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Two Tennessee sheriff’s deputies face federal charges in connection with a 2016 incident, captured on surveillance videos, in which they used a stun gun on a teenager tied to chair at the Cheatham County jail. In one video, he is tased four times for a total of 50 seconds.

Jordan Elias Norris, who was 18 at the time, was arrested in November 2016 for marijuana and drug paraphernalia possession, weapon possession, and theft under $500. According to a lawsuit he filed in 2017, Norris suffered more than 40 pairs of Taser burns. “I’ll keep on doing that until I run out of batteries,” Cpl. Mark Bryant allegedly told Norris. Bryant and two other deputies were placed on leave after the incident, which was referred to the Tennessee Bureau of Investigation (TBI).

On Tuesday, Don Cochran, the U.S. attorney for the Middle District of Tennessee, announced indictments against Bryant and Sgt. Gary Ola. Bryant is charged with deprivation of rights and obstruction of justice. If convicted, he faces up to 10 years in prison on the first charge and up to 20 years on the second. Ola is charged with making false statements to the TBI and the FBI. If convicted, Ola faces up to five years in prison. Ola was still employed with the Cheatham County Sheriff’s Office when the charges were announced. Both men were arrested on Tuesday. The other two deputies initially placed on leave were not listed. Ola became involved later during the investigation.

“They abused him and they tortured him, and then lied about it,” Norris’ stepfather, Tony Chapman, said yesterday. When he first saw his stepson’s burns, Chapman told reporters, he sided with the deputies, assuming Norris was fighting back. His perception changed after he saw the surveillance videos.

Chapman suspects the officers’ actions contributed to his son’s death. Norris, who dropped his lawsuit after receiving a settlement, died in March at the age of 19. An autopsy found that he died from a suspected overdose. But Chapman notes that the autopsy also found damage to the right ventricle of Norris’ heart, which may have been a factor in his death.

“We’re talking about a young, healthy 18-year-old when these tasings happened,” he said. “Absolutely no doubt in my mind that this tasing incident damaged his heart.”

A 2017 report from Reuters documented fatal Taser abuse behind bars:

Reuters identified 104 deaths involving Tasers behind bars, nearly all since 2000—10 percent of a larger universe of more than 1,000 fatal law enforcement encounters in which the weapons were used. Some of the in-custody deaths were deemed “multi-factorial,” with no distinct cause, and some were attributed to pre-existing health problems. But the Taser was listed as a cause or contributing factor in more than a quarter of the 84 inmate deaths in which the news agency obtained autopsy findings.

Like Norris, more than two-thirds of the inmates in the cases that Reuters reviewed were immobilized by officers before they were tased. Only two of the inmates were armed.

“Professional speech” receives the same First Amendment protection as other kinds of speech, the U.S. Supreme Court reiterated Tuesday. In a decision dealing with California’s “crisis pregnancy centers”—which encourage women to give birth rather than seek abortions—SCOTUS found that the state can’t compel these centers to alert clients about state-assisted abortion options, thereby rendering California’s “Reproductive FACT Act” unconstitutional.

The law, which combines the charged issues of abortion and religious liberty, split conservatives and liberals on the Court (and in the public) along predictable lines. But while the Court’s decision isn’t likely to have much effect on abortion access or freedom of conscience, it could have major implications for state regulation across a wide range of situations and industries.

“The majority’s view, if taken literally, could radically change prior law,” warns Justice Stephen Breyer in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

In holding that California’s rules for crisis pregnancy centers are unconstitutional content-based regulations, SCOTUS may have paved the way for successful challenges to what Breyer et al. call “ordinary social and economic regulation.”

Professional Speech Is Still Free Speech

The crux of yesterday’s SCOTUS ruling is that California’s Reproductive FACT Act violates the First Amendment. “Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” Justice Anthony Kennedy writes in a concurring opinion.

Passed in 2015, the FACT Act is aimed at crisis pregnancy centers—defined by California legislators as “pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center”—as well as other organizations that offer family planning services. Under the law, all such entities licensed by the state as medical facilities must provide patients with information about state-assisted prenatal care, contraception, and abortion services. Centers that are not licensed to offer medical care are required to disclose that status on site and in all advertisements.

