Tag: in-the-news

Restricting Injunctions to Libels on Matters of Private Concern?

[You might also read my earlier posts on the subject,

Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]

Some courts allow injunctions only as to speech on matters of “private concern”; Professor Ardia has recently argued the same. Such a rule would at least diminish the risk of criminal punishment (via contempt) for speech on public matters. And indeed speech on matters of supposedly private concern is already treated differently by libel law: Such speech can lead to punitive and presumed damages even without a showing of “actual malice”; it’s also possible that states may require defendants in private-concern cases to prove their statements were true rather than requiring plaintiffs to prove falsity.

But unfortunately, despite decades of trying, courts have done a poor job of defining what constitutes a matter of public concern. (Nat Stern discussed this in detail in a 2000 article, and I have as well in a more recent piece.)

And that is so in the very class of cases where injunctions against libel seem most common: claims that businesses or professionals have defrauded or mistreated consumers. The Ninth Circuit, for instance, has held that a jet ski seller’s supposed refusal to give a refund for an allegedly defective product was a matter of public concern; it also held the same for a claim that a mobile home park operator charged unduly high rents. Other courts have taken a similar view. But others disagree.

The same is so for another common category of libels that often lead to injunctions: accusations of crime. The Ninth Circuit, for instance, has held that, “[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern,” in a case where a solo blogger accused a court-appointed trustee of tax fraud in a bankruptcy reorganization of a company. The California Court of Appeal likewise held that including plaintiff’s name in a leaflet containing a list of alleged rapists was speech on a matter of public concern. The New Jersey Supreme Court, on the other hand, held that a person’s online allegation that his uncle had molested him when the person was a child was a matter of purely “private concern” for libel law purposes; the Iowa Supreme Court held likewise in a similar case.

Likewise, consider three cases dealing with allegations of substance abuse. Ayala v. Washington held that a letter to an airline alleging that one of its pilots—the defendant’s ex-boyfriend—was a marijuana user was merely on a subject of “private concern.” Starrett v. Wadley, on the other hand, held that an allegation that a supervisor at a tax assessor’s office had an alcohol problem was a matter of “public concern,” because it revealed improper behavior by a government official. And Veilleux v. NBC expressly rejected liability for true reports of drug use by a truck driver under the disclosure of private facts tort, concluding that the named driver’s “drug test results were of legitimate public concern.”

What’s more, many cases seem to suggest that the public/private concern line should turn on “context, form, and content,” without much elaboration of how those factors should be evaluated. Thus, for instance, Dun & Bradstreet v. Greenmoss Builders concluded that an allegation in a credit report that a small business had declared bankruptcy was not a matter of public concern, partly because the report was sent only to a handful of subscribers. Perhaps, then, the same report posted to the world at large, even just on a gripe site, might be on a matter of public concern—or would it be? What if the business were larger, so that more creditors, employees, and consumers might be affected by the supposed bankruptcy? It’s not clear how courts are to draw this line.

Similarly, Connick v. Myers concluded that questions about whether prosecutors had lost confidence in the D.A. and his top assistants were on not on a matter of public concern. Surely, though, if a newspaper had published a story about the same matter, few people would be surprised; the underlying topic is indeed a public matter, since it bears on the conduct of a powerful government department and the competence of important government officials.

Rather, the Court’s focus seemed to be on the speakers being employees rather than outsiders, and on their motivation apparently stemming from their own personal interests. Perhaps, then, the same statements posted by someone else, with a different motive, might be seen as matters of public concern. But again it’s not obvious how courts draw such distinctions.

In some situations, courts might be able to confidently say that speech is just a matter of private concern—allegations of promiscuity, noncriminal adultery, and the like might qualify. But in many cases, deciding whether particular accusations are on a matter of private concern may be quite hard, not just because the law is unsettled but because the vagueness of the underlying test is likely to continue leading to uncertainty.

 

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Could This California Environmental Law Be the Cannabis Industry’s ‘Silent Killer’?

Given how often California’s regulatory state ensnares mundane things like plastic straws and apartment buildings, it should come as no surprise that the state’s now-legal recreational cannabis industry is having a hell of a time navigating a new world of red tape and restrictions. Causing particular grief is one of the Golden State’s more infamous laws: the California Environmental Quality Act (CEQA).

Passed in 1970 and signed into law by famed anti-pot scold and then-Gov. Ronald Reagan, CEQA has developed a reputation as the NIMBY’s weapon of choice for killing off disfavored developments. The law is now being used to frustrate cannabis entrepreneurs who are trying to go legit.

“I like to call [CEQA] the silent killer,” says Pamela Epstein, an environmental lawyer and founder of the cannabis consultancy firm Green Wise.  Other cannabis consultants have said the law could cause an “extinction event” for the cannabis industry.

Understanding how one law can be so problematic requires understanding a bit about how CEQA works.

In brief, CEQA says that any project with the potential to change the physical environment of the state and which will undergo discretionary review by a government body must submit extensive studies to assess potential environmental impacts that might need to be mitigated.

As written, the law requires just about every construction project in California to undergo some sort of environmental review. Crucially for the cannabis industry, this requirement also applies to local zoning ordinances that dictate where new developments can build.

The law also gives third parties who feel a particular project or ordinance has received insufficient environmental review the ability to appeal. Should that appeal be rejected, these third parties can use the law to sue.

Given the huge of number of things that count as a project under CEQA, the long list of environmental impacts the law requires to be examined, and the low cost of filing an appeal, the law is often used as a weapon to delay or stop disfavored projects (a few of which Reason has profiled).

