August 2023 – Page 46

California Public Records Requester Can File Anti-SLAPP Motion Objecting to Attempt to Block Request

From today’s California Court of Appeal opinion in Iloh v. Regents of U.C., decided by Justice Thomas Goethals, joined by Justices Maurice Sanchez & Joanne Motoike; this case is important because it lets anti-SLAPP motions be brought not just by defendants who are being directly sued (here, that’s the UC) but also by the “real parties in interest” whose public records request triggered the lawsuit:

The Center for Scientific Integrity (CSI) is an organization that reports on academic retractions and accountability. CSI wrote an article about Constance Iloh, a professor at the University of California, Irvine (UCI), after several academic journals retracted articles Iloh had written due to concerns about possible plagiarism or inaccurate citation references. In a follow-up to that article, CSI sent UCI a records request under the California Public Records Act (CPRA) …, requesting Iloh’s postpublication communications with the journals and UCI.

Iloh filed a petition for writ of mandate, declaratory relief, and injunctive relief against UCI to prevent disclosure of her communications, and later added CSI as a real party in interest. She then filed a motion for preliminary injunction to prevent disclosure. Meanwhile, CSI filed a motion to strike Iloh’s petition under the anti‑SLAPP (strategic lawsuit against public participation) statute.

Our first opinion in this case concerned Iloh’s motion for preliminary injunction. The trial court denied that motion on the grounds that Iloh had not established a likelihood of prevailing on the merits, and we affirmed that order.

We now consider CSI’s anti-SLAPP motion. The trial court denied the motion, finding that although protected activity may have led to the petition, it was not the “basis” for the petition. We disagree. In issuing the CPRA request, CSI was engaging in newsgathering so it could report on matters of public interest, such as how a public university funded largely by taxpayer dollars resolves quality or integrity problems in its professors’ publications. CSI was therefore engaged in protected activity when it issued the CPRA request.

Iloh filed her petition for writ of mandate to prevent UCI from complying with CSI’s CPRA request. By targeting and seeking to impede CSI’s newsgathering activity, Iloh’s petition threatens to chill CSI’s speech-related processes like newsgathering; if successful, this could inhibit CSI’s exercise of free speech. This is the type of lawsuit the anti-SLAPP statute is designed to address, and it should be stricken if Iloh cannot demonstrate a probability of prevailing on her petition.

The trial court has not yet performed prong two of the anti-SLAPP analysis, which involves determining whether Iloh has established a probability of prevailing on her claims. We decline to consider that question in the first instance. Instead, we reverse the order denying CSI’s anti-SLAPP motion under prong one of the anti-SLAPP statute and remand this matter with directions that the trial court consider prong two of the anti‑SLAPP statute….

[Factual back story, largely quoted from the earlier appellate opinion]

“Iloh has a Ph.D. in urban education policy. She was employed at [UCI] from 2015 to 2021, first as a postdoctoral fellow, and then as an assistant professor in UCI’s school of education….

“During her time as a UCI professor, Iloh published research articles on education in a variety of academic journals. At issue here are four [of those] articles published in journals unaffiliated with UCI: (1) Paving effective community college pathways by recognizing the Latino post‑traditional student (2018) in the Journal of Latinos and Education; (2) Not non‑traditional, the new normal: adult learners and the role of student affairs in supporting older college students (2017‑2018) in Colorado State University’s Journal of Student Affairs; (3) Toward a new model of college “choice” for a Twenty-First-Century context (2018) in the Harvard Educational Review; and (4) Does distance education go the distance for adult learners? Evidence from a qualitative study at an American community college (2018) in the Journal of Adult and Continuing Education.”

“After the articles were published, an anonymous source reportedly e‑mailed the four journals and demanded the articles be retracted. [A]ll four articles were [then] either retracted or corrected by the journals in which they were published: the Journal of Latinos and Education retracted Iloh’s article in full; the Journal of Student Affairs removed Iloh’s article and the entire issue in which it was published; the Harvard Educational Review issued an errata statement; and the Journal of Adult and Continuing Education issued a correction.” It seems the retractions were related to concerns about possible plagiarism or inaccurate citation references in Iloh’s articles.

“The retractions caught the attention of Retraction Watch, an editorially independent organization that maintains a database of article retractions in scientific journals, covers incidents of particular note, and reports on academic publishing, transparency, and accountability. Retraction Watch is published by [CSI], a nonprofit public benefit corporation whose mission is ‘to promote transparency and integrity in science and scientific publishing, and to disseminate best practices and increase efficiency in science.’

“In August 2020, Retraction Watch published an article about Iloh’s papers; the article reported the papers had been ‘retracted and corrected, for plagiarism and misuse of references.’ The following month, to further its investigation, Retraction Watch sent a CPRA records request to UCI seeking all correspondence from January 2019 onward (1) between UCI and Iloh regarding articles published in the four journals, and (2) between UCI or Iloh and the four journals regarding articles authored by Iloh.

“UCI notified Iloh of the CPRA request and its intent to disclose the responsive records. Iloh responded that the requested records fell outside the scope of the CPRA and argued the request violated her privacy rights. UCI agreed to remove a few records from its production, but maintained it would disclose the remaining records absent a court order.

“In April 2021, Iloh filed a verified petition against UCI and the Regents of the University of California (the Regents) for writ of mandate, declaratory relief, and injunctive relief to prevent disclosure.” Shortly thereafter, Iloh apparently left her position at UCI….

The Anti-SLAPP Statute

The Legislature enacted the anti-SLAPP statute in 1992 to address “what are commonly known as SLAPP suits (strategic lawsuits against public participation)—litigation of a harassing nature, brought to challenge the exercise of protected free speech rights.” The statute authorizes a special motion to strike meritless claims early in the litigation if the claims “aris[e] from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue ….” The statute is “‘intended to resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest.'”

When evaluating a special motion to strike, the trial court must engage in a two-step analysis. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity…. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” …

Applicability to Real Parties in Interest

As a threshold matter, we must address whether CSI, as a real party in interest, may pursue anti-SLAPP relief. Iloh argues an anti-SLAPP motion is not available to CSI because it is not a named defendant, and because Iloh’s petition for writ of mandate does not assert any claims against it.

We disagree. A real party in interest may bring an anti-SLAPP motion if it has a direct interest in the subject of the mandamus proceeding and will be impacted by the litigation’s outcome.

In this case, Iloh’s petition for writ of mandate against the Regents seeks “to prevent the disclosure of” Iloh’s correspondences to CSI and block the Regents from complying with CSI’s CPRA request. Because CSI’s ability to access the requested documents under the CPRA is the focus of this lawsuit, CSI has a direct interest in the proceedings and may seek anti-SLAPP relief….

Protected Activity

That brings us to prong one of the anti-SLAPP analysis. In this step, we must decide whether CSI made a threshold showing that Iloh’s claims arise from an act in furtherance of CSI’s right of petition or free speech in connection with a public issue. That is, did CSI establish the complaint arises from protected activity?

As is relevant here, the anti-SLAPP statute defines protected activity to include “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest,” and “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” “[T]he ‘in furtherance’ requirement of section 425.16, subdivision (e)(4), may be satisfied by conduct preliminary to a completed exercise of the right of free speech.”

It is well established that reporting the news involves protected activity…. Because newsgathering is part and parcel of that protected activity, newsgathering likewise constitutes protected activity.

The CPRA request at the center of this lawsuit was issued as part of CSI’s newsgathering efforts and in furtherance of its reporting on the four article retractions. As noted, CSI is a nonprofit public benefit corporation that promotes transparency and integrity in scientific publishing; through Retraction Watch it reports on academic article retractions and accountability. After four different academic journals retracted Iloh’s articles, Retraction Watch published an article on those retractions. A month later, to further its investigation of Iloh’s articles, Retraction Watch sent the CPRA records request to UCI seeking certain postpublication communications between Iloh, UCI, and the journals. Because CSI issued the CPRA records request as part of its newsgathering efforts, the records request qualifies as protected activity.

Further, the documents sought in the CPRA records request concerned “an issue of public interest.” As we noted in our previous opinion, “There is a strong public interest in knowing how a public university funded largely by taxpayer dollars handles and resolves quality or integrity problems in its professors’ publications” because “(1) public funds are used both to pay UCI assistant professors like Iloh and also to investigate alleged academic dishonesty, (2) academic research culminating in publication is central to UCI’s public function and within Iloh’s job duties, and (3) the public has an interest in understanding how UCI addresses allegations of academic dishonesty.” …

To qualify for anti-SLAPP protection, the moving party must also demonstrate that the challenged claims “aris[e] from” protected activity…. “[T]he claim must be based on the protected petitioning activity.” In evaluating whether that requirement is met, courts consider “the principal thrust or gravamen of a plaintiff’s cause of action” ….

