional in the abstract as serving a compelling government interest, but whether the groups that are included and excluded meet the narrow tailoring requirement.

I was disappointed on that one. Very few cases address the issue, except in passing. The leading case, such as it is, is Peightal v. Metropolitan Dade County,  940 F.2d 1394 (11th Cir. 1991). In that case, the Eleventh Circuit held that while the decision to classify people by race and provide an affirmative action benefit to certain groups is subject to strict scrutiny, once a court concludes that the program itself meets the compelling interest test, if challenged the classification scheme used by the government is subject only to the very forgiving rational basis test.

Peightal seems obviously wrong. It’s entirely implausible to me to read the Supreme Court’s binding jurisprudence on these matters as saying that once the government demonstrates a compelling interest in racial and ethnic preferences, it can allocate those preferences in almost any way it desires.

I suspect that one reason Peightal came out as it did is that it would be very difficult if not impossible for the government to create a classification scheme for affirmative action that would meet the strict scrutiny/narrow tailoring requirement. The court wasn’t prepared to issue a ruling that would call almost all racial preference programs into question, so it punted.

Judge Pittman acknowledged the problem in a footnote: “Fashioning a racial or ethnicity-based policy that is not underinclusive or overinclusive is extremely difficult and almost impossible in a multiethnic country like the United States.” The logical inference to draw from this fact is not that courts should ignore the narrow tailoring requirement, but that racial and ethnicity-based policies are almost always unconstitutional.

Judge Pittman’s ruling Nuziard called to mind Judge Amul Thapar’s opinion in Vitolo v. Guzman, 999 F.3d 353 (6th Cir. 2021),which came out just as I was finishing my book manuscript:

The government’s policy is plagued with other forms of underinclusivity. Consider the requirement that a business must be at least 51% owned by women or minorities…

The dispositive presumption enjoyed by designated minorities bears strikingly little relation to the asserted problem the government is trying to fix. For example, the government attempts to defend its policy by citing a study showing it was harder for black business owners to obtain loans from Washington, D.C., banks. Gov’t Resp. 15. Rather than simply designating those owners as the harmed group, the government relied on the Small Business Administration’s 364*364 2016 regulation granting racial preferences to vast swaths of the population. For example, individuals who trace their ancestry to Pakistan and India qualify for special treatment. But those from Afghanistan, Iran, and Iraq do not. Those from China, Japan, and Hong Kong all qualify. But those from Tunisia, Libya, and Morocco do not. This scattershot approach does not conform to the narrow tailoring strict scrutiny requires.

The stark realities of the Small Business Administration’s racial gerrymandering are inescapable. Imagine two childhood friends—one Indian, one Afghan. Both own restaurants, and both have suffered devastating losses during the pandemic. If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend. Why? Because of his ethnic heritage. It is indeed “a sordid business” to divide “us up by race.”

Congratulations to the lawyers at the Wisconsin Institute for Law & Liberty, who represented the plaintiffs in both Nuziard and Vitolo.

The post Important Federal District Court Decision on Racial Classifications and Affirmative Action appeared first on Reason.com.

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Pandemic-era price spikes in traditionally affordable western and sunbelt states, plus persistently high rents and home prices in expensive coastal metros, have made housing affordability the issue in many state legislatures.

To bring prices back down, Yes in My Backyard (YIMBY) reformers and like-minded legislators introduced a long list of reforms that allow more types of housing to be built in more places and streamline the approval of projects.

The results were a mixed bag.

Legislatures in three states—Washington, Montana, and Vermont—passed bills legalizing at least duplexes on almost all residential land. That makes six states that have now eliminated single-family-only zoning.

Washington and Montana also passed a long list of complementary reforms, including bills in both states that streamline housing approvals and let homeowners add accessory dwelling units (ADUs) to their properties.

On the other hand, ambitious omnibus bills that tried to squeeze through most of the YIMBY agenda in one fell swoop failed in Colorado, Arizona, and, most dramatically, New York.

The mixed results are the product of a maturing YIMBY movement that’s willing to take more risks and which has a higher threshold for success, says Salim Furth, a senior research fellow at George Mason University’s Mercatus Center.

“The Overton window really moved on what states can do and our standards were higher for what constitutes a win,” he tells Reason. “We’re looking for bills that would obviously, immediately release a lot of construction activity.”

Indeed, when Minneapolis, Minnesota, became the first municipality in the country to end single-family-only zoning, it earned headlines in major national outlets. When Vermont did the same thing for the entire state this week, the reaction was much more muted.

It’s not surprising that as more states pass middle housing bills, each successive bill gets less attention.

As to why more states have managed to pass these bills, activists have a few explanations. The first is that the problem of housing affordability is getting worse in large swaths of the country, particularly in the western U.S. That’s helped focus legislators on this issue.

“We struck at the right time. The housing crisis has just reached such extraordinary levels in recent years. It really hastened the urgency for people to act,” says Kendall Cotton, executive director of Montana’s free market Frontier Institute, which helped craft the state’s zoning bills.

“The national conversation around the housing shortage is just getting more and more intense. Everyone is experiencing it in one way or another and legislators feel like they need to do something about it,” agrees Dan Bertolet, of the Seattle-based Sightline Institute, which helped write Washington’s zoning bills.