Two California pregnancy centers, one licensed by the state and one not, and an organization representing crisis pregnancy centers argued that the law violated their First Amendment rights. After a federal judge and the U.S. Court of Appeals for the 9th Circuit upheld the law, the Supreme Court agreed to hear the case, National Institute of Family and Life Advocates v. Becerra.

Yesterday the Court held that requiring licensed clinics to provide information about state pregnancy and abortion services is indeed an unconstitutional content-based restriction on speech. Content-based speech regulations are unconstitutional unless the government can prove that they serve a “compelling government interest” and that they have been narrowly tailored, meaning they don’t sweep too widely and do not impose a burden greater than necessary to achieve the government’s goal.

In this case, “licensed clinics must provide a government-drafted script about the availability of state-sponsored services,” including “abortion—the very practice that petitioners are devoted to opposing,” Justice Clarence Thomas notes in the majority opinion, which was joined by Kennedy, Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch. Such a burden is hard to justify as necessary to achieve California’s goal of publicizing state services, the Court concluded.

The 9th Circuit decided that California did not have to satisfy this test because it was regulating “professional speech,” which enjoys less protection under the First Amendment. “But this Court,” Thomas writes, “has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.'”

Who Are You Calling a Professional?

The Supreme Court “has afforded less protection for professional speech in two circumstances,” Thomas writes. But “neither [circumstance] turned on the fact that professionals were speaking” (emphasis mine), as opposed to some other sort of speaker. Rather, the speech in question either conveyed “factual, noncontroversial information” or constituted professional conduct that only incidentally involved speech.

In Planned Parenthood v. Casey, for example, the Court upheld a Pennsylvania regulation requiring doctors to tell abortion patients about “the nature of the procedure, the health risks of the abortion and childbirth, and the ‘probable gestational age of the unborn child,'” as well as provide details about state services for new parents. Planned Parenthood sued on free speech grounds, but SCOTUS sided with the state, saying the rule was merely part of obtaining informed consent for a medical procedure.

“For constitutional purposes, [the law is] no different from a requirement that a doctor give certain specific information about any medical procedure,” the Court held in Casey. And speech that is “part of the practice of medicine” is “subject to reasonable licensing and regulation by the State.”

In the present case, by contrast, the compelled speech “does not facilitate informed consent to a medical procedure,” Thomas says. “In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.”

Nor is the regulation a particularly effective way of accomplishing the state’s goals, Thomas suggests. California said the FACT Act was aimed at ensuring that low-income women would find out about state-sponsored services. But “assuming that this is a substantial state interest,” Thomas writes, the law “is not sufficiently drawn to achieve it,” as it excludes community clinics, rural health centers, federal health centers, and all sorts of spaces where low-income women receive care.

In any event, California certainly could find other ways to inform low-income women about its services, the Court concludes, suggesting it mount a public information campaign or “even post the information on public property near crisis pregnancy centers.” The state said this was not a viable option, since previous advertising campaigns did not generate much of a response. Thomas suggests the lack of response could be due to a lack of interest or a poorly designed advertising message, as opposed to an inadequate medium.

Thomas argues that upholding California’s law could encourage speech restrictions that go far beyond the abortion issue. “Professional speech” is “a difficult category to define with precision,” he writes, and “as defined by the courts of appeals, the professional-speech doctrine would cover a wide array of individuals,” including truck drivers, bartenders, and barbers. Basically, the lower courts have said a line of work becomes a “profession” when the state decides to require a license for it. “But that,” warns Thomas, “gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”

Viewpoint Discrimination?

When it comes to unlicensed crisis pregnancy centers, the burden is on California “to prove that the unlicensed notice” it would require “is neither unjustified nor unduly burdensome,” writes Thomas. “It has not met its burden.”

California’s stated reason for this part of the FACT Act was to make sure pregnant women “know when they are getting medical care from licensed professionals.” But during oral arguments, the state’s lawyers contradicted this justification, saying pregnant women entering these facilities generally know they are not places for professional medical care. The centers do offer free access to pregnancy tests and other attractive (nonmedical) services, such as religion-based counseling and a free store with gently used baby clothes.