The trial court concluded the required nexus was lacking here, and for that reason denied CSI’s motion. We disagree. The entire purpose of Iloh’s petition is to prevent the disclosure of records in response to CSI’s CPRA request. The propriety of the CPRA request is the very crux of the petition; without the CPRA request, there would be no petition. Indeed, the opening paragraphs of Iloh’s verified amended petition repeatedly aver that the petition seeks “to prevent the disclosure of any records” under the CPRA. The petition therefore “aris[es] from” the CPRA records request.

Iloh insists her petition does not arise from protected activity because it is not predicated on wrongful disclosure and does not seek any damages from CSI. We are not persuaded. The fact that the petition seeks to enjoin future conduct does not render the anti-SLAPP statute inapplicable. We see “no reason why newsgathering activity and other actions contributing to a broadcast report should be less deserving of anti-SLAPP protection than the broadcast report itself. Indeed, a lawsuit targeting newsgathering activity threatens to chill participation in speech-related processes and, if successful, may block the exercise of free speech.”

Iloh alternatively argues that striking her petition under the anti-SLAPP statute would lead to an “absurdity” because her petition is a “reverse-CPRA action” that is explicitly authorized by case law…. [A]n interested third party who desires to prevent a public agency from disclosing records under the CPRA may bring an independent action for declaratory relief or traditional mandamus …. [But o]ur holding does not mean that a third party may never file a reverse-CPRA action to prevent a public agency from disclosing records; it means only that such an action may be stricken under the anti‑SLAPP statute if the petitioner cannot establish a likelihood of prevailing under prong two of the anti‑SLAPP analysis.

Kelly Aviles and Shaila Nathu represent CSI.

The post California Public Records Requester Can File Anti-SLAPP Motion Objecting to Attempt to Block Request appeared first on Reason.com.

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TikTok Woos Republicans With Debate Commercials

TikTok ads | TikTok; Illustration: Lex Villena

Over the past several years, calls to restrict or outright ban TikTok have become increasingly popular among politicians. Attacks on the Chinese-owned app have primarily focused on its alleged threat to national security, but politicians and activists have also sought to restrict access to the platform by arguing it endangers children’s mental health.

Despite TikTok’s harshest critics coming from both sides of the aisle, Republican states have been much more likely to actually engage in direct action against the app. So far, Montana has attempted to ban the app completely, while more than 30 states—most of which are Republican-led—have banned the app on devices owned by government employees.

Republicans are also more likely to support penalties against TikTok. According to a recent Reuters survey, 58 percent of Republicans support banning the app, while only 47 percent of Democrats agree. And of the eight Republican presidential candidates who participated in Wednesday’s debate, at least six have voiced support for a national ban or have banned it somewhat in their own state.

That’s why it may have come as a surprise for many viewers of this week’s GOP debate to see several ads for the app playing during commercial breaks.

The ads, which focused on individual users, were clearly tailored to pluck on Republican heartstrings. For example, in one ad, an elderly Navy veteran talks about using the app to crowdfund for a new mobility scooter. In another, folksy banjo music plays over footage of the four-wheeler-riding owner of a soap-making small business discussing how TikTok expanded her reach.

The ads are part of a larger campaign called TikTok Sparks Good, which includes ads highlighting a range of family-friendly accounts—from an Australian pottery artist to a teacher using the platform to teach toddlers how to read.

While it’s unclear whether the ad campaign will help rehabilitate the app’s image among Republicans, it highlights a simple truth about social media that many of its detractors ignore. Without social media, the numerous small businesses featured in TikTok Sparks Good ads really wouldn’t have been able to expand their product’s reach to an international audience. Without social media, a military veteran wouldn’t have had adoring fans who jumped to buy him—and now more veterans—new mobility aid.

Despite claims that social media apps are essentially a force for evil—supposedly drawing teenagers into a spiral of depression and spreading nasty “misinformation“—they have clear upsides. Apps like TikTok can connect people in ways that would never have been possible without social media.

The post TikTok Woos Republicans With Debate Commercials appeared first on Reason.com.

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Court Rejects Lawsuit Claiming Police Discriminatorily Refused to Prosecute Rapist

From Judge William S. Stickman IV’s opinion in Doe v. Northern Regional Police Dep’t of Allegheny County (W.D. Pa.):

Plaintiff Jane Doe … [sued] to address purported violations of her constitutional rights arising from an incident with a male student, A.M., during the school day at Pine-Richland High School. She contends that due to the “shoddy, unprofessional, and inadequate investigation” undertaken by Defendants, A.M. was never prosecuted….

During the school day of January 7, 2019, Plaintiff, a “Latinx female,” who was born in Guatemala and identifies as “Mayan/Native (Central) American,” and “is of Hispanic origin,” contends that she was “secluded” “in a school restroom where, ignoring her pleas to stop and physical resistance, [A.M.] restrained her, vaginally raped her with his penis, finger and tongue, forced her to perform oral sex, and attempted to anally rape her.” She reported the incident to Pine-Richland High School personnel, law enforcement, and medical personnel that day.

{Before her parents arrived, Plaintiff began to provide school officials with a handwritten statement. When her parents arrived, she was directed to stop writing. Therefore, Plaintiffs statement was “unfinished” and “incomplete.” According to Plaintiff, it “did not include the multiple additional forced penetration offenses that occurred, the multiple acts of indecent assault and sexual assault that occurred, or [her] attempts to escape.” Her statement, which only described two of the five acts of forcible penetration committed against her, was given to Detective Rick by school personnel.} {That evening, Plaintiff gave a statement to medical personnel at the hospital. Three months later, she gave another statement in connection with a Sexual Violence Protection Order she obtained against A.M.} As to her report to law enforcement, Plaintiff gave a videorecorded statement to Detective Rick, a white male, at the Northern Regional Police Department in the presence of her mother.

On March 7, 2019, Detective Rick notified Plaintiffs mother that the Allegheny County District Attorney’s Office decided not to prosecute A.M. During a telephone meeting with the prosecutor the next day, Plaintiff “told [the prosecutor] about the many offenses A.M. had committed,” and the prosecutor “chastised [Plaintiff], stating ‘you are changing your story!”‘ Plaintiff faults Detective Rick for conducting an “incomplete and inadequate investigation.” She alleges that Detective Rick “committed multiple deliberate, premeditated acts to prevent the Allegheny County District Attorney from reviewing [her] complete statement, and instead provided substantially altered versions of her statement that he knew did not represent true, complete narrative […].” She takes issue with her “unfinished” and “incomplete” January 7, 2019 handwritten statement that was provided to school personnel becoming “an essential part of the criminal investigation materials presented to the Allegheny County District Attorney’s office.”

She faults Detective Rick for conveying to the prosecutor that she had a boyfriend at the time of the assault with “the implication being that [Plaintiff] would make a false claim of rape to explain an event of consensual sex with someone other than her boyfriend.” She also faults Detective Rick for never having her January 7, 2019 interview transcribed and giving a transcript to the prosecutor. Furthermore, Plaintiff contends that Detective Rick failed to provide accurate information to the prosecutor, and that in his Incident Report he altered and/or omitted portions of her statement. {Plaintiff asserts that Detective Rick omitted from the narrative elements the elements of forcible compulsion, her attempts to escape, and that anal penetration was attempted. She contends that Detective Rick failed to characterize the violent nature of the incident and to note the difference in size, strength, and power between her and A.M. Additionally, she maintains that Detective Rick “mischaracterized” her family’s refusal to surrender her cellphone.} According to Plaintiff, Detective Rick deliberately misidentified her as “Caucasian/Non-Hispanic,” in his Incident Report.

Plaintiff asserts that Detective Rick’s conduct weakened a case for prosecuting A.M., cast the encounter between her and A.M. as consensual, and created a credibility bias towards her. She posits that Detective Rick’s “actions were motivated in part by his desire to protect the reputation” of the Pine-Richland School District as well as the reputation of A.M., who was a member of the high school football team.

As to the Northern Regional Police Department of Allegheny County, Plaintiff contends that it had a long-standing custom and policy of granting discretion to detectives conducting investigations of potential sex crimes. She further contends that it abdicated its responsibility to train, monitor and supervise detectives to ensure that their actions did not violate the rights of sex crime victims, comported with “best practices” free from bias, were free from prejudice (or favor for a potential defendant), and that decisions to recommend prosecution were based on evidence and free from outside influence….

The court concluded, however, that plaintiff’s allegations, even if factually correct, wouldn’t be legally actionable. First, as to the Equal Protection Clause:

Plaintiff claims that Detective Rick’s alleged racial bias against her clouded his investigation. There is a distinction between the right to force the prosecution of a case and the right of access to judicial procedures, like a criminal investigation, to redress an alleged wrong. It is certainly true that police officers cannot discriminate on the basis of an alleged victim’s race. The “selective withdrawal of police protection, as when the Southern states during the Reconstruction era refused to give police protection to their black citizens, is the prototypical denial of equal protection.” Thus, a claim that police services were administered in a discriminatory manner and denied a victim protection is a viable equal protection claim.