Another major factor was bipartisanship. Where housing bills had the support of members of both parties, they tended to pass. Where they didn’t, they almost always failed.

That was true even in states where one party controlled both legislative chambers and the governor’s mansion. That’s because the partisan valence of zoning reforms is all over the map, with Republicans and Democrats both for and against it. A few votes from the minority party are therefore necessary to make up for defections from lawmakers in the majority.

In Washington, Bertolet notes, Republican legislative leadership was on board with all successful zoning reforms; the bills that did pass could have easily failed without GOP votes.

“We were able to build such an awesome bipartisan coalition from all walks of life, all political perspectives,” says Montana’s Cotton. “They were able to approach this issue from any political perspective and say whatever political perspective, zoning has something for you.”

Right-leaning groups and lawmakers could sincerely make a case for property rights to their partisan allies, while left-leaning groups could talk about equity and inclusion. Everyone could agree they didn’t want to end up like California.

That diverse coalition of supporters was enough to overcome entrenched opposition from local governments and their state-level lobbying arms.

Meanwhile, in Democratic-dominated Colorado and New York, both Republican caucuses were unanimously opposed to this year’s zoning reforms. That meant Democratic defections were enough to sink housing bills there. It’s a similar story in Arizona’s polarized, closely divided legislature, where almost all Democrats lined up against a Republican-led zoning reform effort. Reformers in both states bet all their chips on one big zoning reform bill, which didn’t help.

Colorado’s bill, a pet cause of Gov. Jared Polis, would have required all cities to allow accessory dwelling units (ADUs) everywhere; larger cities would’ve been required to allow middle housing and larger apartments near transit stops. The bill would have also given state officials the power to write model ordinances and required cities to estimate housing needs. It also would have overridden private homeowner association restrictions on denser housing.

That’s a lot of policy to pack in one bill that observers noted was introduced relatively late in the session.

“The land use bill is probably one of [the biggest], if not the biggest bill that I’ve ever seen in my legislative career,” Colorado Sen. Dylan Roberts told Colorado Public Radio. “That level of impact was unique, but one of the main reasons why this bill didn’t advance this year is that it just ran into the calendar.”

Likewise, Arizona’s S.B. 1117 would have banned aesthetic design requirements, legalized middle housing and ADUs, allowed residential development in commercial zones, raised allowable densities for affordable housing near transit, required faster issuance of permits, and more.

The plan, according to bill sponsor Sen. Steve Kaiser (R–Phoenix), was to put something comprehensive out there, vote on it early, see what the legislators would live with, and then amend it throughout the process.

But an early Senate floor vote saw the bill roundly defeated, making the bill number “radioactive,” Kaiser told Reason in a March interview. (There is some hope that various provisions of S.B. 1117 will squeak through the legislature via other smaller bills when lawmakers reconvene in a few weeks.)

Washington’s transit-oriented development bill—which would have allowed more intense commercial and residential development near transit stops—failed due to disagreements over affordable housing requirements. A Montana bill to shrink minimum lot size requirements also failed.

Because these policies were included in one-off bills, they could be killed without dooming the entire zoning reform agenda.

“The everything bagel bills, they all failed,” says Furth. “Washington and Montana got an everything bagel’s worth of bills passed, broken up.”

The only “everything bagel” bill that did succeed was Oregon’s overhaul of its state planning system, which could either be good for housing production and property rights or a massive bureaucratic bust. That bill’s success was probably helped by the fact that Oregon already had one of the country’s most centralized systems of land use regulation

The most significant YIMBY loss of the year was the failure of New York Gov. Kathy Hochul’s Housing Compact, a major zoning overhaul that would have required localities to change their zoning codes to accommodate housing growth of 1 percent every three years (or 3 percent in the New York City area). If localities didn’t hit those targets, developers could get projects of potentially unlimited density approved directly by the state.

When it was unveiled, I argued it would be a very effective tool for goosing housing production. Nevertheless, it was a far-reaching, relatively radical reform that lacked support from the state’s Republicans. Many Democrats also didn’t like it for prioritizing market-rate development over subsidized, income-restricted affordable housing.

It didn’t help that the New York Legislature was also considering a “good cause” eviction bill that, if passed, would have given the state perhaps the most restrictive rent control regime in the country.

That saw real estate interests, who would otherwise be on the side of the new supply promised by the housing compact, devote most of their energies to fighting the good cause eviction bill. That put them on the opposite side of the state’s central YIMBY organization, Open New York, which endorsed the housing compact and good cause eviction.

The result of this hot mess is that no major housing legislation is likely to pass the New York Legislature this year.

On the flip side, probably the most under-discussed zoning reform success story of the year happened in Florida. There, the legislature passed what purported to be a fiscal bill funding many housing affordability programs. The flashiest part of it was that it banned rent control in the state.

Tucked inside the law were also provisions allowing developers to build residential projects containing affordable units on commercial and industrial-zoned properties. It also gives developers sizable density bonuses that allow them to build larger projects with more units.