In the case of cannabis, CEQA has already sparked a number of lawsuits from anti-cannabis groups alleging that local governments performed inadequate environmental study before approving their own cannabis regulations.

In January of this year, Trinity County—part of the famed ‘Emerald Triangle’, so-named for its legendary cannabis grows—was sued by a local NIMBY group arguing the county’s ordinance governing marijuana cultivators lacked sufficient environmental review. The year before, San Mateo County, just south of San Francisco, was hit with a similar lawsuit.

San Mateo County buckled quickly, agreeing to a moratorium on the issuance of new cannabis licenses. Trinity County is being a bit more heroic, deciding to fight its own anti-cannabis lawsuit in court.

Individual businesses have been tied up by these lawsuits as well, says Epstein. “I have a client going through this right now,” she tells Reason. “They did traffic impact analysis, they got an air quality engineer, and still the NIMBYs decided to sue because they knew better, and didn’t want this dispensary there.”

To its credit, the California Legislature tried to head off a lot of these problems by passing an omnibus cannabis bill in 2017 that, among other things, gave local governments the power to exempt their own cannabis ordinances from CEQA.

In theory, this was supposed to make it easier for local governments to quickly set up regulatory regimes for the newly legal cannabis industry while avoiding the onerous environmental study requirements of CEQA.

In practice, it’s made things worse for a lot of cannabis businesses.

That 2017 state law said that even if a local government did exempt its own cannabis regulations from CEQA, it still had to require each individual business to go through the CEQA process when they apply for a local permit.

Unfortunately, a lot of localities shirked this requirement, instead just approving cannabis permit applications without subjecting them to any sort of CEQA review. That, in turn, has caused problems for these businesses as they apply for permits at the state level, where CEQA is sacrosanct.

Beginning in late 2018, state regulators started issuing permanent licenses for cannabis operations, which are supposed to replace the temporary licenses these businesses received as a stopgap measure. About 10,000 of those temporary permits are supposed to expire this year.

The trouble is that in order to get a permanent state license, a business has to show compliance with CEQA—something that wasn’t required to get a temporary state license or by some local regulators. In short, these folks were likely under the impression that everything they did to get their business open would be enough to keep it open.

Instead, many businesses using temporary licenses have applied for a permanent state license only to be told that they still need to go through a possibly-year long CEQA process (longer still if some NIMBY decides to sue) before they can be approved, during which time their temporary license will likely expire. Without some kind of valid state license, cannabis operators will have to shut down.

In 2018, the state legislature tried to fix this problem, too, by allowing state agencies to issue provisional licenses to anyone that could show they were in the process of coming into compliance with CEQA. The idea was to use these provisional licenses as a bridge for operators whose temporary licenses will expire soon, but who still have a lot of work to do before they can qualify for a permanent license.

And indeed, these provisionals have proven a lifeline for a lot of businesses that were out of compliance with CEQA. However, they’ve done nothing to help those businesses who were forced to go through the CEQA process at the local level.

Because those businesses are already CEQA-compliant, they’re ineligible for provisional licenses. They also can’t get a permanent license because there is a huge backlog of permanent license applications at the state level.

To give you a scale of the problem, the California Department of Food and Agriculture (CFDA)—which is responsible for licensing cultivators—has issued a total of 96 permanent cultivation licenses, according to the department’s online database, and another 695 provisional licenses since late 2018. Yet on April 20 of this year alone—when stoners across the state will be lighting up—some 1,200 temporary cultivation licenses are set to expire.

“We have several hundred, if not thousands, who are not eligible for provisional [licenses] because they can show CEQA compliance,” says Epstein. Many of those businesses will be forced to shut down once their temporary licenses expire. “It’s like they want you to be compliant but compliance is the thing that is hamstringing some of these operators.”

Industry consultants say a scenario in which all these businesses end up in legal limbo would be an “extinction event” for cannabis businesses.

To make matters worse, Epstein speculates that state regulators are prioritizing provisional license applications because they only require a showing that a cannabis operation is trying to bring itself into CEQA compliance; it’s more time and resource-intensive to verify that a business is actually fully compliant.

Currently, there’s a bill pending in the legislature that would allow for temporary licenses to be extended while state regulators get to work processing applications, but it has yet to pass. Even if it does, its own sponsor describes it as a “band-aid” intended only to give state agencies a little breathing room.

If all of this sounds like a huge, confusing mess to you, that’s because it is. California is proving an extreme example of a problem bedeviling all states that have legalized recreational marijuana: how to quickly transform a loosely or mostly unregulated black market into a heavily regulated legal market one in a very short period of time.

This process has been made all the worse by California’s environmental review law, which has empowered recalcitrant anti-cannabis NIMBYs to bog down local regulations in litigation, and is causing bureaucratic gridlock at the state level.

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The Mueller Report Just Dropped. Cue the Hot Takes!

Following a nearly two-year investigation into Russian meddling in the 2016 election, Special Counsel Robert Mueller has released 448 pages of his findings, which you can read here.

Reason‘s Scott Shackford is poring through the report and will be writing about it later today. As I have yet to read the report in its entirety, I’ll refrain from any analysis. But here are a few potentially noteworthy passages that CNN has highlighted.

On alleged Trump campaign collusion with Russia:

Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in the election interference activities.

On alleged obstruction of justice by President Donald Trump:

If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

And on whether Congress can find if Trump obstructed justice:

With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has the authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.

Stay tuned.