However, Plaintiff has failed to plead a plausible basis for a claim of alleged discriminatory failure to adequately investigate her complaint against A.M. based on her ethnicity or race. She had to set forth a plausible case-specific account of intentional discrimination but merely pled the elements of an equal protection claim clothed in threadbare allegations of supporting fact[:]

Detective Rick deliberately misidentified Ms. Doe as “Caucasian/Non-Hispanic” because people of color are known to be more at risk for rape and it might reflect negatively on him if such an accusation were not followed up with criminal charges, which itself might invite a review to determine if a more thorough investigation should have been done. Ms. Doe was born in Guatemala; her race is Mayan/Native (Central) American and she is of Hispanic origin. Detective Rick never asked Ms. Doe’s parents about her race or ethnicity, but from her appearance alone, with her dark skin and features, Ms. Doe clearly is not Caucasian. This apparent error could not have been the result of negligence or incompetence, particularly considering that Detective Rick clearly identified JROTC instructor Michael Gasparetto as “Hispanic” in his Incident Report and clearly identified the race and ethnicity of most other individuals mentioned in the report. Bias against Ms. Doe’s ethnicity or race appears to be the only motive for Detective Rick’s decision….

Defendants intentionally treated Ms. Doe differently from other victims of rape and sexual assault with respect to the investigation of the crimes committed against her, and there was no rational basis for the difference in treatment…. Defendants intentionally and irrationally singled Ms. Doe out for dissimilar treatment…. Defendants’ official acts in connection with the investigation of the rape and sexual assault committed against Ms. Doe were motivated by improper considerations and an illegitimate animus toward Ms. Doe…. Defendants deliberately sought to deprive Ms. Doe of the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution for reasons of a personal nature unrelated to their official duties…. There was no rational basis for the manner in which defendants investigated Ms. Doe’s rape and sexual assault, and the decisions they made during the course of the investigation…. Defendants’ selective adverse treatment of Ms. Doe was based on her race and other arbitrary factors…. During the investigation, defendants selected particular courses of action in part because of their adverse effects, specifically, that A.M. would not be prosecuted and that Ms. Doe would suffer the emotional distress and related damages alleged above….

All Plaintiff pled are vague and speculative “facts,” and legal conclusions as to discrimination. It is not enough to merely plead accusations. A certain degree of factual specificity is required to support Plaintiffs claims. Plaintiff must plead enough details about the subject matter of her case to present a story that holds together and that supports her accusations with a basis in plausible, articulable facts.

Proof of discriminatory intent or purpose is required to demonstrate an ethnicity or race based violation of the equal protection clause. Thus, Plaintiff had to demonstrate discriminatory intent in her Amended Complaint but it is bereft of facts regarding exactly how Plaintiff was targeted or intentionally treated differently during the police investigation than other sexual assault victims on account of her ethnicity or race. She has identified no comparative cases and has failed to come forth with any specific facts as to how the alleged inadequacies in the investigation were based on her ethnicity or race. There is no indication that Defendants ever stated that they would not adequately investigate Plaintiffs allegations because they thought she was undeserving of equal law enforcement protection due to her ethnicity or race. No facts set forth in the Amended Complaint raise an inference that Defendants’ investigatory decisions were motivated by discriminatory animus.

Law enforcement decisions are highly discretionary and oftentimes require an officer to assess multiple variables…. “[I]t is no proper to challenge what in its nature is a subjective, individualized decision that it was subjective and individualized.” Plaintiff[‘]s equal protection claim amounts to nothing more than a generic claim that Detective Rick’s investigation was inadequate and, therefore, it must have been motivated by some unalleged personal animus toward her “ethnicity or race.” Plaintiff does not have to prove her case in her complaint, but she cannot baldly plead that Detective Rick’s allegedly faulty investigation was based on ethnicity or race and offer no concrete basis—beyond her own race—to reach that conclusion….

The court likewise rejected plaintiff’s due process claim:

The due process clause is primarily concerned with preventing government from abusing its power or employing it as an instrument of oppression. It is not generally used to impose affirmative obligations on government actors to provide aid to citizens or to provide citizens with a constitutionally guaranteed right to receive these services. Because the due process clause does not guarantee a right to government aid, it does not generally provide a cause of action when that aid is rendered inadequately. While government officials may be legally required to investigate and prosecute crimes, the duty is performed for the benefit of the public generally and is not owed to any one member of the public individually.

Here, it is unclear what government action Plaintiff is alleging shocks the conscience to the point of being an actionable substantive due process claim. All she has pled is that: “Defendants’ actions were an egregious, outrageous, and arbitrary assertion of government authority that shocked the conscience and violated Ms. Doe’s right to substantive due process.” She contends in response to Defendants’ motion “that defendants’ actions in conducting a rape and sexual assault investigation based on bias and prejudice ‘shock the conscience,’ regardless of whether a rape and sexual assault investigation free from bias and prejudice would or would not have resulted in prosecution of A.M.” Plaintiff[‘]s conclusory assertions are devoid of any factual development and she fails to identify the basis for a substantive due process claim.

As noted in the previous section, Plaintiff has come forth with no specific facts as to Defendants’ “bias and prejudice.” Without such facts, her allegations of negligence as to the police investigation—e.g., failing to follow up on additional leads, improperly identifying Plaintiff as “Caucasian/Non-Hispanic” on the Incident Report, not having Plaintiffs videorecorded interview transcribed—do not violate due process. There is simply no constitutional right to have an investigation by police conducted as one wishes.

Courts have repeatedly recognized that inadequate investigation is not sufficient to state a civil rights claim unless there is some other recognized constitutional right involved. Plaintiff has merely recast her equal protection claim as a substantive due process claim, which the Court will not countenance….

Here, by the way, is the core of my motion to unseal, which the court granted after the parties declined to oppose it:

There is a general right of access to court records

“[A] common law right of access attaches to judicial proceedings and records.” In re Avandia Marketing, Sales Practices & Prods. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (cleaned up).

The right of access “promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court.” Public observation facilitated by the right of access “diminishes possibilities for injustice, incompetence, perjury, and fraud.” Moreover, “the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.”

Id. at 672 (cleaned up).

Whether the common law right of access applies to a particular document or record turns on whether that item is considered to be a judicial record. A judicial record is a document that has been filed with the court or otherwise somehow incorporated or integrated into a district court’s adjudicatory proceedings. Once a document becomes a judicial record, a presumption of access attaches.

Id. (cleaned up).

A court order “is a quintessential judicial record.” In re Application of Forbes Media LLC, No. 21-mc-52, 2022 WL 17369017, *4 (W.D. Pa. Dec. 2, 2022) (Hornak, J.).

As the D.C. Circuit explained, “[t]here is no doubt that … court orders themselves are judicial records,” because “[c]ourt decisions are the ‘quintessential business of the public’s institutions’ ” and “the issuance of public opinions is core to the transparency of the court’s decisionmaking process.” Leopold v. United States, 964 F.3d 1121, 1128 (D.C. Cir. 2020) …; see also Hardy v. Equitable Life Assurance Soc’y, 697 F. App’x 723, 725 (2d Cir. 2017) (“There is a long tradition of public access to court orders … they are judicial documents.”) (citations omitted); Bank of Am., 800 F.2d at 344 (“[T]he court’s approval of a settlement or action on a motion are matters which the public has a right to know about and evaluate.”); Lipocine, 2020 WL 4569473, at *3 (collecting cases and explaining that “the courts have made clear that the interest in ensuring that judicial records remain open to the public applies with special force to judicial opinions”).

Id. “[I]t should go without saying that the judge’s opinions and orders belong in the public domain.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). “We hope never to encounter another sealed opinion.” Hicklin Engineering, LC v. Bartell, 439 F.3d 346, 349 (7th Cir. 2006).

This is true even for ordinary civil disputes. “It is desirable that the trial of [civil] causes should take place under the public eye,” “not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1069 (3d Cir. 1984) (quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.)). And that is even more true when the controversy is between a citizen and an important government-run institution.

In addition to this common-law right of access, “the public and the press have a First Amendment right of access to civil trials.” In re Avandia Marketing, 924 F.3d at 673. “The First Amendment right of access requires a much higher showing than the common law right of access before a judicial proceeding can be sealed. Any restriction on the right of public access is evaluated under strict scrutiny.” Id. (cleaned up).

The Third Circuit has not yet decided whether this First Amendment right of access also extends (as the common-law right of access does) to pretrial filings, id. at 679-80. But for reasons given in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006), and Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988), this Court should conclude that the First Amendment right of access applies to such filings, or at least to this Court’s opinions (unless such a conclusion is rendered moot by this Court’s concluding that the common-law right of access justifies unsealing the Sealed Memorandum Opinion in any event).