It’s a surprising win for zoning reform under Republican Gov. Ron DeSantis, whose administration last year sued Gainesville, Florida, for legalizing fourplexes in single-family-only areas. Despite the relatively high affordability requirements, BisNow reports developers are now in a “mad rush” to use the new law.

In reading the tea leaves on what reforms managed to pass and which failed, it’s important to remember that state legislatures are peculiar institutions where processes and personalities also matter. That means bills can succeed or fail for seemingly trivial reasons.

In Texas, fights between the House Speaker and the Lieutenant Governor (who is also president of the state senate) over property tax reform and school vouchers stalled the progress of a lot of unrelated bills in the state’s already short legislative session.

The result was that a minimum lot size reform passed the Texas Senate but died in the House while waiting for a vote on the last day of the session. Lone Star housing reformers tell Reason that if the session had lasted another three hours, the bill might have passed.

How impactful all these various reforms will be remains to be seen. If recent history is any guide, the middle housing bills that passed will produce few duplexes and triplexes without additional reforms.

On the other hand, Washington and Montana’s ADU bills could plausibly add a lot of new units. So could their wonky process reforms that cut down on public hearings and burdensome environmental review. Even where reforms failed, there’s hope that the coalitions behind those bills can learn from this year’s experiences and start fresh next legislative session.

In general, though, the volume of reforms being proposed and getting passed is trending up. That’s good news for those who support property rights and cheaper housing and hate the zoning laws that undercut both.

“I’m much more optimistic than I was a year ago or two years ago about what can get passed state legislatures,” says Furth.

The post In State Legislatures, Targeted Bills and Bipartisan Support Were Key To Passing Housing Reforms appeared first on Reason.com.

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The article is here; here is the Introduction:

It was 1971 and Los Angeles Times editor Nick Williams had what he called a “terribly uneasy feeling.” In a letter to one of the paper’s Washington correspondents, he wrote of his suspicion that journalism had “lost credibility … with an alarming percentage of the people.” If the plummet continued, Williams fretted, journalists will have “destroyed or weakened a keystone of our Constitution.”

Williams’s assessment was not entirely wrong. Polling data from 1971 confirmed that a dismal 18% of Americans had a “great deal of confidence” in the press.

But he also wasn’t quite right. Far from undermining American government’s democratic foundations, the press was likely shoring them up, having already entered what has been called its “Glory Days.” This era was brought about, in part, by the press’s performance of its watchdog role, exposing political corruption and government cover-ups. It was also brought about by something else: law. The Supreme Court and legislatures boosted the press by celebrating this watchdog role and granting it tools to enhance this work.

Today, 1971 feels familiar. Polls again register dreadfully low levels of trust in the media. “Terribly uneasy” may be a generous description of how journalists feel about the public’s perception of them and the press’s ability to continue playing its democratic role.

Are we again on the verge of a reinvigorated and newly effective press, or is trust headed deeper into the abyss? Institutions, including the press, are at an inflection point. History gives press advocates a basis for optimism. Yet, history provides no failsafe template.

Today, if journalists were to double down on their still-vital watchdog role as a way of building trust, such an effort might backfire. There is a risk that in our hyper-polarized society, citizens would recoil, finding this aggressive brand of journalism too cynical, negative, and politicized. A new approach is needed.

A promising approach would be to embrace another key journalistic function, one that has received far less attention and adulation from judges, legislators, and legal scholars than the press’s watchdog role: the press’s role as a convener and facilitator of the public square. As Bill Kovach and Tom Rosenstiel write in their journalism classic, The Elements of Journalism, a key function of journalism is to “provide a forum for public criticism and compromise.” Of late, journalists themselves are embracing this role as they develop what has alternately been called “community-centered journalism,” “social journalism,” and “engaged journalism.”

This journalism movement envisions the relationship between journalists and citizens very differently than watchdog journalism does. In watchdog journalism—true to the metaphor—journalists are protectors of the public. As watchdogs, they use their professional expertise and privileged position as members of the Fourth Estate to expose government wrongdoing. In this way, the press exercises a position of power over citizens. The intent is to wield power benevolently and in the public interest, but it is a hierarchical relationship nonetheless.

In contrast, community-centered journalism intentionally seeks to minimize that power differential. It brings citizens into the news-making process—from deciding what to cover, to assisting with information-gathering, to providing post-publication feedback—creating what Tom Rosenstiel has called a “virtuous circle of learning.” Some community-centered journalists have gone so far as to say that the movement’s primary aim is not necessarily the creation of news; it is building trusting and healthy communities. News is a byproduct.

Judges, legislators, and legal scholars should take note of this shifting journalistic landscape. Just as law helped to build and maintain public trust in the watchdog press in the 1960s and 70s, law likewise has a part to play now. The legal system can solidify the role of the press not only as a watchdog (still a necessary function) but also as a facilitator and convener, as exemplified by the community-centered press movement. And it can do so using methods drawn from the Glory Days: positive rhetoric about the press and legislation that eases the press’s ability to fulfill its democratic functions. Legislation could be as straightforward as allocating funds for local meeting spaces and training for journalists. By creating a legal framework for the press that is richer and more reflective of diverse journalistic practices, law would strengthen the “virtuous circle” Rosenstiel describes. Greater public trust in the press could be a byproduct.