 

 

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Bill Barr ‘Disagreed’ with Some of Mueller’s ‘Legal Theories’ on Obstruction

Special Counsel Robert Mueller’s report on Russian meddling in the 2016 election details 10 episodes involving possible attempts by President Donald Trump to obstruct justice, Attorney General William Barr said at a press conference this morning. Barr also said that Mueller “did not find any conspiracy to violate U.S. law involving Russia-linked persons and any persons associated with the Trump campaign.”

“So that is the bottom line. After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the special counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes,” the attorney general added.

And here’s the relevant portion of Barr’s remarks about the “10 episodes” that Mueller investigated, which are likely to drive the news cycle as a redacted version of Mueller’s report was released later today:

The report recounts ten episodes involving the president and discusses potential legal theories for connecting these actions to elements of an obstruction offense.

After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other department lawyers, the deputy attorney general and I concluded that the evidence developed by the special counsel is not sufficient to establish that the president committed an obstruction-of-justice offense.

Although the deputy attorney general and I disagreed with some of the special counsel’s legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law, we did not rely solely on that in making our decision. Instead, we accepted the special counsel’s legal framework for purposes of our analysis and evaluated the evidence as presented by the special counsel in reaching our conclusion.

So why did Barr decide not to pursue obstruction of charges? It’s all about Trump’s “intent,” he said. “The president took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation,” Barr explained. “Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the president had a corrupt intent to obstruct the investigation.”

The attorney general also claimed that “Trump faced an unprecedented situation,” with “relentless speculation in the news media” regarding his “personal culpability.”

“There is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” Barr said.

As Reason‘s Scott Shackford explained Wednesday, federal prosecutors often use obstruction of justice to get convictions. If they can’t find evidence of an underlying crime, they look to prove process crimes (such as lying to FBI) instead. This is what happened to Martha Stewart. Back when he was a federal prosecutor, former FBI Director James Comey indicted her for obstructing justice during an insider trading investigation. Stewart was not actually charged with insider trading, though she went to prison anyway.

So if Trump did indeed not collude with Russia, it’s a good thing that he won’t face charges for any possible process crimes. As Shackford noted: “Some people really, really want to believe that Trump must have done something to have kept Mueller from finding evidence of coordination with the Russians. So they are invested in trying to use obstruction to accomplish what the primary investigation could not: unseat Trump.”

One other noteworthy part of Mueller’s press conference had to do with the Russian GRU intelligence agency’s efforts to hack the Democratic National Committee’s servers and publish the stolen information. “The special counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts,” Barr said. “Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.”

This, as it happens, is what federal prosecutors are charging WikiLeaks founder Julian Assange with doing in an unrelated case. They say he helped Chelsea Manning hack government computers. Publishing the resulting information, as Barr pointed, is not in itself a crime.

The Mueller report was released to the public today. Reason‘s Shackford will be analyzing its contents and writing about them, so stay tuned.

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The Mueller Report Isn’t Out Yet, but the Spin War Has Already Begun: Reason Roundup

It’s Mueller Report Day, which for many media and politics types is apparently like Christmas, Election Night, Rex Manning Day, and Free Burrito Day all wrapped in one. People are professing excitement! Vindication! That either certain things will happen or other things will! (That last bit is the expert observation of venerable MSNBC host Chris Matthews.)

This morning, Attorney General William Barr is holding a press conference before the highly anticipated, lightly redacted document gets released to the internet and Congress. Though Barr has summarized Special Counsel Robert Muller’s findings, there are still heretofore unknown facts that could come out. But there’s zero mystery about the ways the warring factions are going to frame this, no matter what the report actually says or doesn’t say.

House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer are demanding that Mueller himself come give them the CliffsNotes, since Barr’s testimony before Congress last week was “irresponsible.” What was irresponsible about it the two Democratic leaders do not say, leaving the impression the only “responsible” outcome in their book would be for Barr, or Mueller, to have delivered the results of an entirely different report (preferably one that provides grounds for impeaching the president).

“The American people deserve to hear the truth,” state Pelosi and Schumer—right after calling it “indefensible” that Barr plans to hold a press conference to talk directly about the report. Apparently the people only deserve to hear “the truth” once that truth has been filtered through Democratic leadership.

Other Democrats have also been asking Barr to cancel the “inappropriate” press conference and “let the report speak for itself.” But speaking for itself might be hard over all the spin both the left and the right are already putting up.

For instance, here’s the president tweeting this morning:

Those without an ideological stake in the game are still finding ways to milk this moment. The bookstore chain Barnes and Noble has already started selling pre-order ebooks of the not-yet-released report.

FREE MINDS

European regulators terrorize the internet again. The European Union just voted again to require companies to take down “terrorist content” within one hour of it being posted or face sanctions. There are two different versions of this bad plan that must now be reconciled, but “either way, this whole concept is a very poorly thought out knee-jerk moral panic from people scared of the internet and who don’t understand how it works,” writes Mike Masnick. More here.

FREE MARKETS

Meme Employees International Union? A group of Instagram users thinks they should somehow be paid for using the free platform to promote themselves. To this end, they have started union-style organizing. “Solidarity actions with memers,” says the IG Meme Union Local 69-420 Instagram page. “Memers of the world unite.”

The union “will probably never be recognized by the National Labor Relations Board, but organizers say it can still act as a union for all intents and purposes,” writes Taylor Lorenz at The Atlantic.

“We’re calling it a union and doing union-organizing tactics,” organizer Paul Praindo told Lorenz. “We stand in firm support of others who are working to organize anti-labor industries. We think these movements mark the beginning of a labor renaissance.”