Even if some materials in the Sealed Memorandum Opinion must remain confidential, that should be accomplished through redaction rather than sealing

Because the Sealed Memorandum Opinion is entirely sealed, and appears not to be accompanied by a statement explaining why it is sealed, it is hard for movant to argue about whether the presumption of access has been rebutted.

Nonetheless, it seems unlikely that all aspects of this Court’s legal reasoning, and all the potentially relevant facts on which the court relied, must be kept secret. Instead, any sufficiently strong interests (for instance, in the confidentiality of the minor plaintiff’s identity) could likely be served through modest redactions rather than outright sealing. “Even in cases involving substantial countervailing privacy interests such as state secrets, trade secrets, and attorney-client privilege, courts have opted for redacting instead of sealing the order or opinion.” Mitze v. Saul, 968 F.3d 689, 692 (7th Cir. 2020). See, e.g., Fair Laboratory Pracs. Assocs. v. Riedel, 666 F. App’x 209, 213 (3d Cir. 2016) (“On remand, the Court should also consider whether there is a less restrictive option to sealing the entire agreement that could protect privacy interests (such as redacting confidential information).”); In re Providence J. Co., Inc., 293 F.3d 1, 15 (1st Cir. 2002) (“[W]e think that the district court’s refusal to consider redaction on a document-by-document basis is insupportable. Courts have an obligation to consider all reasonable alternatives to foreclosing the constitutional right of access. Redaction constitutes a time-tested means of minimizing any intrusion on that right.”) (cleaned up.)

The post Court Rejects Lawsuit Claiming Police Discriminatorily Refused to Prosecute Rapist appeared first on Reason.com.

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Voices for Liberty Symposium on Civil Rights and Free Speech, 9/22, Registration Open!

REGISTRATION OPEN: Voices for Liberty Symposium on Civil Rights and Free Speech

FRIDAY, SEPTEMBER 22, 2023 | Antonin Scalia Law School and Virtual

Visit our webpage for details and registration: https://tinyurl.com/3t9d63j8

* * * * * * * * * *

Does free expression help or harm the cause of social progress?

Join senior scholars and exciting new voices presenting cutting-edge research on the role freedom of speech plays in advancing civil rights movements (past, present and future). Academic research into this important topic has been surprisingly limited. Scholars will present new papers exploring whether free expression entrenches an unjust status quo or provides critical support for groups wishing to challenge it.

Don’t miss keynote speakers Jonathan Rauch and Nadine Strossen!

Voices for Liberty, an initiative of the Liberty and Law Center at George Mason’s Antonin Scalia Law School, aims to broaden debates about freedom of speech through new scholarship, campus speakers, and public events.

Questions? vfli@gmu.edu

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As Wagner Fighters Threaten New ‘March On Moscow’, Putin Says Prigozhin Was “Talented” Man Who Made “Mistakes”

Wagner supporters inside Russia have set up makeshift memorials as they mourn the loss of their leader Yevegny Prigozhin, even as speculation continues that he could still be alive.

More importantly, some are threatening a new ‘march of Moscow’ to express rage at ruling powers in Moscow and commanders in the defense ministry. August 24, it should be noted, is precisely two months since the Wagner uprising of June 23, which resulted in several deaths of regular Russian troops.

*Makeshift memorial in front of the PMC Wagner office in Novosibirsk, via AFP.*

Wagner Telegram channels have reported Prigozhin’s death, and that of his right-hand man Dmitry Utkin in the same crash outside of Moscow Wednesday.

UK media has meanwhile referenced Wagner social media statements to suggest some among the mercenary outfit may be attempting to organize a new march or large-scale protest aimed at Moscow, or at least they’ve issued a new threat of a “march”:

A Wagner address last night, reported by the Sun, stated: ‘We directly say that we suspect the Kremlin officials led by Putin of an attempt to kill him!’.

‘If the information about Prigozhin’s death is confirmed, we will organize a second March of Justice on Moscow!‘

Meanwhile armed men claiming to be from the unit warned Putin in a video shared online: ‘There’s a lot of talk right now about what the Wagner Group will do. We can tell you one thing.

‘We are getting started, get ready for us.’

In St. Petersburg, flowers were laid out in front of Wagner headquarters, with one mourner quoted as saying, “It’s like losing a father. He was everything to us.”

According to more from the scene:

Makeshift memorials appeared outside the private military group’s former headquarters around midnight Thursday, with footage showing mourners bringing flowers, candles and patches featuring Wagner’s skull logo.

Similar memorials were spotted in the Siberian city of Novosibirsk, according to the news website Sota. At least one supporter staged a one-man picket in the city of Yaroslavl, the news website 7×7 reported.

“Guys, we just have no words right now,” said one masked man, who claimed to be a member of Wagner, according to AFP journalists. “Let’s support Yevgeny Viktorovich [Prigozhin] and all our commanders. We need your support now.”

Wagner fighter cries at the memorial to Prigozhin in Novisbirsk pic.twitter.com/2NwhAQb0pK

— Michael A. Horowitz (@michaelh992) August 24, 2023

On Thursday President Putin belatedly addressed the reported death of Prigozhin for the first time, vowing to see a criminal investigation through to completion, and hailing him as a “talented businessman” who made “mistakes”.

According to a state media translation of the fresh Putin remarks:

Yevgeny Prigozhin was a man of many talents who made a “significant contribution” to the struggle against neo-Nazis in Ukraine, Russian President Vladimir Putin said on Thursday, commenting on the plane crash that reportedly killed the Wagner Group head.

Speaking with journalists at the Kremlin, Putin said that he had known Prigozhin since the early 1990s, and described him as “a man of complicated destiny.”

“He’d made serious mistakes in his life, but also got results. For himself as well as our common cause, when I asked it of him in these last months,” Putin added. He described Prigozhin as “a talented businessman” who worked in Russia as well as in Africa dealing with oil, gas, precious metals and gems.

Vladimir Putin confirms Yevgeny Prigozhin died when the Wagner founder’s plane crashed yesterday.

” I knew Prigozhin for a long time, from the early 1990s. He had a difficult path and made serious mistakes in his life. But he got results – for himself, and when I asked him.” pic.twitter.com/dYZTRVOW5q

— max seddon (@maxseddon) August 24, 2023

Meanwhile the US has said it believes the Wagner private jet was shot down with a surface-to-air missile that originated from within Russia. If true, this would point to Putin or the military chain of command having made the decision to take the plane out.

Tyler Durden
Thu, 08/24/2023 – 15:20

via ZeroHedge News https://ift.tt/4oHJLh9 Tyler Durden

Elon Musk Vows To Sue Soros-Funded NGOs Over Free Speech

Authored by Tom Ozimek via The Epoch Times,

Elon Musk said that X, the platform formerly known as Twitter, would sue organizations funded by financier George Soros that allegedly pushed for a crackdown on free speech.

Mr. Musk, who bought Twitter last year in a pledge to make the platform a bastion of free speech, said in a post on X on Aug. 23 that he agrees with the view expressed by investigative journalist Michael Shellenberger that George Soros-funded NGOs have been falsely claiming that “hate incidents” are on the rise in order to push restrictions of free expression.

“Politicians & George Soros-funded NGOs say ‘hate incidents’ are rising, but they’re not,” Mr. Shellenberger wrote in his post.

“The data show the opposite: higher-than-ever and rising levels of tolerance of minorities. The reason they’re spreading hate misinformation is to justify a draconian crackdown on free speech.”

Mr. Musk reacted to the post by signaling his agreement and pledging to sue.

“Exactly,” Mr. Musk wrote.

“X will be filing legal action to stop this. Can’t wait for discovery to start!”

In making his assertion, Mr. Shellenberger shared an article by Irish journalist Ben Scallan, who wrote that NGOs backed by Open Society Foundations (which was founded by Mr. Soros), are pushing a “censorship agenda” in Ireland and Scotland that includes police searches of homes and personal devices like homes.

Mr. Scallan’s article does not specify which Soros-funded NGOs are supposedly engaged in pushing a “censorship agenda.” Neither did Mr. Shellenberger nor Mr. Musk.

The Epoch Times has reached out to Open Society Foundations with a request for comment on the claims and Mr. Musk’s legal threat.

Hungarian-born U.S. investor and philanthropist George Soros looks on after having delivered a speech on the sidelines of the World Economic Forum annual meeting in Davos, Switzerland, on Jan. 23, 2020. (Fabrice Coffrini/AFP/Getty Images)

More Details

Mr. Scallan’s article says that Irish leaders, including Justice Minister Helen McEntee, have asserted that hate-based offenses are on the rise in Ireland. They point to a reported 29 percent increase in hate crimes in 2022 compared to the previous year.

However, Mr. Scallan argues that an increase in reporting of hate offenses doesn’t necessarily mean an actual increase in hate crimes, in part because the threshold for classifying something as a hate offense is low, requiring little evidence beyond someone’s claim.