Making such centers post “a government-scripted, speaker-based disclosure” on site and in all advertisements (regardless of what else they do or don’t say) “unduly burdens protected speech” by “impos[ing] a requirement that is wholly disconnected from California’s informational interest,” the Court says. Furthermore, Thomas observes, the fact that the rule applies to pregnancy clinics but not family planning centers casts doubt on California’s claim that it is not discriminating based on viewpoint.

In his concurring opinion, Kennedy underlines that point, writing that it does “appear that viewpoint discrimination is inherent in the design and structure” of the FACT Act. Kennedy continues (citations omitted):

This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.

‘Many Ordinary Disclosure Laws’ Could Be Deemed Unconstitutional

Although the majority’s opinion seems to side with the anti-abortion movement, it could spell trouble for the “informed consent” laws that pro-life activists favor, such as the law that spawned Planned Parenthood v. Casey or laws requiring that women seeking abortions hear about adoption options. Thomas et al. suggest these situations are different, as women come to the pregnancy centers to hear options about their pregnancy, not get a medical procedure. But Breyer’s dissent makes a convincing argument that this distinction is not relevant.

“No one doubts that choosing an abortion is a medical procedure that involves certain health risks,” writes Breyer. “But the same is true of carrying a child to term and giving birth,” which is why “prenatal care often involves testing for anemia, infections, measles, chicken pox, genetic disorders, diabetes, pneumonia, urinary tract infections, preeclampsia, and hosts of other medical conditions.” And “childbirth itself, directly or through pain management, risks harms of various kinds,” including a risk of death 14 times as high as the risk associated with abortion.

Breyer argues that the implications of the Court’s decision go far beyond abortion and reproductive care. “Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation,” he writes. “Virtually every disclosure law could be considered ‘content based,’ for virtually every disclosure law requires individuals ‘to speak a particular message.'”

The dissenting justices see that as an undesirable and dangerous development. But libertarian-leaning people might take comfort in their analysis of the majority’s opinion. Breyer et al. suggest that the Court’s ruling could spell the end for all sorts of state-mandated disclosures. “Many ordinary disclosure laws would fall outside the majority’s exceptions for disclosures related to the professional’s own services or conduct,” Breyer writes. That means many ordinary disclosure laws could be declared unconstitutional.

“Historically, the Court has been wary of claims that regulation of business activity, particularly health-related activity, violates the Constitution,” Breyer says. For more than 100 years, “ordinary economic and social legislation has been thought to raise little constitutional concern.”

“Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech,” the dissenters warn. But perhaps the majority decision simply paves the way to an understanding of free speech that does not yield so easily to the government’s whims.

It’s the end of an era at the U.S. Supreme Court. Today Justice Anthony Kennedy announced his retirement.

In a letter sent this afternoon to President Donald Trump, Kennedy announced that “effective July 31 of this year,” he will “end his regular active status as an Associate Justice of the Supreme Court.” “Please permit me by this letter,” Kennedy wrote, “to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.”

Appointed to the Supreme Court in 1987 by President Ronald Reagan, Kennedy’s impact on American law and politics has been almost beyond all reckoning. From the battles over gay rights, abortion, and affirmative action, to the clashes over gun control, campaign finance, and health care reform, Kennedy’s fingerprints are everywhere. He is perhaps the single most influential jurist alive today and he will surely go down in American legal history as one of the most influential justices to serve on the high court.

Perhaps his most notable contribution came in the area of gay rights. Kennedy is and will remain a hero to many for his authorship of all four of the Supreme Court’s great decisions affirming the fundamental rights of gay people. In Romer v. Evans (1996), Kennedy led the Court in overturning a Colorado constitutional amendment that barred state officials from taking any action designed to protect gays from discrimination. In Lawrence v. Texas (2003), Kennedy led the Court in overturning that state’s ban on “homosexual conduct.” In United States v. Windsor (2013), Kennedy led the Court in invalidating a central part of the Defense of Marriage Act. Finally, in Obergefell v. Hodges (2015), he led the Court in recognizing a constitutional right to gay marriage.