The post Journal of Free Speech Law: "Beyond the Watchdog: Using Law to Build Trust in the Press," by Prof. Erin Carroll appeared first on Reason.com.

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Joseph Zamora was nearly beaten to death by police in 2017. After surviving a medically-induced coma and a monthlong ICU stay, he was charged with assaulting a police officer and served two years in prison. Zamora’s conviction was overturned by the Washington Supreme Court last year. Now, a prosecutor is trying to recharge Zamora because he has “not accepted responsibility for his role” in the beating that almost killed him. 

The incident occurred in February 2017 when police officer Kevin Hake stopped Zamora while he was walking to his niece’s house in Grant County, Washington. The cause for the stop was a neighbor’s report about a suspected “car prowler.”

A struggle between the two men ensued, which the state conceded “escalated far beyond what should have happened.” According to an Appeals Court opinion, during the struggle, Hake “drew his handgun and placed it against Mr. Zamora’s ear, temple, and in his mouth.” Over his radio, another officer reported hearing Hake say, “Put your hands behind your back, I’ll fucking kill you.” 

According to the Appeals Court opinion, six additional officers arrived on the scene, and they “collectively struck [Zamora] repeatedly, pepper-sprayed him in the face twice,” and used their stun guns to stun him three times. By the end of the beating, Zamora wasn’t breathing and had no pulse. 

Zamora was taken to a local hospital, where a blood test determined that he had methamphetamine, amphetamine, and THC in his system. He was soon transferred to another hospital, remaining in the ICU for around four weeks. 

Eventually, prosecutors charged Zamora with two counts of third-degree assault for his alleged assaults of two officers, one of whom sustained some bruising and a “couple small scratches around [his] hand and wrist.” The other officer injured his hand by repeatedly punching Zamora in the back of the head.

Zamora was convicted and served nearly two years in prison. However, in June 2022, Zamora’s conviction was thrown out on appeal after he argued that the prosecutor in his case had made racially-biased statements during the jury selection process.

The prosecutor in Zamora’s case, Garth Dano, had quizzed potential jurors about their beliefs on immigration, border security, and crime committed by immigrants, asking them questions like “Can you make room for the idea that when they hear that 100,000 people come across illegally a month, and of those we’ve got people from countries that—countries on our list that aren’t even allowed in the country are part of that group?”

 The Washington Supreme Court unanimously reversed Zamora’s conviction, ruling that while Zamora is not an immigrant, these statements were racially biased.

“Contrary to the State’s assertion, no legitimate, relevant trial purpose supports the prosecutor’s questions or statements,” wrote Judge Charles W. Johnson. “Rather, the apparent purpose of the remarks was to highlight the defendant’s perceived ethnicity and invoke stereotypes that Latinxs are ‘criminally; and ‘wrongly’ in the country, are involved in criminal activities such as drug smuggling, and pose a threat to the safety of ‘Americans.'”

According to documents obtained by the Seattle Times, following the Supreme Court’s ruling, Zamora asked when he could file a tort claim, which is necessary to file a civil rights lawsuit against the city and its police department. Zamora also reportedly left a voicemail to Grant County Prosecutor Kevin McCrae “demanding” that he charge the officer who beat Zamora with attempted murder.

McCrae is now attempting to prosecute Zamora again for the same alleged crime—seemingly in retaliation. While McCrae has refused to comment on the reasoning behind his attempt to retry Zamora, a draft response to a bar complaint against McCrae after he decided to recharge Zamora obtained by the Seattle Times contains an explanation.

“It is clear to me that Mr. Zamora had not accepted responsibility for his role in this incident,” McCrae wrote. “While there is no more jail time available in this case, any conviction would still count as criminal history on his offender score, would have an effect on the sentence for any future crimes Mr. Zamora may commit, and hopefully impress upon Mr. Zamora the improperness of his behavior.”

The post Police Almost Beat Him To Death. After His Conviction Was Dismissed, Prosecutors Are Recharging Him. appeared first on Reason.com.

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Back in 1995, Bryan Range pleaded guilty to fraudulently obtaining $2,458 in food stamps by understating his income. He returned the money, paid a $100 fine and $288 in court costs, and served three years of probation.

Although Range did not realize it, that Pennsylvania misdemeanor conviction also came with a lifelong penalty: Under federal law, he lost the right to own firearms. That disability, the U.S. Court of Appeals for the 3rd Circuit ruled yesterday in Range v. United States, is inconsistent with the constitutional right to keep and bear arms.

The 3rd Circuit applied the test that the Supreme Court established last year in New York State Rifle & Pistol Association v. Bruen, which rejected a state law requiring that residents demonstrate “proper cause” to carry guns in public for self-defense. When a gun control law restricts conduct covered by the “plain text” of the Second Amendment, the Court said, the government has the burden of demonstrating that it is “consistent with this Nation’s historical tradition of firearm regulation.” The 3rd Circuit’s 11–4 decision is the first en banc federal appeals court ruling to reject a gun restriction under the Bruen test, which cast doubt on the constitutionality of many firearm regulations.