He wrote that the police and government in Ireland have been urging people to report hate incidents for years, and the police have set a goal to increase the number of reported hate crimes, which may have contributed to the reported increase in hate-based offenses.

The journalist also highlighted research indicating that people today are more likely to label things as “harmful” and “hateful” than in the past, suggesting a broader cultural shift in perceptions about what constitutes such an offense.

Mr. Scallan, who is a mixed-race Irish journalist, said there’s no good evidence supporting the claim that there’s been an increase in hate crimes in Ireland, particularly against migrants.

He argues that the heightened focus on hate speech might serve as a pretext for the Irish government’s push to enact strict hate speech laws, which would criminalize possessing “hateful material” and impose penalties for refusal to provide device passwords to authorities.

The proposed law (pdf), called the Criminal Justice (Incitement to Violence or Hatred and Hate Offenses) Bill 2022, has been criticized for potentially restricting free speech and reversing the burden of proof, placing the onus on the accused to prove their innocence.

Ms. McEntee, the Irish prime minister, has advocated for the measure.

“It’s hard to believe that despite increasing instances of hate crime and general support from the public to criminalize such acts, Ireland doesn’t yet have hate crime laws in place and will be one of the last countries in Europe to enact such legislation,” she said in a speech in mid-June.

While Ireland has had legislation in place against hate speech for nearly 35 years, Ms. McEntee said it has been “ineffective, limited and largely discredited.”

“We bear a responsibility, as legislators, to do our utmost to provide for a safe, fair and inclusive country for all,” she said while claiming that the legislation has been “subject to deliberate misinformation and distortion, including from fringe commentators and US-based social media personalities.”

‘Will Mocking Memes Be Tolerated?’

During recent debate on the bill in the Irish Senate in June, independent senator Ronan Mullen questioned whether the law would go too far, for instance, by punishing people for debating gender identity.

”Will mocking memes be tolerated?” he asked, per British news outlet The Telegraph.

“Will carrying a placard stating ‘Men cannot breastfeed’ warrant a hate-speech investigation or up to five years imprisonment, a lifelong label as a criminal hater and all of the stigma and life limitation that goes with that? Nobody actually knows,” he said, per the publication.

Ireland’s Department of Justice told The Telegraph that the bar for prosecution under the proposed law would be “very high” and that “criminal incitement to hatred will not be an area that anybody will stray into by accident.”

The threat of legal action by Mr. Musk comes after X filed a lawsuit against the Center for Countering Digital Hate (CCDH), alleging that the nonprofit was engaged in a “scare campaign to drive away advertisers” from the platform by making false or misleading claims about the amount of content on X that was supposedly “promoting hate.”

Mr. Musk’s latest comments about taking Soros-funded NGOs into his crosshairs for legal action follow critical remarks he made about the billionaire financier, who has been a common target of right-wing criticism.

Elon Musk in Paris on June 16, 2023. (Joel Sagat/AFP via Getty Images)

Soros as ‘Magneto’

In a recent interview with Mr. Musk, CNBC reporter David Faber pressed the Tesla chief on a controversial tweet in which he compared Mr. Soros to the comic book arch-villain Magneto.

“He wants to erode the very fabric of civilization. Soros hates humanity,” Mr. Musk said in his tweet.

Asked about it during the mid-May interview, Mr. Musk said he stood by this opinion and suggested that the reaction to his posting his views is overblown.

“Calm down people, let’s not make a federal case out of it,” Mr. Musk said of the online outrage expressed over the tweet in some circles.

Pressed on whether he hadn’t considered the impact of his controversial tweets on the bottom lines of companies he helms (as advertisers might turn away) Mr. Musk said he refuses to be silenced by the threat of dwindling profits.

“I’ll say what I want, and if the consequence of that is losing money, so be it,” he said in the interview with Mr. Faber.

“This is freedom of speech,” Mr. Musk replied. “I’m allowed to say what I want to say.”

During the interview, Mr. Faber, in more general terms, challenged the purposefulness of Mr. Musk’s penchant for posting controversial viewpoints.

“You do some tweets that seem to be … conspiracy theories,” Mr. Faber said in the interview.

“Well, yes, but I mean honestly … some of these conspiracy theories have turned out to be true,” Mr. Musk replied. “Like the Hunter Biden laptop.”

After Mr. Faber conceded that this was “true,” Mr. Musk elaborated on the scandalous suppression of the Hunter Biden laptop story by Twitter and other social media platforms.

“That was a pretty big deal. … Twitter and others engaged in acts of suppression of information that was relevant to the public. That’s a terrible thing that happened. That’s election interference,” he said.

Polling showed that a staggering 79 percent of voters said they think President Donald Trump would have won reelection in 2020 if voters had been aware of the truth that the Hunter Biden laptop was true and not “Russian disinformation,” as suggested by a group of former intelligence community professionals in a controversial open letter that was widely disseminated by left-leaning media outlets, which pushed the narrative that the laptop was fake.

Tyler Durden
Thu, 08/24/2023 – 15:00

via ZeroHedge News https://ift.tt/JGjhmaN Tyler Durden

Jackson Hole Preview: “Do We Receive Another Hawkish Surprise?”

With the most important earning report of the week, and probably quarter, out of the way, when NVDA reported blowout earnings and guidance only to see a bout of selling the news which nearly pushed the stock to red on the day, because as JPM’s Stuart Humphrey said “now we can be happ… until we get pessimistic into the next earnings print because THERE IS NO WAY THEY CAN GUIDE LIKE THIS AGAIN….or can they“, attention now turns to the last main event of August, and the summer, when Jerome Powell speaks tomorrow just after 10am ET, at Jackson Hole.

Before we go deeper, here is quick FAQ courtesy of BofA economist Aditya Bhave:

When is it & what is topic? August24-26, “Structural Shifts in the Global Economy”
Why does market care? Fed Chairs often speak, and other officials attend. Major policy changes have been signaled, and it is often during a long intermeeting period.
What do we expect at JH? Fed to reiterate 2% objective, stress more inflation work to do, sound less balanced vs July presser or FOMC minutes due to recent strong data.
What is market JH reaction? Rates = less balanced Fed guidance will be hawkish; stay underweight front end. FX = no strong signal likely, neutral rate focus likely hawkish.
What is historic JH reaction? Rates = sell off into JH, sideways week after, sell off into Sept; curve flatter (Exhibit 1); FX = sideways, 2022 was outlier

With memories still fresh how Powell crushed markets exactly one year ago, when his last-minute revised, and at just 8 minutes, sharply abbreviated speech sent stocks tumbling more than 3% and accelerated the global bear market, while the prevailing rhetorical question is “do we receive another hawkish surprise”, the consensus view around Powell is that this time we will receive no new information, because, as JPM’s Market Intel desk writes, “the Fed is strictly data dependent, and that all pause will be characterized as a “hawkish skip” to maintain optionality.“

Of course, blindly hoping that Powell will not rock the boat may be the fastest way to being stopped out of a career in finance, as today’s post-Nvidia reversal selloff in both bonds and stocks demonstrates, as markets start to freak out about the return of a much more hawkish Powell.

That’s why we previously published not one but two J-Hole previews: in the first one we analyzed what the Fed chair may say…

Powell will i) present a modestly hawkish medium-term baseline policy stance, ii) allow for risk that the Fed is done hiking but not shut down the possibility of more tightening, iii) while damping expectations of early cuts.

Powell may also raise the prospect of future pre-emptive strikes to limit inflation surges, arguing that the difficulty in slowing inflation and its disproportionate impact on low-income families justify an asymmetric policy.

Market-moving comments would likely relate to the rising term premium at the long end in fixed-income markets and any indication whether the Fed sees it as either desirable or likely to persist. The Fed doesn’t control long-term rates actively, despite buying and selling for the Federal Reserve System portfolio.

… and the second one warned that “Equities Are At Greater Risk Of Jackson Hole Shock Than Is Priced In“, and which looked at the market’s growing complacency as volatility on major macro “events” and releases has been surprisingly muted vs other trading days unlike previous years.

While we urge readers to refresh on both of the above notes, we wanted to point out that JPM’s rates strategist Jay Barry did a good job breaking down recent Treasury behavior and what is likely on/off the table to be discussed by Powell. For the TL/DR crowd, JPM’s conclusion is that with the 10Y around 4.25%, yields are likely too high, and Jackson Hole could be the catalyst for a near-term rally, which would aid risk-assets. Some more details from Barry’s note below:

To the extent that the title of this year’s conference is “Structural Shifts in the Global Economy” and that Chair Powell pushed back against market pricing in a more hawkish fashion in this venue last year, market participants have been speculating about whether this year’s edition will be another market-moving event. Indeed, a well-respected Fed reporter over the weekend wrote on how stronger productivity gains and a wider budget deficit might raise the neutral interest rate , (r*).