On the hot button issue of abortion, Kennedy managed to alternately hearten and dispirit both sides of the debate. In Planned Parenthood v. Casey (1992), Kennedy joined the plurality opinion which is widely credited with saving Roe v. Wade from being overturned. Casey reaffirmed that abortion is a fundamental right and held that state regulations many not “impose an undue burden on the right.” Yet in Gonzales v. Carhart (2007), Kennedy wrote the majority opinion upholding the 2003 Partial-Birth Abortion Ban Act signed by President George W. Bush. More recently, Kennedy joined Justice Stephen Breyer’s opinion in Whole Woman’s Health v. Hellerstedt (2016), which held that Texas exceeded its lawful regulatory power when it imposed certain onerous health and safety restrictions on abortion clinics and providers.

As a moderate conservative with liberal tendencies, Kennedy often found himself casting the tie-breaking vote in such closely divided cases. That gave him tremendous influence over the direction of American law.

That influence came with a certain price. Over the years, Kennedy has been denounced by every major faction in American politics. In conservative circles, for example, he has been keelhauled as a reckless judicial activist who “invented” a right to gay marriage. Liberals, meanwhile, have burned him in effigy as the unwitting mouthpiece for corporate oligarchs thanks to his majority opinion in the Citizens United case. And among libertarians, Kennedy has been damned as the fair-weather federalist who torpedoed the rights of local medical marijuana users in favor of a federal drug control scheme. Libertarians will also point out that Kennedy joined the majority opinion that unleashed the forces of eminent domain abuse in Kelo v. City of New London (2005).

To say the least, Kennedy’s jurisprudence defies easy categorization. Legal scholars will be arguing about it for a long time to come.

Kennedy’s retirement comes at a loaded moment in American politics. As things stand now, Senate Republicans have the votes—but just barely—to approve whatever nominee President Trump puts forward as a replacement. But what if the Republican ranks don’t hold?

And then of course there are the Democrats, who will undoubtedly mount a massive political attack on whatever nominee Trump puts forward.

In short, thanks to Kennedy’s retirement, all hell is about to break loose.

Anti-development activists in San Francisco are raising an increasingly ridiculous set of objections to prevent the owner of a laundromat in the city’s Mission District from converting his building into an apartment complex.

When Reason last spoke with Robert Tillman in February, the city of San Francisco was demanding that he study the historical significance of his coin-operated laundry before he be allowed to demolish it and put up a 75-unit, mixed-use housing development.

Tillman consented, paying $23,000 for a 135-page report which determined, several months later, that his property was not in fact a historic resource. In a sane world Tillman would be allowed to proceed with his project. In San Francisco, he is now being asked to perform yet another study, this time to measure the effect of shadow on a nearby school.

“You could just as easily ask me to do a study on the breakfast eating habits of the kids, or whether the building might affect their texting use,” says Tillman.

Two shadow studies have already been conducted, finding that Tillman’s project, if built, would cast shadow on a quarter of the playground of the nearby Zaida T. Rodriguez school for two hours a day.

According to Mission District activists from the city-recognized Latino cultural district Calle 24 however, neither study spent enough time considering the developmental impacts of asking children to spend recess in the shade.

“We know that the children will be forced to play in the shadows,” said one impassioned activist at a recent public hearing on the project. “Whatever damage that is done to these children by the project will be permanent, irreversible, and detrimental.” Said another, “we need housing, but let’s get busy and creative. This project is not creative. It’s not even respecting shadows.”

In June these activists filed an environmental appeal asking for the third shadow study.

Last Tuesday, the city’s Board of Supervisors led by Supervisor Hillary Ronen (D–Mission District) sided with these activists, mandating that another study be done before Tillman be allowed to proceed with building an otherwise zone-compliant housing project that would create 75 apartment units in a city suffering from a severe housing shortage.

“If what they want to do is say ‘ah well we want to actually delay your project while we do another study, my answer is no,” he tells Reason. “My answer is I’m going to court.”

Tillman says that this latest delay is a violation of the laws governing the environmental review process in San Francisco, and that he plans on suing. On his side are the very bureaucrats tasked with reviewing and approving his project.

The environmental review process Tillman went through is governed by the California Environmental Quality Act (CEQA), which requires that new developments like his be studied for any potential environmental impacts they might have.