“We hold that the Government has not shown that the Nation’s historical tradition of firearms regulation supports depriving Range of his Second Amendment right to possess a firearm,” Judge Thomas M. Hardiman writes in the majority opinion. “Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, [it] cannot constitutionally strip him of his Second Amendment rights.”

The Firearms Policy Coalition (FPC), which filed a brief supporting Range’s case, welcomed the decision. “For nearly three decades, Mr. Range has been unjustly denied his Second Amendment rights,” Joseph Greenlee, director of constitutional studies at the FPC Action Foundation, said in a press release. “We’re thrilled that Mr. Range’s rights have been restored, and about the decision’s potential implications for countless others who have been wrongfully disarmed.”

The ruling highlights the injustice of a federal law that makes it a felony, punishable by up to 15 years in prison, for broad classes of “prohibited persons” to own guns. In Range’s case, the relevant restriction, 18 USC 922(g)(1), prohibits gun possession by anyone convicted of a crime, violent or not, that is punishable by more than a year of incarceration. While that usually means a felony conviction, the disqualification also applies to state offenses classified as misdemeanors if the maximum penalty exceeds two years.

Although Range was not sentenced to jail or prison, his crime was punishable by up to five years in prison, which meant he was no longer allowed to buy or own a firearm. When he tried to buy a deer-hunting rifle in 1998, he failed the background check.

Range figured that must have been a mistake. His wife bought him a rifle, then bought him another after the first one was destroyed in a house fire. Range later tried again to buy a gun but was again turned away. That prompted him to look closely at the federal prohibition, commonly but misleadingly described as applying to “felons.”

After discovering he was a “prohibited person” even though he had not been convicted of a felony, Range sold his hunting rifle to a gun dealer. But for the federal prohibition, he says, he would have kept the rifle and might also have bought a shotgun for home defense.

In 2021, before Bruen, a federal judge rejected Range’s claim that his disqualification violated the Second Amendment. Applying the two-step analysis that had been endorsed by the 3rd Circuit but was later rejected in Bruen, the district court concluded that Range’s conviction made him an “unvirtuous citizen,” which it said meant the Second Amendment did not apply to him. The court therefore did not proceed to the second step, which would have entailed weighing the burden imposed by Section 922(g)(1) against its purported benefits.

Last year, a three-judge 3rd Circuit panel upheld that decision under the Bruen test. Prohibiting Range from owning a gun was “consistent with this Nation’s historical tradition of firearm regulation,” it said, because his conviction “places him outside the class of people traditionally entitled to Second Amendment rights.” Yesterday’s opinion rejects that conclusion.

The government argued that Range has no Second Amendment rights because he is not part of “the people” whose “right to keep and bear arms” it protects. “The right to bear arms has historically extended to the political community of law-abiding, responsible citizens,” it said.

In the landmark Second Amendment case District of Columbia v. Heller, the Supreme Court did refer to “law-abiding citizens.” It said the amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” And it upheld “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” But the Court also recognized that the phrase “the people,” which appears in the First, Fourth, Ninth, and 10th amendments, as well as the Second, “unambiguously refers to all members of the political community, not an unspecified subset.” According to Heller, that language creates a “strong presumption” that the right to arms “belongs to all Americans.”

Since Heller did not address the question at issue in Range’s case, Judge Hardiman says in the 3rd Circuit opinion, its reference to “law-abiding, responsible citizens” is not binding. Nor is it clear what that phrase means. “Does it exclude those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine?” Hardiman asks. “No. We are confident that the Supreme Court’s references to ‘law-abiding, responsible citizens’ do not mean that every American who gets a traffic ticket is no longer among ‘the people’ protected by the Second Amendment.”

What about more serious offenses, such as felonies? The problem with that reading, Hardiman says, is that it empowers the government to strip individuals of their constitutional rights based on how legislators decide to classify an offense. “At root, the Government’s claim that only ‘law-abiding, responsible citizens’ are protected by the Second Amendment devolves authority to legislators to decide whom to exclude from ‘the people,'” he writes. “We reject that approach because such ‘extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.'”

After concluding that the Second Amendment presumptively applies to Range, Hardiman asks whether prohibiting him from owning a gun is nevertheless supported by longstanding historical precedent. He concludes that the government, which under Bruen had the burden of making that case, failed to do so.

“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” the Supreme Court said in Heller. But Hardiman notes that federal laws restricting gun rights based on criminal convictions are of relatively recent vintage, and the earliest version, the Federal Firearms Act of 1938, “applied only to violent criminals.” In 1961, Congress expanded the ban to cover nonviolent crimes punishable by more than a year in prison. “We are confident that a law passed in 1961—some 170 years after the Second Amendment’s ratification and nearly a century after the Fourteenth Amendment’s ratification—falls well short of ‘longstanding’ for purposes of demarcating the scope of a constitutional right,” Hardiman says.

Reaching further back, the government cited laws that it said showed “legislatures
traditionally used status-based restrictions” to disarm people. Hardiman notes that “restrictions based on race and religion now would be unconstitutional under the
First and Fourteenth Amendments.” In any case, he says, the fact that “Founding-era governments disarmed groups they distrusted,” including “Loyalists, Native Americans, Quakers, Catholics, and Blacks,” does “nothing to prove that Range is part of a similar group today.”