QUICK HITS

  • In a book released just last year, Sen. Kamala Harris stands by her former attempts to jail the parents of truant schoolchildren, going so far as to state that one of the prime reasons she ran for attorney general of California was to take this truancy-initiative statewide. But after taking heat from pretty much all sides over that position, she claims that she now regrets her truancy initiatives.
  • Bill Weld has picked a mascot:

 

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Veil-Wearing Witness’s Religious Concerns Trump Public Trial Rights

Tyreese Copper was convicted of murder and sentenced to life in prison. (This comes from Commonwealth v. Copper, which was decided in September 2018, but I just learned about it from a follow-up federal opinion filed early this month.) At trial, eyewitness Davina Sparks was called to testify; but she was a veil-wearing Muslim woman, and (to quote the government’s brief),

[C]ounsel objected to Ms. Sparks testifying while wearing her Muslim garb that covered her face. Ms. Sparks refused to remove the garb, citing her religion as the reason for her refusal. Out of deference to Ms. Sparks’s religious beliefs, the court decided to clear the courtroom for Ms. Sparks to testify without her face garb “so I can at least have her taking off her covering only in the presence of the people who are absolutely essential to being here,” i.e. the jury, court staff, defense counsel, and defendant. Trial counsel did not object to the court’s proposal. Ms. Sparks agreed to remove her face garb in a courtroom cleared of spectators.

Eventually, Copper sought to overturn his conviction on the grounds that his lawyer was ineffective for failing to object to a violation of Copper’s Public Trial Clause rights. But a three-judge panel of the Pennsylvania Superior Court said no, concluding that the judge’s decision didn’t violate those rights:

“[T]he right to a public trial is not absolute; rather, it must be considered in relationship to other important interests….” Commonwealth v. Conde (Pa. Super. 2003). We have permitted exclusion orders for “the protection of a witness from embarrassment or emotional disturbance.” Moreover, “an exclusion order which is designed to protect a witness from emotional trauma will not necessarily be constitutionally infirm if it excludes the entire public for a limited time.”

Based upon the foregoing, we discern no abuse of discretion in excluding spectators from the courtroom while Ms. Sparks testified…. [I]n striking a balance between Appellant’s right to a public trial and the need to respect the witness’ religious beliefs, the trial court cleared the courtroom, but only for the duration of Ms. Sparks’ testimony. The exclusion was limited in duration to protect the witness from emotional disturbance, as well as to protect Appellant’s right to confront her and to allow the jury to make effective credibility determinations….

Note also that the First Amendment has been read as securing the public’s right of access to court hearings (and court records), to much the same degree as the Public Trial Clause secures a criminal defendant’s right to have the trial be public. The court’s reasoning would thus suggest that the witness’s felt religious obligation to have as few men as possible see her unveiled trumps this First Amendment right of access as well as the Public Trial Clause.

Is this right? The seemingly unlimited command of the Public Trial Clause suggests that it isn’t, but there are indeed lower court cases that do allow that command to be trumped in some instances. Thus, for instance, Rovinsky v. McKaskle (5th Cir. 1984), stated,

The right to a public trial is not absolute: limitations on public attendance may be imposed so long as they are no more exclusive than necessary to protect a state interest that outweighs the defendant’s interest in public scrutiny of the proceedings. Indeed, the protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify is a state interest sufficiently weighty to justify partial or complete exclusion of the press and public.

Classic examples are (to borrow from a list in another case), “to protect dignity of witness in rape trial,” “to protect witness with fear of testifying in public,” “to protect witness afraid of testifying,” “to protect witnesses from intimidation,” to protect child witnesses in rape trial from embarrassment,” “to protect witness and his family where safety threatened,” “to preserve confidentiality of undercover agents in narcotics case,” and
“to protect from disclosure of trade secrets.”

So the question, under these cases, is whether a witness’s reluctance to testify in public for religious reasons should be treated analogously to a witness’s reluctance to testify for more commonly felt secular reasons (such as fear of retaliation or embarrassment related to testifying about sex crimes). Perhaps the closest analogy is the “fear of testifying in public” case (U.S. v. Eisner (6th Cir. 1976)), where the court approved of an exclusion based on the witness’s relatively idiosyncratic apparent psychological condition (the judge “had apparently determined that the witness was afraid of any spectator being present in the courtroom”); but perhaps that case, too, went too far.

Since I’m not a Public Trial Clause expert, I asked a couple of people who were, and they graciously responded and allowed me to quote them. From Prof. Stephen Smith (Santa Clara Univ.):

In fact, this is not a run-of-the-mill closure case, because it’s in Pennsylvania. What does that mean? It appears that Pennsylvania is alone in ignoring the Supreme Court’s public trial jurisprudence. As the Third Circuit recently said, in an unpublished case, “[w]e are deeply concerned that Pennsylvania courts, including the Superior Court in Tucker’s case, are not applying Waller when analyzing defendants’ Sixth Amendment public-trial claims.” Tucker v. Superintendent Graterford SCI, 677 F. App’x 768, 776 (3d Cir.).

The Supreme Court’s Waller case created a strict scrutiny regime for Sixth Amendment public trial claims (borrowed from the First Amendment right of access to courts cases), but it’s an odd one in application. Cases applying Waller often uphold closure orders, so it’s an area where “fatal in fact” is not true. Nonetheless, it is, at least nominally, strict scrutiny. Pennsylvania’s “abuse of discretion” standard can’t really be reconciled with that.