“Conceptually, if the economy is running above potential at 5.25% interest rates, then that suggests to me that the neutral rate might be higher than we’ve thought.” https://t.co/IUr8x6zpmN pic.twitter.com/hdpVnWXrcy

— Nick Timiraos (@NickTimiraos) August 20, 2023

Indeed our own economics team argued earlier this year that low neutral rate estimates are a result of GFC reverberations which depressed demand and inflation, and that the cyclical backdrop points towards higher neutral rates. Moreover, resilience in the face of a large policy shift would reinforce the case for revising neutral higher (see When you wish upon r*, Bruce Kasman, 2/15/23). Notably, individual FOMC estimates of the longer-run Fed funds rate, which markets view as a proxy for r*, have been gradually moving up in recent SEP, but have yet to affect the median rate. While the article made the case on why the neutral rate of interest might be rising, the article concluded by saying Fed leadership had not yet been convinced about this. Nonetheless, in an environment in which long-term yields have been climbing for the last month driven by increased growth and inflation expectations, and perhaps exaggerated by a less supportive monetary policy backdrop globally and fears of increased duration supply, this has only added pressure to yields ahead of Chair Powell’s comments at Jackson Hole on Friday morning. We think it’s somewhat unlikely the Chair’s comments will foreshadow a larger change to the longer-run dot at the September FOMC meeting, as Chair Powell has repeatedly discussed policy as being restrictive. Moreover, if history is a guide, this could be a slow process: Figure 2 shows the median longer-run dot declined 175bp over the last expansion, but this was spread over a decade. Thus, we think it would be difficult to conclude with certainty the Chair would make an aggressive statement on this topic on Friday, even though the risk may lean in this direction.

Another way of putting this: the Fed is increasingly contemplating how to break it to the public that it will have to raise the inflation target from 2% to 3%, something we said over a year ago is coming…

My latest @WSJopinion advocates a hawkish pivot to a higher inflation target.

A higher target has many benefits but would be terrible if it deanchored expectations.

The better the Fed can do now on inflation the more room it will have to adjust long run. https://t.co/nDe5313Bg8

— Jason Furman (@jasonfurman) August 20, 2023

… and which a Jason Furman weekend op-ed reinforced.

My latest @WSJopinion advocates a hawkish pivot to a higher inflation target.

A higher target has many benefits but would be terrible if it deanchored expectations.

The better the Fed can do now on inflation the more room it will have to adjust long run. https://t.co/nDe5313Bg8

— Jason Furman (@jasonfurman) August 20, 2023

What about JPM’s trading desk? Here, we look to the latest note from Market Intel head Andrew Tyler who reminds us of what he wrote after the latest CPI release: “The CPI, hourly earnings, and jobless claims combined to create a dovish signal for the markets. The disinflation story continues but this print is not enough to remove the ambiguity surrounding the Fed’s future behavior meaning we are likely to get a data-dependent message at Jackson Hole before seeing a “hawkish skip” at the Sept meeting. While today sets up as a relief rally of sorts, I do not think this is a dovish enough print to push markets back to near-term highs given the dearth of market-moving information and the seasonal weakness of Aug/Sept. That said, I do think Q4 will be a strong quarter for stocks as the economy continues to exhibit growth without inflation and the prospect of improving earnings and lower yields will also be positive for indices.”

As Tyler concludes, while there has not been enough of break in macro data to warrant a change in this view, given the market turmoil surrounding China, let’s see if Powell addresses potential risks or look at the recent surge in yields as additive to their mission, or say nothing.

* * *

Turning to Bank of America’s view, here is what the bank expects from Fed communications?

We expect Powell to reiterate the Fed’s commitment to its 2 percent inflation target. He will likely note that although there has been progress on the inflation front, there is still a lot more work to be done. Therefore, policy will remain restrictive for an extended period.

At the July press conference, Powell noted that risks around the impact of Fed policy were becoming more balanced and, given the lagged effect of monetary policy on the economy, the Fed would likely start cutting rates before inflation reaches 2%. We think the tone could be less balanced at Jackson Hole given the robust data flow since the July FOMC meeting. In particular, 2Q GDP came in well above expectations at 2.4%, and July retail sales ex-autos surged by 1.0%. While the Fed would prefer not to short-circuit the business cycle, policymakers are probably becoming increasingly concerned about a re-acceleration in inflation, driven by strong aggregate demand. Therefore, we expect Powell to push back— implicitly or explicitly— against the degree of rate hikes that markets are pricing for next year.

Meanwhile, in terms of the extent and timing of additional hikes, Powell is likely to emphasize that the Fed is data-dependent and every meeting is live. If Powell were to comment that he is comfortable with the current pace of hikes for now, markets would view that as guidance towards a pause in September and a possible hike in November.

Market participants have recently speculated that Jackson Hole will be used as a venue to highlight upcoming shifts in Fed communication around the neutral rate. Market focus has recently increased on the neutral rate due to underlying economic resilience in the face of elevated policy rates & re-pricing of global 3y1y rates.

We would be surprised to see any large shift in Fed communications around the neutral rate at Jackson Hole, given that there is significant uncertainty around estimates of this rate. If the Fed were to signal expectations for a higher neutral rate it would likely be interpreted by the market as hawkish since it implies higher overnight rates to slow the economy.

Next, BofA looks at what is expected rates & FX market reaction around Jackson Hole?

US rates: Fed communications that sound less balanced vs the July FOMC minutes risk being interpreted as hawkish by the market. This could result in greater pricing of hikes at the Sept & Nov meetings, which cumulatively price 11.5bps of further tightening. We would not be surprised to see this pricing shift to 15bps if more balanced Fed rhetoric is adjusted due to recent strong data in favor of a clearer tightening bias.

Hawkish Fed rhetoric risks & increased hikes will reinforce our core view for clients to remain underweight the UST front end. We have recommended clients position in Dec ’23 – Mar ’24 FOMC steepeners, which should benefit from a more hawkish Fed message and / or reiteration of higher for longer message. We also expect a further reduction in the extent of rate cuts priced in ’24. Cuts in ’24 have been reduced by 25bps since last Monday; we see risks these cuts are reduced further (Exhibit 2). A further reduction of rate cuts will likely result in a bear flattening of the UST curve.

FX: This year’s Jackson Hole conference occurs amid a relatively choppy and rangy FX market. The dollar has been rallying over the past month mainly on relative U.S. growth outperformance and the rise in both nominal and real yields. (FX Watch: The USD’s road trip 16 August 2023) However, this has been occurring amid a broader disinflationary trend in the U.S., as well as expectations that several other major central banks could keep rates higher-for-longer than the Fed to bring core inflation down. While we do not anticipate any overtly strong policy signals from Jackson Hole this year (as noted above), any overt suggestion of a higher-than-expected neutral policy rate could serve as a fresh catalyst for another leg of dollar appreciation. Conversely, should the topic of eventual rate cuts receive prominence, the dollar could move back into the lower-half of the year’s range.

Finally, what are the historic rates & FX reaction around Jackson Hole?

Rates: US rates have recently sold off into Jackson Hole, held the moves during the week after, and sold off more meaningfully into September. Since 2010 the US 10Y has declined 2+bps in the symposium aftermath but increased 3+bps in the 10D after. Over recent years the yield declines have been smaller & sell-off larger. The largest sell-off in recent years was 2022 due to Powell’s hawkish remarks on inflation.

The UST curve has tended to flatten modestly in immediate response to Jackson Hole (Exhibit 3). However, the curve has historically steepened in the 10D after the event. Powell’s 2022 Jackson Hole speech resulted in a curve steepening in the 10D after the event despite the more hawkish message & large rate sell-off at the front end.

Overall, recent years have seen the UST curve bear steepen in response to Jackson Hole.

FX: The dollar has traded within a modest +/- 0.5% range in the 10 days before and after Jackson Hole on average (Exhibit 4). FX volatility has similarly been subdued around the event (Exhibit 5). However, 2022 was a bit of an aberration. Last year, the USD appreciated about 3% in the 2 weeks leading up to Jackson Hole and continued another 1% in the weeks after.

While Chair Powell’s hawkish remarks added to the dollar’s ascent in 2022, it’s uptrend was well entrenched prior to the event. Indeed, 2022 was a noteworthy year for the dollar, as the DXY index reached a new 20-year high that September. Drivers for the dollar’s appreciation at the time included: the Fed’s aggressive tightening campaign, recession fears across the globe, energy shocks in Europe and elsewhere, and China’s zero-covid policies.

Turning to equities, it’s worth noting that while stocks usually move up by 40 bps in the following week, investors vividly recall the -3.2% move after last year’s hawkish surprise. This year, with 3 of 4 financial stability indicators having deteriorated from “moderate” levels, JPM’s trading desk writes that we may see a more neutral Powell allowing for another week of calm before we kick off the quarter’s finishing kick post-Labor Day.