The list of possible impacts is long, as is the CEQA review process itself. This is especially true in San Francisco, where local law requires additional impacts be studied beyond what is demanded by state law. Making the process longer still is the ability of parties to appeal an environmental review they feel did not significantly examine this or that impact.

For the last six months Tillman has been delayed by these appeals, the first one demanding that potential historic impacts be studied more thoroughly, and second asking the same of potential shadow impacts.

The problem is that the shadow Tillman’s theoretical apartments would throw off is not an impact either CEQA or San Francisco law requires him to study.

According to the city’s Planning Department, shadow is only considered an environmental impact when it might fall on a public park maintained by the city’s Parks Department. Since the previous two shadow studies performed on Tillman’s project found that his project would only cast shadow on the nearby Zaida T. Rodriguez school playground owned by the city’s school district, he is not required to mitigate this impact.

For this reason, the Planning Department recommended that Calle 24’s appeal be rejected.

Nevertheless Ronan pushed her colleagues to accept the appeal, arguing that the Zaida T. Rodriguez playground could be made accessible to the general public at some point, thus warranting further shadow study.

“What they did is they basically made up a CEQA effect out of whole cloth,” says Tillman, who was left flabbergasted by the Board of Supervisors decision.

The endless series of studies he’s been forced to complete, he maintains, has a lot more to do with extracting concessions from him than it does with any actual concern about shadows.

Notably the San Francisco Unified School District—whose kids are supposedly at risk from additional shadows—did not sign on to Calle 24’s appeal. Tillman says no one from the Zaida T. Rodriguez school has ever brought up any concern about shadows from his project.

“What they want to do is use the pressure of the delay to force me to sell below market value which I’m not going to do,” says Tillman. “It’s kind of the old-time equivalent of ‘nice little project you got there, it would be a shame if something happened to it.'”

Tillman says he would be willing to sell his land, but only for fair market value.

Mission activist groups opposed to Tillman’s project have been explicit about their desire to turn his laundromat into an affordable housing project. This includes the Mission Economic Development Agency (MEDA)—a non-profit affordable housing developer—which wrote in a 2016 blog post, “it was good news to hear Tillman express that he would consider selling his property to the City, so that the latter could then designate it for 100 percent affordable housing. The bad news was Tillman’s price of $250,000 per unit”—a price they are unwilling to pay.

Tillman says that on the morning of last Tuesday’s Board of Supervisors hearing where the CEQA appeal against his project was considered, he received a phone call from Ronen asking him once again if he’d be willing to sell his land. He said yes on the condition that he be paid fair market value for it. He then spoke with a representative from Calle 24 where a similar conversation played out; Tillman expressing openness to selling his land but Calle 24 not willing or able to pay his asking price.

Having reached an impasse, Calle 24 representatives lined up before the Board of Supervisors several hours later to denounce the shadow impacts from Tillman’s project, and the Board, led by Ronan, voted to delay his project.

These kinds of delays have proven effective in shaking down other Mission developers. For instance, about a block from Tillman’s laundromat is the site of a planned 157-unit housing development being built by apartment developer Lennar Multifamily Communities. In order to get approval for its project Lennar—that had already been hamstrung by delays—hammered out a deal with Calle 24 and Ronen to rent out 25 percent of its new apartment units at below market value, and pay $1 million to Calle 24.

So far Tillman has refused to bend. He says that because he owns his land outright, and still has a profitable business in the laundromat, it is cheaper for him to go through litigation. As a one-off developer, he is less concerned about pissing off the powers that be.

Indeed, isolated from the typical pressures faced by more professional developers, Tillman has almost become a housing activist in his own right. The experience however has left him jaded about his or anyone’s ability to chance San Francisco’s steadfast refusal to allow people to build housing for those who want to live there.

“There actually was a time when I could change things. I’ve come to the conclusion that I won’t, so many I’m just trying to get my project through,” he says.

In that sense at least he is optimistic. The city attorney must provide Tillman with the legal reasoning for the latest delay within a month. Once that is unveiled, Tillman says he’ll file his lawsuit, and could expect a decision by March 2019.

Provided the court sides with him, he will at last be allowed to begin construction.