The government also noted that “founding-era felons were exposed to far more severe consequences than disarmament,” including the death penalty. But the fact that “Founding-era governments punished some nonviolent crimes with death does not suggest that the particular (and distinct) punishment at issue—lifetime disarmament—is rooted in our Nation’s history and tradition,” Hardiman writes. “The greater does not necessarily include the lesser: founding-era governments’ execution of some individuals convicted of certain offenses does not mean the State, then or now, could constitutionally strip a felon of his right to possess arms if he was not executed.”

Unlike the situation under current federal law, Hardiman notes, a felon who was not executed could recover his right to arms “after successfully completing his sentence and reintegrating into society.” Similarly, “Founding-era laws often prescribed the forfeiture of the weapon used to commit a firearms-related offense without affecting the perpetrator’s right to keep and bear arms generally.” Again, that is different from the lifetime ban imposed on Range, who did not commit a crime involving a gun. In short, Hardiman says, “the Government’s attempt to disarm Range is not ‘relevantly similar’ to earlier statutes allowing for execution and forfeiture.”

In a concurring opinion, Judge David J. Porter argues that Section 922(g)(1) represents the exercise of a power that Congress was never granted. “Until well into the twentieth century, it was settled that Congress lacked the power to abridge anyone’s right to keep and bear arms,” he writes. “Even without the Second Amendment, the combination of enumerated powers and the Ninth and Tenth Amendments ensured that Congress could not permanently disarm anyone.”

Judge Thomas L. Ambro also wrote a concurring opinion, joined by Judges Joseph A. Greenaway and Tamika Montgomery-Reeves. They emphasize that “the Government’s failure to carry its burden in this case does not spell doom for §922(g)(1).” That provision “remains ‘presumptively lawful,'” they say, because “it fits within our Nation’s history and tradition of disarming those persons who legislatures believed would, if armed, pose a threat to the orderly functioning of society.”

Since “Range does not conceivably pose such a threat,” Ambro writes, the majority is correct to reject Section 922(g)(1) as applied to him. But the decision “speaks only to his situation, and not to those of murderers, thieves, sex offenders, domestic abusers, and the like.”

By contrast, dissenting Judge Patty Shwartz, joined by Judge L. Felipe Restrepo, worries that the majority’s “analytical framework” implies that “most, if not all, felon bans” are unconstitutional. Since “the Supreme Court has made clear that such bans are presumptively lawful,” that is a bridge too far for Shwartz and Restrepo. In a separate dissent, Judge Cheryl Ann Krause argues that Section 922(g)(1) “comports with traditional principles that have guided centuries of legislative judgments as to who can possess firearms.”

Although the 3rd Circuit’s decision is limited to that provision’s application in this particular case, Shwartz and Restrepo probably are right to worry about the implications of demanding “relevantly similar” historical precedents, as Bruen requires. Even before that decision, Supreme Court Justice Amy Coney Barrett, in a 2019 dissent as a judge on the U.S. Court of Appeals for the 7th Circuit, questioned the historical pedigree of the “wildly overinclusive” category that included Range.

In that dissent, which Hardiman cites in Range, Barrett was quoting UCLA law professor Adam Winkler. But she endorsed his view, concluding that a mail fraud conviction could not justify lifelong disarmament. History “demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” she wrote. “But that power extends only to people who are dangerous.”

In 2020, 3rd Circuit Judge Stephanos Bibas echoed Barrett’s position, dissenting from a panel decision that upheld Section 922(g)(1) on the grounds that Second Amendment rights are limited to “virtuous” citizens. That case involved a woman who was sentenced to three years of probation for lying on her tax returns. Bibas argued that “the historical touchstone” for disarming felons is “danger, not virtue.” Bibas joined Hardiman’s majority opinion in Range, which quotes his warning about the hazards of granting legislators “unreviewable power to manipulate the Second Amendment by choosing a label.”

Patrick Wyrick, a judge on the U.S. District Court for the Western District of Oklahoma, expressed a similar concern this year, when he concluded that the federal ban on gun possession by cannabis consumers is unconstitutional. “A legislature could circumvent the Second Amendment by deeming every crime, no matter how minor, a felony, so as to deprive as many of its citizens of their right to possess a firearm as possible,” he wrote. “Imagine a world where the State of New York, to end-run the adverse judgment it received in Bruen, could make mowing one’s lawn a felony so that it could then strip all its newly deemed ‘felons’ of their right to possess a firearm.”

Wyrick posed that very hypothetical to the government’s lawyers. “Remarkably,” he said, “when presented with this lawn-mowing hypothetical argument, and asked if such an approach would be consistent with the Second Amendment, the United States said ‘yes.’ So, in the federal government’s view, a state or the federal government could deem anything at all a felony and then strip those convicted of that felony—no matter how innocuous the conduct—of their fundamental right to possess a firearm.”

Ambro wants to make it clear that the Second Amendment allows Congress to disarm “murderers, thieves, sex offenders, domestic abusers, and the like.” But as Congress saw it, “the like” included Range and many other nonviolent offenders who have never done anything to indicate that their possession of firearms would be a menace to public safety. Post-Bruen, the unavoidable question is the extent to which legislators can be trusted to make such judgments.