Goldman had a preview note too, and we summarize the key parts below:

Q: What do we expect policymakers’ message to be?

A: We are not expecting to get a strong monetary policy signal out of Jackson Hole. Although we do expect the FOMC to skip a hike in September, key data including the PCE inflation and employment data come out shortly after the Jackson Hole symposium. The Fed will likely wait to be informed by these new data before changing their current posture.

We expect Powell’s speech will touch on similar themes to last year’s. Bringing inflation back down to target remains the Fed’s key concern, though the current backdrop is much more reassuring. Last year, the Fed was on the verge of making a big upward revision to both its inflation and unemployment rate forecasts; Powell warned that reducing inflation would ‘bring some pain’ – a statement that induced a significant market correction. This time around, a soft landing looks more plausible than at any point over the last year, and we expect that Powell’s message will be that they’re going to see the job through.

We also expect the sideline interviews to be close to what we have been hearing over the past few weeks – adamant that they will ‘see the job through’, but no rush to hike again either. We suspect the debate will turn to whether the Fed should turn to a ‘higher for longer’ policy or will follow New York Fed President Williams on the idea that they might need to cut to keep the real funds rate from rising too much.

Given the conference topic, President Lagarde’s speech could touch on some of the same topics she spoke about earlier at the Council on Foreign Relations. She argued that a more fragmented economy could lead to more instability and less resilient supply chains. Her speech at Sintra argued that there was a risk of more persistent inflation risks, and that monetary policy should break this chain by holding down demand. That is a very different type of inflation persistence than the ECB had to combat for most of the last decade, so this could also fit the theme of the Jackson Hole symposium, to some extent.

Q: What is the conference topic and how does that dictate the discussion?

A: This year’s conference topic is “Structural Shifts in the Global Economy,” which will set the direction for the research that gets presented, but much less so for the sideline interviews.

Although the conference organizers have not yet given any guidance as to what the discussions will cover, a few possible topics include deglobalization and the green transition, the neutral rate, artificial intelligence, larger fiscal deficits, and remote work. We will be watching particularly closely for any discussion of the neutral rate.

Typically, the conference topic will feature prominently in the keynote address (though it does not preclude a separate policy discussion) and dictate the papers being presented. While the academic part of the symposium has the potential to impact the long-run direction of policy, the side interviews should shed more light on immediate policy questions. And we should note that this particular conference is one of many such events held throughout the year, with no particular extra relevance in this regard.

* * *

Still not enough? We conclude with some excerpts from the just published J-Hole preview from Fed whisperer Nick Timiraos:

As with previous years, Powell is unlikely to use his speech to preview the Fed’s very near-term policy deliberations. Rather, he is more likely to review what the central bank has done and provide a broader framing of where policy might be headed. Such remarks would likely underscore that the Fed’s inflation-fighting job isn’t done.
“The theme I would be emphasizing is trying to get people off the binary view that once inflation starts coming down, it’s mission accomplished,” said former Fed Vice Chair Richard Clarida, who served with Powell from 2018 until early 2022. “What they want to avoid is” declaring an end to rate rises “and then find themselves next spring with underlying inflation not really having edged down in a very tight labor market.”
It may be too soon for Powell to publicly discuss how Fed officials might manage the proverbial last mile of the inflation fight—in which inflation gets much closer but not all the way to their 2% target. But the issue is likely to be a topic for lively debate on the sidelines of the conference.
“It’s too early to declare victory. It’s too early to foreclose the possibility of another hike down the road,” said Ellen Meade, an economist at Duke University who is a former senior adviser at the Fed. “Powell will need at some point to talk about that last mile, but right now he’s navigating the end of tightening and the how-long-to-hold conversation. The last mile comes after that.”
The theme of this year’s conference, “Structural Shifts in the Global Economy,” will delve into whether and how the Covid pandemic and the policy response permanently altered the economy, including trade networks and global financial flows. Papers will examine the potential ramifications of rapid shifts in monetary policy and the large increases in public debt. Christine Lagarde, president of the European Central Bank, is set to speak Friday at 3 p.m. ET.
One overarching question is whether the economy is exiting a period of low inflation and low interest rates that occurred between the 2008 financial crisis and the 2020 pandemic, and which some economists then dubbed the “new normal.” Policy makers concluded over the past decade that the neutral rate of interest, or the level that should prevail when the economy is growing steadily with low inflation, had declined.
Clarida said he expects the neutral rate will return to the lower levels that likely existed before the pandemic, even if Treasury yields remain modestly higher because of the premium investors demand on longer-term debt.

More available to pro subs in the usual place.

Tyler Durden
Thu, 08/24/2023 – 14:40

via ZeroHedge News https://ift.tt/S9JbFM6 Tyler Durden

Turley: Joe Biden’s Ukraine Defense Falls Apart

Authored by Jonathan Turley,

Below is my column in the New York Post on new evidence contradicting the account of President Joe Biden on his role in forcing the firing of Ukrainian prosecutor general Viktor Shokin. Biden’s boast about forcing the termination could become a defining moment in the corruption scandal.

Here is the column:

President Barack Obama famously warned fellow Democrats in 2020, “Don’t underestimate Joe’s ability to f–k things up.”

The warning was ignored by many as an almost brotherly reference to Biden’s habit of making false claims (like being arrested when seeking to see Nelson Mandela) or his continual verbal gaffes.

Biden has always had a certain penchant for bragging, whether it’s claiming a dead man told him he reached a million miles on Amtrak, being a cross-country trucker or fighting off some “bad dude” named Corn Pop.

But one of those bravado moments may have revealed more than vanity.

Ironically, it’s the one controversial story that appears entirely true.

In a 2018 interview at the Council on Foreign Relations, Biden bragged that he unilaterally withheld a billion dollars in US aid from the Ukrainians to force them to fire prosecutor general Viktor Shokin.

The Ukrainians balked, but Biden gave them an ultimatum: “I looked at them and said, ‘I’m leaving in six hours. If the prosecutor is not fired, you’re not getting the money.’ Well, son of a bitch. He got fired.”

The response from the Washington elite was rapturous, though the story was not only impolitic but embarrassing for an ally.

The Ukrainians were Joe’s new Corn Pop, and he recounted how he stared them down in a “High Noon” diplomatic moment.

A State Department memo is shedding disturbing light on that account and shredding aspects of Biden’s justification for the action.

Indeed, the ultimatum may have been the quid in a quid pro quo agreement as part of the Biden influence-peddling scandal.

The premise of the story is that Biden took this extraordinary stand because there was little hope for the anti-corruption efforts in Ukraine if Shokin remained prosecutor.

That is now questionable.

The Oct. 1, 2015, memo summarizes the recommendation of the Interagency Policy Committee that was handling the anti-corruption efforts in Ukraine: “Ukraine has made sufficient progress on its reform agenda to justify a third guarantee.”

One senior official even complimented Shokin on his progress in fighting corruption.

So Biden was told to deliver on the federal aid but elected to unilaterally demand Shokin be fired.

When the firing occurred, Shokin’s office was investigating Burisma Holdings, an energy firm that paid Hunter Biden a huge amount of money.

The State Department had identified it as a corrupt company engaged in bribery.

Recent testimony from Devon Archer, a business associate of Hunter Biden, revealed that Burisma executives made the removal of Shokin a top priority and raised it with Hunter.

He described how the need to neutralize Shokin was raised with Hunter and how “a call to Washington” was made in response. While Archer also said that “the narrative spun to me was that Shokin was under control,” he and others also heard concerns over Shokin and the risks of the investigation.

President Biden has insisted, “I did nothing wrong. I carried out the policy of the United States government in rooting out corruption in Ukraine. And that’s what we should be focusing on.”

Indeed, that will now be the focus, including the close correlation of the money and demands going to Hunter and the actions of his father.

There is evidence the State Department was alarmed by Hunter’s work and its impact on anti-corruption efforts.

While Joe was portraying his work as fighting corruption, some officials were warning the Bidens could be part of the problem, not the solution, in Ukraine.

Leading diplomat George Kent wrote then-Ambassador Marie Yovanovitch, “The real issue to my mind was that someone in Washington needed to engage VP Biden quietly and say that his son Hunter’s presence on the Burisma board undercut the anti-corruption message the VP and we were advancing in Ukraine b/c Ukrainians heard one message from us and then saw another set of behavior with the family association with a known corrupt figure whose company was known for not playing by the rules.”

As part of the first impeachment of Donald Trump, Democrats largely dismissed earlier accounts of these misgivings and portrayed Shokin as a thoroughly corrupt prosecutor perpetuating corruption.

Biden’s Ukrainian Corn Pop story was celebrated as a gutsy moment of leadership.

During the impeachment, Kent said Biden’s demand was consistent with US policy.