There is some disagreement in lower courts about whether Waller‘s test must be applied in cases of “partial” or “trivial” closures—excluding only some spectators, or all for a short time, or what have you. I think it’s a nice bright-line to apply it in all cases, especially since closures will often survive passing through its not-terribly-hot crucible. In any event, closure of the entire testimony of a witness seems like it should trigger any standard for whether a closure has occurred.

Finally, I should note that while Pennsylvania is a linguistic or formal rogue here, the sort of analysis your excerpt engages in is very similar in kind to that mandated by Waller. It looks at the strength of the interest (religious reservations), it looks at how broad the closure has to be (duration of one witness’s testimony), it considers alternatives (remove veil or not, with populated courtroom or not), and it seems to make specific findings. But if words matter, reviewing this for abuse of discretion rather than satisfying strict scrutiny should have some effect on result—one should be more forgiving than the other.

In terms of these facts and comparisons to other cases, the classic “overriding interest” is witness intimidation. You can exclude someone from the courtroom (“close it” to them) if he is looking at a witness and running his finger across his throat. But it’s not that limited. Someone’s personal discomfort *may* be sufficient, but the discomfort cases have been pretty extreme—closing courtrooms for child victims testifying in sexual abuse cases. The question is how solicitous a court should be of discomfort arising from religious compunctions.

And here’s the reaction of Prof. Jocelyn Simonson (Brooklyn):

[T]he court has an ongoing obligation to ensure open courtrooms, to consider alternatives to closure, and to make findings on the record before closing the courtroom. It’s hard to tell from this case whether that happened …. If there were no findings and no explicit consideration of alternatives, then this should not fly (and the attorney should have asked asked for them). If there were, though, then perhaps the court acted within constitutional boundaries.

As for alternatives, why not have the witness face the jury with her back to the audience (and move the defendant’s chair for confrontation purposes)? Of course it all depends on specific courtrooms, but full closure is a last resort.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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I Gave My Dog CBD Oil To Calm Him Down and Help His Separation Anxiety

The first time I heard about cannabis products for dogs was when a video of Permit Patty, the CEO of a pet cannabusiness, went viral after she called the cops on a young girl selling water. Since then, I’ve been intrigued by the idea of pets using drugs. So I decided to volunteer my own dog for a Weed Week assignment: I was going to see how he responded to cannabidiol (CBD). 

I adopted Bishop from Davidson County Animal Control last August when he was about a year old. Someone found him running around the Nashville streets and sent him off to the shelter. No one claimed him for a month, so I decided to make him a Davis after falling in love with his face online. Shortly after the adoption, I signed him up for basic training. We had some rough patches along the way, but he’s been a different dog since his graduation and I worry a lot less when we leave the apartment together.

Bishop Davis after graduating the first level of behavior school.

It’s when I leave him in the apartment that the problems begin.

Bishop is crate-trained, so I put him in his nook with some toys, treats, and calming music if I have to leave the apartment for a short period. If I anticipate a longer time away from home, I let him roam the apartment with toys, treats, and calming music. (I’ve read that crating a dog for too long can have detrimental effects on its mental state.) But each time I leave Bishop to roam free, I almost always hear clawing at the door and crying moments after I shut it.

When I come back, it always looks as though a tornado flew around the room. Bishop knocks down furniture and tears through books and papers. One time I returned to find that Bishop had managed to unlock the front door. While some of this could be chalked up to him being a puppy in need of some more training, I wondered if CBD could help him. CBD has only been approved by the Food and Drug Administration as a therapy for two types of treatment-resistant epilepsy in children, but a growing body of research suggests it can treat anxiety as well. 

Perhaps it could even treat anxiety in a dog.

The prep: I reached out to Bishop’s trainer and to Jason Amatucci of VA Hemp for some thoughts on my assignment.

“We have found that many pet owners that use CBD for their cats and dogs really love it and say it works for tackling problem behavior or just giving their pet a better sense of overall calm,” Amatucci told me. This is comparable, he explained, to the way CBD can reduce anxiety in humans.

Amatucci noted that unlike CBD, THC is actually quite bad for pets. Should a pet mistakenly consume a product with THC in it, a vet can administer activated charcoal to the animal. He added that while CBD products have a trace of THC, it’s “not at a level which would cause toxicity.”

I also asked Bishop’s trainer about using CBD products for pet anxiety since he knows my dog’s temperament the best. Essentially, he told me that he’s heard of other pet owners using it with success. And since he didn’t say anything bad about using it, I decided to continue with the project.

I looked up local CBD shops in Nashville and found no shortage of retailers that carried pet-specific products. I decided to use an oil since it had more potency and could be delivered on a treat, and chose a formulation that apparently tastes like bacon.

Mmmm, bacon.

Day 1: I decided to take Bishop to the Nashville Cherry Blossom Festival. I woke up early to go to Mass and came back just in time for Bishop’s morning feeding. We had a few hours until we had to meet some friends at the festival.

I grabbed a hard treat and poured a dropper-full of CBD oil on top (the recommended dose was one dropper-full twice a day). I put the treat up to his nose. He sniffed it and turned away.

Lacing his treats.

Oh fudge, I thought.

Bishop will eat anything and everything, except medicine. Bishop is so anti-medicine that his vet once wished me luck when I said I didn’t have anyone to help me pour his eye drops. This was after it took three of us to hold him down in her office so she could administer the first dose.

I mentally kicked myself for not considering this possibility and wondered what to do. Then it hit me that I still hadn’t fed Bishop.