The post Disarming a Man Based on a Nonviolent Misdemeanor Was Unconstitutional, the 3rd Circuit Rules appeared first on Reason.com.

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Today’s guest is the Gutfeld! show and Fox News contributor Kat Timpf, whose new book, You Can’t Joke About That: Why Everything Is Funny, Nothing Is Sacred, and We’re All In This Together, is a massive bestseller. It’s also a full-throated defense of free speech and a compelling argument for humor as the best possible coping mechanism.

I talk with Kat about her life as a standup comedian, her past work at National Review and Barstool Sports, how she deals with sexism, what it’s like to be an unapologetic libertarian at Fox News, and how her mother’s untimely, tragic death convinced her that humor can be a powerful tool to bring a fragmented country together.

This episode was taped live in New York City at the Reason Speakeasy, a monthly, unscripted conversation with defenders of free speech and heterodox thinking. Get information about upcoming events by signing up for Reason‘s NYC Events newsletter.

Today’s sponsors:

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• The Reason Speakeasy. The Reason Speakeasy is a monthly, unscripted conversation in New York City with outspoken defenders of free thinking and heterodoxy. On Monday, June 26, Nick Gillespie talks with Tara Isabella Burton, author of Self-Made: Creating Our Identities From Da Vinci to the Kardashians. Tickets are $10—which includes beer, wine, soda, food, and plenty of time to talk about politics, culture, and ideas in one of the coolest settings in midtown Manhattan. For details, go here.

The post Kat Timpf: Make America Funny Again! appeared first on Reason.com.

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From Doe v. Netflix, Inc., decided yesterday by Chief Judge Tanya Walton Pratt (S.D. Ind.):

Individuals hoping to one day have children, but who for whatever reasons could not naturally conceive them, entrusted fertility specialist Dr. Donald Cline with that task.. Unbeknown to anyone, Dr. Cline inseminated many of his female patients with his own semen, ultimately, fathering approximately ninety-four (94) children (the “Secret Children”). Dr. Cline’s secret was not discovered until 2015 after some took at-home DNA tests through an online testing service. It was not until 2019 that the Plaintiffs made the same discovery after submitting their DNA samples to another online testing service. The Plaintiffs held this information in close confidence. Only, “[c]ertain of Plaintiff’s biological half siblings were able to see [their] identit[ies] through the DNA website[s]. This information was kept secured to a limited number of persons, namely, certain of the biological half siblings, through passwords and other means.”…

Some of the Secret Children were rightly eager for answers and wanted to expose Dr. Cline’s fraud. They reported him to local news outlets, government agencies, and the like. Local news outlets investigated and reported on the story. Thereafter, national news outlets reported on Dr. Cline’s fertility fraud. This created a media frenzy surrounding Dr. Cline’s conduct. In 2020, the Defendants contacted some of the Secret Children, including Jacoba Ballard (“Ballard”). Defendants offered them “the opportunity to discuss being on camera for [a] documentary and to submit photos.”

However, some of the Secret Children, including the Plaintiffs, expressed concerns with being included in the documentary. The “Defendants made clear to the [ ] Secret Children that no Secret Child would be identified in the documentary without his or her explicit consent.” In April 2021, the Defendants sent a written statement to Doe and Roe, which read in part: “I know that some of you were more comfortable than others being involved…. You will not be identified (unless you’ve already given us explicit permission to do so….” (the ‘Non-Identification Pledge’).”

The three Plaintiffs communicated to Defendants that they did not have their permission to disclose their names in the documentary.

Approximately a year later, in April 2022, the Defendants shared a trailer of the documentary to millions on their social media accounts. The social media posts embedded links to segments of the documentary. The Plaintiffs’ names were displayed, and they were identified as Secret Children. In May 2022, millions of people, including at least 250,000 Indiana residents were able to view “Our Father” on Netflix’s streaming platform. The documentary depicts Ballard uncovering the truth of her biological parentage, the identities of her previously unknown siblings, the extent of Dr. Cline’s fertility fraud, and Dr. Cline’s subsequent conviction. At one point during “Our Father”, Ballard is seen reviewing her DNA results and scrolling through the names of her half-siblings. It is at this moment that the Plaintiffs’ names appear on the screen: “Coe’s name appeared on screen for less than 1 second … and Doe’s and Roe’s names appeared on screen for approximately 9 seconds….”…

The Plaintiffs were astonished that the Defendants broke its pledge and even more perplexed because the Defendants blurred the “names and photographs of numerous Secret Children in the documentary.” Plaintiffs were offended by the false and misleading written statement—The Non-Identification Pledge—communicated to them by Defendants and disclosure of their names in Our Father.