Yet we now know the State Department had found progress was being made on corruption and Shokin was praised in private correspondence.

The demand for the replacement of the equivalent of the attorney general in another country is an extraordinary move.

We give massive amounts of money to countries with rampant corruption and authoritarian records.

But Biden decided Shokin had to go and used public money to make that happen.

The memo also highlights the flaws in the Trump impeachment.

When I testified before the House Judiciary Committee at the only impeachment hearing, I told the committee it should not depart from history and proceed to an impeachment without fact witnesses on the grounds for impeachment.

Speaker Nancy Pelosi, Rep. Adam Schiff and others refused.

It now seems there was material evidence that would have been used at the impeachment trial.

Trump was alleging there was a conflict of interest with the Bidens, and the evidence could have challenged Biden’s account and established his son’s interest in the Shokin firing.

I still do not believe Trump should have raised the matter in that call with Ukrainian President Volodymyr Zelensky.

This evidence may not have made a difference to some senators, but it demonstrates why impeachments should proceed after fact hearings.

Instead, in the second impeachment, the Democrats went one better.

They used what I called a “snap impeachment” without even a hearing on the impeachment standards and articles.

The House could now have little choice but to hold the very hearings the Democrats blocked during the earlier impeachment — with a different president under constitutional scrutiny.

Tyler Durden
Thu, 08/24/2023 – 14:20

via ZeroHedge News https://ift.tt/sYyEXPO Tyler Durden

Walmart Drones To Serve 60,000 Dallas Homes

Walmart announced its drone delivery service at two Dallas, Texas, stores is about to take flight in the coming months and serve upwards of 60,000 homes. The mega-retailer, with thousands of stores nationwide, hopes to expand its drone delivery network, currently operating in 36 stores in seven states, as a move to reduce the time and cost of delivering goods to customers on the last mile.

“Working with Wing directly aligns with our passion for finding innovative and eco-friendly last-mile delivery solutions to get customers the items they want, when they want them,” Walmart said.

The Walmart Supercenter at 8555 Preston Road in Frisco, Texas, will be the first of the two stores to launch the drone delivery service powered by Alphabet Inc.’s Wing unit. It will then “join our existing network of 11 drone hubs already operating in the Dallas area,” the retailer said, adding customers will be able to order frozen treats, household essentials, last-minute meal solutions, cheese, and eggs. The second store will be added later this year.

Wing’s drones can deliver small packages that weigh approximately 2.6 pounds at a distance of six miles, with a top speed of 65 mph — this is by far the fastest delivery option for consumers.

Walmart and Wing set to expand drone delivery together in Dallas metro📦 #DeliveredbyWing #DroneDelivery #supplychain #deliverydrone #uas #uav #logistics #robotics #drone #drones #engineering #automation #aerodynamics #delivery #lastmiledelivery pic.twitter.com/koLFm3BJor

— Wing (@Wing) August 24, 2023

Attempts to scale the commercial drone delivery industry have been moving at a snail’s pace due to significant technical challenges and a lengthy regulatory approval process with the Federal Aviation Administration.

Besides Walmart — UPS, CVS, Amazon, and others have been onboarding drone delivery services in recent years:

As for all of those UPS delivery drivers slated for a bump in pay — remember, drones and automation will eventually displace you (maybe a 2030s story or sooner) — so enjoy things while they’re good.

Tyler Durden
Thu, 08/24/2023 – 14:00

via ZeroHedge News https://ift.tt/fKB8yNS Tyler Durden

Bipartisan Bill Aims To Block Chinese Purchase Of US Farmland

Authored by Eva Fu via The Epoch Times (emphasis ours),

A bipartisan proposal introduced in the U.S. House on May 17 aims to block Chinese Communist Party (CCP) affiliates from taking hold of U.S. farmland, adding to the growing bipartisan push in Congress to counter threats from the regime in Beijing.

*An aerial view from a drone shows a truck loaded with soybeans harvested from a field at the Bardole & Son’s Ltd. farm in Rippey, Iowa, on Oct. 14, 2019. (Joe Raedle/Getty Images)*

The legislation from Reps. Dale Strong (R-Ala.) and Abigail Spanberger (D-Va.), titled “Protecting America’s Agricultural Land from Foreign Harm Act,” would bar individuals associated with the Chinese regime and other foreign adversaries from buying or leasing U.S. farmland.

The prohibition covers any person or entity “owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary”—among them are Iran, North Korea, China, and Russia, with the exception of U.S. citizens and permanent residents.

Under the proposal, those covered individuals and entities would be banned from participating in Department of Agriculture (USDA) programs if they have full or partial ownership of U.S. farmland or lease agricultural land in the country unless it’s related to food safety regulatory requirements or the health and labor safety of individuals.

“The United States can no longer turn a blind eye to the threats posed by the Chinese Communist Party. As the CCP looks to exploit weaknesses in our free and open society, it is our responsibility to ensure that the American people are protected against those who seek to undermine our national interest,” Strong said in a statement.

*An aerial view from a drone shows a combine being used to harvest soybeans in a field in Rippey, Iowa, on Oct. 14, 2019. (Joe Raedle/Getty Images)*

China owned 325,686 acres of U.S. agricultural land as of the end of 2020, according to the USDA. While that’s less than 1 percent of the total foreign-held land, the acreage marked a more than 20-fold jump from a decade earlier.

Spanberger, a former CIA case officer, said that her previous work in the intelligence field gave her clarity on the “threats posed by the Chinese Communist Party’s aggressive influence campaigns, as well as its attempts to target U.S. national security interests through seemingly innocuous transactions.

“And as the only Virginian on the U.S. House Agriculture Committee, I’m committed to protecting America’s farms and farm families from foreign threats,” she added. “If buying up American farmland is a tool for eroding our nation’s food security, economic security, and national security, then we need to be prepared to take steps to push back against these efforts.”

Sens. Mike Braun (R-Ind.), John Tester (D-Mont.), Marco Rubio (R-Fla.), and Tommy Tuberville (R-Ala.) introduced a companion version of the measure in the Senate in March.

The lawmakers noted that the United States currently lacks accurate data on foreign land ownership and investment because of loopholes and lapses in reporting.

“You’re looking at more than 3,000 counties in the country; every single county has a recorder’s office, every single recorder’s office receives deeds. There is not a process now for there to be an accumulation of the deeds that are being filed today,” Agriculture Secretary Tom Vilsack told the House Agriculture Committee at a March 28 hearing.

“In those recorder’s offices,” he said, “it’s dependent on people making the report to us voluntarily. It’s a system where there is a gap in terms of our ability to know what transactions are taking place.”

Agriculture Secretary Tom Vilsack addresses the opening session of the Agriculture Innovation Mission (AIM) for Climate Summit at the JW Marriott in Washington on May 8, 2023. (Chip Somodevilla/Getty Images)

At the hearing, Rep. Mark Alford (R-Miss.) described the Chinese ownership of U.S. land as a big concern.

“One acre that is bought or owned by the Chinese communist government or any agent thereof is a big concern, especially near Whiteman Air Force Base in my district, home of the B-2 stealth bomber,” he said. “Something has to change.”

Vilsack, in response, said that he agrees that “we have to be very, very careful about the ownership of foreign land near any of our defensive installations, which is why the recent situation in North Dakota was brought to everyone’s attention.”

The situation in North Dakota cited by Vilsack involved a Chinese corn mill project in Grand Forks, on land located about 12 miles from the Grand Forks Air Force Base. The Grand Forks City Council voted 5–0 to end the project in February after a year-long debate and intense pushback from local residents. The U.S. Air Force stated in a late January letter that its view is “unambiguous” that “the proposed project presents a significant threat to national security with both near- and long-term risks of significant impacts to our operations in the area.”

*An RQ-4 Global Hawk drone lands at Grand Forks Air Force Base in North Dakota. (Johnny Saldivar/Wikimedia Commons)*

In April, a Michigan Senate committee approved sending $175 million of state money to help Chinese manufacturer Gotion build an electric vehicle battery project. The site will be about 100 miles from Camp Grayling—the Michigan National Guard training center, which has been training Taiwanese troops.

“We are partnering with Taiwanese military leadership to make sure they can defend themselves from possible invasion from the Chinese military operation. And so the idea that we’re going to have a company within 100 miles that has an affiliation and has a duty to respond to the Chinese Communist Party, that is a concern,” Rep. John Moolenaar (R-Mich.) recently told “China in Focus” on NTD, the sister media outlet of The Epoch Times.

Strong, in the May 17 statement, also urged stronger oversight over farmland ownership.

“We must be able to effectively monitor who is growing, producing, and marketing our food safety and agriculture products. Lacking that ability is a clear threat to national security.“

Tyler Durden
Thu, 08/24/2023 – 13:40

via ZeroHedge News https://ift.tt/slGkbVa Tyler Durden