I had him sit and wait while I poured his food in a bowl. Then I placed the laced treat in the middle, hoping he would accidentally eat it.

The sucker ate it.

Later, I filled a backpack with water, a collapsible water bowl, and some training treats, and we made our way downtown to the festival.

On the drive, I wondered what I could expect for the day. Bishop doesn’t bark often, but he can get pretty rowdy if the wrong type of dog passes by. Would the CBD reduce his tendency to lose his mind?

As I wondered this, Bishop was running across the backseat of the car to hang his head out of both windows. Apparently, the oil hadn’t kicked in.

And honestly, it never really seemed like it did.

Bishop did well with the training treats, socialized with the other humans, and didn’t make any attempts to eat food that didn’t belong to him. He even let some of the bigger dogs (his favorite kind) sniff his butt.

The butt-sniffing was about to commence.

But none of this stopped him from freaking out when the wrong sort of dog passed by. He was so crazy that he started to jump on the girls we were hanging out with at the festival. I had to apologize several times and use some basic training tricks to get him to calm down.

The other girls eventually wanted to go up to the observation deck, so I said Bishop and I would take the stairs and meet him there. Halfway up, Bishop’s back legs began to shake.

Oh no, I thought. I’ve poisoned him.

I didn’t actually think that he was having a reaction to the CBD oil, but I always briefly entertain the craziest possibilities when it comes to animals (or babies) doing things that I don’t understand. Following a water break and a quick trip to the bathroom, Bishop felt better. Then we tried to rejoin the girls, and Bishop’s legs started to shake again.

And that’s how I learned that despite our hikes at Percy Warner Park, one of the highest points in Nashville, my dog is actually quite terrified of heights.

After Bishop and I got home, I made some dinner, fed him once again, and crocheted while we watched some movies. I chose not to give Bishop the second dose since he was pretty calm for the rest of the evening.

Day 2: Remembering what happened yesterday, I poured Bishop’s food and placed another laced treat in the very middle. He ate it, but not before taking it out of the bowl to inspect it first. Then my own anxiety began to build up.

Just eat it already.

Today was Sunday Mass, which runs a whole heck of a lot longer than daily Mass. It was time to let Bishop roam the apartment alone with my poor, vulnerable books and furniture.

I got dressed for Mass and positioned the gates of his playpen in such a way that he’d have to grow human legs in order to reach the front door handle. I left some treats around the apartment, put on some calming nature sounds, and sweated bullets while I begged St. Francis and St. Roch to intercede on my behalf while I was gone.

Then I left. I didn’t hear any scratching at the door or crying.

The Palm Sunday Mass was longer than usual. There was the distribution of the palm fronds, a long procession into the church, and the interactive Gospel reading was several pages long instead of several paragraphs. The homily also lasted a bit longer. While everything was beautiful and I left feeling assured about my spiritual life, it didn’t stop me from worrying about my apartment as I drove home.

Once inside, I was thoroughly surprised that other than the barrier having been moved, the floor was clear of paper bits. I mentally prepared myself for the worst of it as I walked towards the main part of my apartment.

Where, it turns out, Bishop was relaxing in his crate.

He raised his head and his ears fell while he looked at me. He only does that when he knows he did something wrong.

I checked the rest of the living room, the dining area, the kitchen, my bedroom, and even the bathroom. I couldn’t believe that everything was untouched. I secretly thanked the oil and the saints while continuing to look for whatever made Bishop’s ears go droopy.

Then I noticed that the blanket I put over my Lovesac was knocked to the floor and there were remnants from Bishop’s toy on top. Considering he is well aware that he’s not supposed to be on there, I concluded that this was the worst of the offenses.

We spent the rest of the day doing some work and getting prepared for the Game of Thrones premiere. I opted against the second dose again because Bishop was otherwise calm.

What did I learn? At the end of the day, I don’t know that the oil had much of an effect on Bishop.

He clearly suffers from some separation anxiety, and he can be aggressive with other dogs. As with humans, drugs can only fix so much of an animal’s psychology. I’m also not sure what I can tell from just a couple of doses. I will admit to hoping that the CBD drops would essentially be a miracle cure. That, after just a dose or two, he wouldn’t be a bad dog ever.

Clearly, CBD is not a miracle cure for rowdy boys.

Still, I’m open to using it again the next time I leave him home alone. After all, with the exception of the playpen and the beanbag, this was the first time Bishop didn’t completely destroy the apartment.

So Bishop can go ahead and enjoy his CBD treats for several Sunday masses to come. As for his behavior when we go out, it looks like I’ll be calling his trainer soon.

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Return of the Reefer-Crazed Killer

Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence, by Alex Berenson, Free Press, 272 pages, $26

“Harry Anslinger might have been a racist jerk,” Alex Berenson writes in his anti-pot polemic Tell Your Children, but “he was right about marijuana.” It’s a bold thesis given some of the things Anslinger said about marijuana while he was running the Federal Bureau of Narcotics.

In a 1934 report to a League of Nations committee, Anslinger wrote that “fifty percent of the violent crimes committed in districts occupied by Mexicans, Turks, Filipinos, Greeks, Spaniards, Latin-Americans and Negroes may be traced to the abuse of marihuana.” He quoted a California police official who said the weed “gives men the lust to kill, unreasonably, without motive—for the sheer sake of murder itself.”