Plaintiff sued for, among other things, disclosure of private facts, and the court held that this claim could go forward:

In 2022, the Indiana Supreme Court, in McKenzie, dispelled over two decades of judicial uncertainty and confirmed the “viability of a tort claim for invasion of privacy based on public disclosure of private facts.” A defendant violates this privacy law when they disclose information: (1) that is private in nature; (2) to the public; (3) that would be highly offensive to a reasonable person; and (4) that is not of legitimate public concern. Here, the Defendants do not contest that the disclosure was made to the public nor that the disclosure would not be highly offensive to a reasonable person. They do however argue that Plaintiffs’ privacy claim fails because the disclosed information was not private in nature and was of legitimate public concern.

{The rule stated in this section gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable man. “The protection afforded to the plaintiff’s interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.” While courts may inquire into the accepted customs and the social mores of the Plaintiffs’ community, courts tend to defer to the jury, as factfinder, to make the final determination.}

The Court disagrees with the Defendants on both points and finds that Plaintiffs have alleged a viable disclosure of private facts claim against the Defendants.

[1.] The Private Fact Element

Defendants argue the Plaintiffs’ identities were not privately held because it was voluntarily shared on the online testing services’ websites with complete strangers, i.e., namely the other Secret Children[.] Plaintiffs argue their identities were privately held because it was shared with a select and authorized group of people….

[T]he right of privacy may be waived on behalf of one class [of people] and retained as against another class. [For instance,] the fact [a plaintiff] disclosed his AIDS diagnosis to “his family, friends, and support group did not, as a matter of law, means he waived his privacy right to permit public disclosure to all classes of individuals.” (noting that this number is relatively small in relation to the television viewing public in the Macon area.”)….

Plaintiffs allege their identities were “kept secured to a limited number of persons, namely, certain of the biological half siblings, through passwords and other means.” Although the other Secret Children had access to Plaintiffs’ identities and the 23andMe Privacy Policy advised Plaintiffs that “third parties may use your Personal Information differently than we do under,” the Plaintiffs must enjoy the right to define the boundaries of their private lives…. Plaintiffs’ identities were disclosed to a specific group of people, namely individuals sharing Plaintiffs’ ancestry…. Plaintiffs’ identities and status as Secret Children were known to a relatively small group of people. The Court is satisfied that the disclosure in question was made to a specific and authorized audience, namely the other Secret Children….

[2.] The Newsworthiness Element…

The First Amendment affords a privilege which protects disclosure of private facts that are “newsworthy,” that is, of legitimate concern to the public…. “Once a matter is found to be within the sphere of public interest, otherwise private facts about a person may also be considered of legitimate public interest if those particular facts are sufficiently related to the matter that is of legitimate public concern.” This applies “even when the information relates to a person who has neither sought nor consented to the publicity, but nevertheless has become a person about whom there is public interest because of his or her involvement in an occurrence or event that is of legitimate public concern.” Generally, the disclosed information must be closely related to a matter that was “newsworthy” at the time of the disclosure. If the appropriate nexus exists between the information and an already newsworthy story, “the fact is also of legitimate public interest, no matter how sensitive or how private.” … “[W]hen determining what is a matter of legitimate public concern, “account must be taken of the customs and conventions of the community.” Ultimately, the proper inquiry is whether “a reasonable member of the public…would say that he had no concern” with the information disclosed.”

Here, it is plausible that disclosing Plaintiffs’ identities was not closely related to Dr. Cline’s fertility fraud. Arguably, the Plaintiffs were asked to reveal their identities in Our Father because the underlying story about Dr. Cline’s widespread fertility fraud was newsworthy. The newsworthy story was the general topic of fertility fraud. The Plaintiffs’ identities were not, however, substantially relevant and directly related to the newsworthy story, nor a matter of public record, but, instead, were purely private matters. Arguably, the only substantially relevant and directly related information was the extent of Dr. Cline’s fertility fraud, i.e., specifically, how many women were unknowingly inseminated with Dr. Cline’s semen and the resulting number of Secret Children he fathered. While Plaintiffs’ status as Secret Children may have been closely related to the general topic of fertility fraud, their names were not….

None of the cases relied upon by the Defendants have precedential value and, in any event, they are all distinguishable. See Anonsen v. Donahue (Tex. Ct. App. 1993); Bonome v. Kaysen (Mass. Super. Ct. 2004). In Anonsen, the defendant indirectly revealed the identities of her husband and daughter when discussing pregnancies resulting from incest or rape, while in Bonome the defendant indirectly revealed the identity of her boyfriend when discussing her troubles with vaginal pain and its effects on her relationship in her memoir. Plaintiffs allege the Defendants disclosed a private fact to the public at large which has caused them humiliation and embarrassment, and the disclosure was not of legitimate public concern. While the Court recognizes that an individual is free to share their personal story and history, it must not be at someone else’s expense, especially when the disclosed information is not of legitimate public concern.

This disclosure tort serves as a valuable source of deterrence and accountability for our ever-increasing population and the growing technological opportunities for invasion into others’ lives, the compilation of private data, and the disclosure of purely personal matters. Having weighed the parties’ interests, Plaintiffs’ claims are not barred by … the First Amendment …. Viewing the allegations in Plaintiffs’ Complaints in the light most favorable to the Plaintiffs, their claim for disclosure of private facts is plausible on its face….

 

The post Privacy Lawsuit Over Netflix's <i>Our Father</i> Fertility Fraud Can Go Forward appeared first on Reason.com.

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