In a 1937, Anslinger warned in The American Magazine that marijuana users “may often develop a delirious rage during which they are temporarily and violently insane,” resulting in “a desire for self-destruction or a persecution complex to be satisfied only by the commission of some heinous crime.” He blamed marijuana for armed robberies, “degenerate sex attacks,” the random killing of an elderly bootblack, cold-blooded murders of police officers, and a rampage in which a young man hacked his entire family to death with an ax.

“How many murders, suicides, robberies, criminal assaults, holdups, burglaries, and deeds of maniacal insanity it causes each year,” Anslinger wrote, “can be only conjectured.” But it was clear, he said, that “there must be constant enforcement and equally constant education against this enemy, which has a record of murder and terror running through the centuries.”

That same year, as Congress was considering a marijuana ban in the guise of a tax bill, Anslinger’s agency told legislators the drug “frequently leads to insanity,” resulting in “revolting crimes.” Anslinger testified that “in some cases one [marijuana] cigarette might develop a homicidal mania” and “all the experts agree that continued use leads to insanity.”

Berenson, a novelist and former New York Times reporter, agrees with Anslinger about pretty much all of that, although he is less inclined to emphasize the ethnicity of reefer-crazed rapists and murderers. In a January Times piece, he complained that he has been “mocked as a modern-day believer in ‘Reefer Madness,’ the notorious 1936 movie that portrays young people descending into insanity and violence after smoking marijuana.” Berenson may protest the association of his name with that piece of propaganda, but he borrowed the original title of the film, Tell Your Children, and slapped it on a book that conveys essentially the same message.

“Marijuana causes psychosis,” Berenson writes. “Psychosis causes violence. The obvious implication is that marijuana causes violence.…The black tide of psychosis and the red tide of violence are rising together on a green wave, slow and steady and certain.” You can start to see why Berenson titled his introduction “Everything You Are About to Read Is True” and felt a need to announce, “This book is a work of nonfiction.”

It is also a work of logical leaps, self-contradiction, misleading glosses, selective quotation, biased evidence gathering, and tendentious interpretation. Yet it has received a credulous reception not just from Fox News but from The New Yorker and Mother Jones. Now that most Americans support marijuana legalization, it seems, Berenson’s rehash of Anslinger’s hoary horror stories counts as a provocative, contrarian take.

Tell Your Children has no end notes or bibliography, which makes it harder than it should be to check Berenson’s claims against his sources. But the way he uses The Health Effects of Cannabis and Cannabinoids, a 2017 report from the National Academies of Sciences, Engineering, and Medicine (NASEM), does not inspire confidence. Regarding the relationship between marijuana and schizophrenia, he says, NASEM “declared the issue settled.” He quotes one of the “highlights” at the top of the relevant chapter in the report: “Cannabis use is likely to increase the risk of developing schizophrenia and other psychoses; the higher the use, the greater the risk.”

Although Berenson says that’s what “the scientists concluded,” their official conclusion on this point is decidedly more ambiguous: “There is substantial evidence of a statistical association between cannabis use and the development of schizophrenia or other psychoses, with the highest risk among the most frequent users.” Contrary to the impression left by Berenson, the nature of that relationship remains unclear.

“There are a number of proposed explanations for why the comorbidity of substance abuse and mental health disorders exists,” the report notes. “Substance use may be a potential risk factor for developing mental health disorders,” “mental illness may be a potential risk factor for developing a substance abuse disorder,” or “an overlap in predisposing risk factors (e.g., genetic vulnerability, environment) may contribute to the development of both substance abuse and a mental health disorder.”

One, two, or all three of these hypotheses might be true to some extent. As NASEM puts it, the relationship between cannabis use and psychoses “may be multidirectional and complex.” The report also notes that “in certain societies, the incidence of schizophrenia has remained stable over the past 50 years despite the introduction of cannabis into those settings”—a puzzling fact if you believe marijuana use makes schizophrenia more common.

Ziva Cooper, a cannabis expert at the University of California, Los Angeles, and a member of the committee that produced the NASEM report, faulted Berenson for misrepresenting its findings. “We did NOT conclude that cannabis causes schizophrenia,” Cooper said on Twitter. “We found 1) an association between cannabis use and schizophrenia and 2) an association between cannabis use and IMPROVED cognitive outcomes in individuals with psychotic disorder.…We now know that genetic risk for schizophrenia predicts cannabis use, shedding some light on the potential direction of the association.” But according to Berenson, “That debate is over.”

Berenson also conflates correlation with causation while discussing the purported connection between marijuana and violent crime. If criminals use marijuana more than law-abiding people—a fact Berenson considers “striking”—it does not necessarily mean marijuana turned them into criminals.

The first four states to allow recreational use of cannabis, Berenson says, “have seen sharp increases in murders and aggravated assaults since legalization.” Yet University of Oregon economist Benjamin Hansen reported on the Incidental Economist blog that “the homicide rates in Colorado and Washington were actually below what the data predicted they would have been given the trends in homicides from 2000–2012.”

How plausible is it that legalizing marijuana would immediately cause sharp increases in murders and aggravated assaults? “Even though marijuana is commonly used by individuals arrested for crimes, there is little support for a contemporaneous, causal relationship between its use and either violent or property crime,” a 2013 report commissioned by the Office of National Drug Control Policy concluded. The authors, who are affiliated with the RAND Drug Policy Research Center, flatly stated that “marijuana use does not induce violent crime.”

Two authors of that report also co-wrote Marijuana Legalization: What Everyone Needs to Know, a 2012 book that Berenson praises. He does not quote this part: “Marijuana use by itself does not produce violent crime; in fact, some studies suggest the opposite effect.”

Trying to explain why the supposedly obvious causal connection between marijuana and psychotic violence has escaped the notice of experts for so long, Berenson says marijuana was so weak until the 1990s that it did not have a perceptible impact on crime. But if that’s true, how did pot prohibitionists like Anslinger manage to document a wave of cannabis-induced violence?

That is not the only puzzle. Cannabis consumption has increased substantially in the United States since the early 1990s, and during that period the violent crime rate has been cut in half—not what you would expect if more marijuana means more murder.

Berenson ignores several studies that found no association between relaxed legal restrictions on marijuana and increases in violent crime. If letting people use marijuana for recreational purposes triggers a surge in homicides and aggravated assaults, you would expect to see something similar in jurisdictions that allow medical use, especially when the rules are loose, as they were in California for two decades before general legalization.

Instead of even-handedly reviewing the evidence, Berenson, like Anslinger, offers a litany of violent crimes—”each more terrible than the rest,” according to his sensational but logically impossible description—that he attributes to marijuana, even when the evidence is equivocal or people close to the perpetrator disagree. If a murderer has talked about marijuana online, as far as Berenson is concerned, that shows marijuana made him do it.

“Finding violence and homicides connected to marijuana is all too easy,” says Berenson. And it’s true: If you’re determined to prove that link, you can find lots of examples that seem to fit your theory. Explaining why police have not noticed the “red tide of violence” caused by the “green wave” of rising marijuana use, Berenson blames “confirmation bias.” As he explains, “That term is a fancy way of saying that we look for evidence that supports what we think we already know.”

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Donald Trump, Scaredy-Cat

“Crooked Hillary,” Donald Trump tweeted in November 2017, “bought the DNC & then stole the Democratic Primary from Crazy Bernie!” The unusually tight relationship during the 2016 primary between the Democratic National Committee and its presidential front-runner, the president suggested, might be worthy of a Justice Department investigation.

If that were true, then the FBI should have a new case on its hands: the unprecedentedcollusion between the Republican National Committee and Trump himself.

Clinton, in August 2015, signed a secretive and controversial joint fundraising agreementwith the DNC that gave her the vast bulk of money raised and eventually placed some of the party machinery under her financial control. Trump, on the other hand, hasn’t just influenced and benefited from the RNC; he’s inhaled it like a cheeseburger.

In December, nearly two years before the 2020 election, the Republican Party and the president’s re-election campaign literally merged into a single unit, called Trump Victory, which RNC Chair Ronna McDaniel clucked would be “the biggest, most efficient and unified campaign operation in American history.” In January, the party passed a resolution giving the president its “undivided support.”

Political party apparatuses are supposed to be impartial arbiters of primary contests, not corner men for the reigning champions. Yet McDaniel at the Conservative Political Action Conference in February boasted that any Republican foolish enough to challenge Trump in the 2020 primaries would “lose horribly,” adding this taunt to the Bill Welds of the world: “So have at it, go ahead, waste your money, waste your time and go ahead and lose.”

Weld, who officially launched his campaign Monday, called McDaniel’s comments at the time “a stunning reversal of past party practice of honoring neutrality in primaries,” asking: “What is it they are so afraid of?”

That may be the most puzzling question of all. Trump is clobbering Weld in the polls — 85% to 15%, according to a national Emerson survey released this week. Even in Weld’s home state of Massachusetts, where he was a popular two-term governor in the 1990s, the president has a gargantuan 82-18 lead.

Approval of Trump among Republicans has stabilized at around 90%, according to Gallup polling, and Robert S. Mueller III’s special investigation — which would-be candidates John Kasich and Maryland Gov. Larry Hogan had been waiting for to help inform their decisions on whether to run – has failed thus far to land a serious blow. Sure, Republican voters may say they want more competition, but when presented with actual names, they tend to jump back into the arms of the party’s standard-bearer.

And yet the Trump machine is taking a bazooka to this thumb-wrestling match, inserting Trumpist yes men in regional party leadership positions — including in the crucial early states of Iowa, New Hampshire and South Carolina. Some of those apparatchiks have wondered out loud whether the party even should hold primaries next year.

“I’ve never seen anything like it and I’ve been involved in the Republican Party for most of my life,” Hogan told Politico in February. “It’s unprecedented.”

Such a cartoonish show of force is clearly designed to scare off potential competitors before they even get in the ring. But like many exaggerated projections of strength, it’s giving off the unseemly whiff of flop sweat.

There is a parallel here. Once upon a time, a Republican incumbent president popular within his own party faced minor competition both in early-state GOP primaries and among a rowdy Democratic field. There was some scandal and gross arm-twisting emanating from the White House, though not yet in a seriously prosecutable way; meanwhile the left was flirting more openly with socialism than it had in a generation.

In the end, Richard Nixon would squash the antiwar Californian Pete McCloskey like a bugin New Hampshire, before romping to the kind of general-election landslide that Donald Trump can only dream about. But along the way the president’s paranoia, crude habits and questionable taste in personnel — Roger Stone, anyone? — sowed the seeds of his administration’s destruction.

It is a time-wasting folly for Democrats to expect some mythical Watergate 2.0 to solve their biggest political problem with a single bang of the gavel. If anything, the analogy is more teachable for Trump himself. It’s the smallest men who require the biggest parades, and the organizations they corrupt will be staffed by compromised opportunists.

The president should welcome a political fight — he’s certainly better at it right now than any national Republican. But by stacking the deck so grossly in his favor, Trump is making the tacit admission that he just doesn’t believe in himself. Be very afraid when the president is scared.

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