Latest Wed, 16 Aug 2023 04:00:51 -0400 en-US hourly 1 Brickbat: I Scream, You Scream Wed, 16 Aug 2023 08:00:51 +0000 Kids line up at an ice cream truck in Manhattan. | Zhukovsky |

New York City Council member Lincoln Restler has introduced a bill that would ban ice cream trucks from using fossil fuel generators to power their freezers and food equipment. Restler said moving to solar-powered generators and other alternative forms of energy will reduce air pollution and noise. Restler said he would eventually like to expand the ban on fossil-fuel generators to all food trucks.

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The Government Has Made College an Overpriced Scam Wed, 16 Aug 2023 04:30:55 +0000 John Stossel in front of the U.S. Capitol | Stossel TV

It's August. Many young people head off to college.

This year, fortunately, fewer will go.

I say "fortunately" because college is now an overpriced scam.

Overpriced, because normal incentives to be frugal and make smart judgements about who should go to college were thrown out when the federal government took over granting student loans.


Because our government basically vomits money at everyone who applies.

If private lenders gave out the loans, they'd look at whether they were likely to be paid back. They'd ask questions like: "What will you study? You really think majoring in dance will lead to a job that will pay you enough to allow you to pay us back?"

Government rarely asks these questions. Bureaucrats throw money at students. Many don't benefit. Many shouldn't even be going to college. Today, nearly half of the students given loans don't graduate even after six years.

Many feel like failures.

College is good for people who want to be college professors or who major in fields like engineering and computer science that might lead to good jobs. But that's not most people. Government loans encourage everyone to go to college, even if they're not very interested in academics.

Government's handouts also invite colleges to keep raising tuition. Over the past 50 years, college cost rose at four times the rate of inflation. Four times!

Years ago, I reported how colleges were suddenly wasting money on luxuries like fancy gyms and even day spas. Last week, The Wall Street Journal reported that it's gotten worse: The University of Oklahoma bought a monastery in Italy for study abroad students! The University of Kentucky built a theater where students play video games.

"Why not raise tuition?" asks the typical college president. "Uncle Sam pays the bill!"

When I went to Princeton, tuition was $2,000. Now its $60,000.

Colleges have little incentive to cut costs or innovate. Princeton still "teaches" by having professors lecture. Super boring. I slept through many.

Although today, I guess I should thank Princeton because its tedious lectures inspired me to try to find better ways to present information. That made me successful on TV.

Today, student loan borrowers owe tens of thousands of dollars. Last year, President Joe Biden announced he would cancel up to $20,000 of that debt per person.

Indebted students loved that! A group named the Student Debt Crisis Center called that "a major win for many."

But it would be a major loss for many more! Canceling debt is unfair to the people who work hard and pay off their debts.

Fortunately, Biden's plan was struck down by the Supreme Court, which said only Congress has the right to cancel student debt. Congress didn't.

Now Biden's trying again. The administration announced they will forgive debt for anyone who's been making payments for more than 20 years. That's better, but still bad. Maybe courts will stop this handout, too.

College students take on loans and spend decades in debt because they believe they must get a degree to be hired. But that's no longer true. IBM, Accenture, Dell, Bank of America, Google, and other big companies, recognizing the uselessness of many undergraduate degrees, recently dropped college degree requirements. So have state governments in Maryland, Utah, Colorado, Pennsylvania, Alaska, North Carolina, New Jersey, and Virginia.

Good jobs in the trades, like welding and plumbing, don't require a college degree. Trade school programs often take less than two years and cost much less than college.

To have a good life or get a good job, you don't need fancy dining halls, video game auditoriums, or a college degree.

College has become a government-subsidized rip-off. It's good that fewer people go.


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The Arbitrary Ban on Gun Possession by Drug Users Invites Wildly Uneven Enforcement Wed, 16 Aug 2023 04:01:19 +0000 The arbitrary ban on gun possession by drug users invites wildly uneven enforcement. | MIS Photography/

In a 2021 survey, 15 percent of American adults admitted using illegal drugs (mostly marijuana) in the previous month. Other surveys suggest that something like 12 million of those drug users owned guns, making them guilty of a federal felony that is currently punishable by up to 15 years in prison. Yet fewer than 150 Americans are prosecuted for that crime each year.

Those odds make Patrick Darnell Daniels Jr., a Mississippi man who had two guns and the remains of a few joints in his car when he was stopped for a traffic violation last year, extremely unlucky. But Daniels caught a break last week, when the U.S. Court of Appeals for the 5th Circuit ruled that his prosecution violated the Second Amendment, a decision that highlights the injustice of a policy that arbitrarily strips peaceful Americans of the constitutional right to armed self-defense.

Daniels committed the same gun crime as Hunter Biden: receipt or possession of a firearm by an "unlawful user" of a controlled substance. But while the president's son would have escaped prosecution for that offense under a plea deal that a federal judge nixed last month, Daniels was sentenced to nearly four years in prison.

That stark contrast reinforces Republican complaints that Biden benefited from favoritism. But it only scratches the surface of the unequal treatment that results from combining a constitutionally dubious, widely flouted law with broad prosecutorial and judicial discretion.

From fiscal year 2008 through fiscal year 2017, the Justice Department prosecuted more than 73,000 gun cases. Nearly three-quarters of those cases involved illegal gun possession by people with felony records, while less than 2 percent involved defendants like Daniels and Biden, whose consumption of politically disfavored intoxicants barred them from owning firearms.

That breakdown can be partly explained by prosecutorial priorities: Although the criminal records that disqualify people from legally owning guns cover a wide range, including many nonviolent offenses, prosecutors probably tend to view them as a better indicator of dangerousness than, say, the periodic pot smoking that Daniels admitted. Another important factor: Criminal records show up in background checks for gun buyers, while illegal drug use typically does not.

Once a transaction is completed, a gun-owning drug user won't be identified as such unless his drug use is publicly known (as Biden's was) or he happens to be caught with drugs and guns (as Daniels was). But once that happens, the consequences can be severe.

In addition to the charge that Biden and Daniels faced, someone who falsely denies drug use on the form required for purchases from federally licensed gun dealers can be charged with two additional felonies. A bill that Biden's father signed into law last year added yet another felony: "trafficking in firearms," which Congress defined broadly enough to cover drug users who buy guns.

The upshot is that the penalty for drug users who obtain firearms can range from none at all (which is almost always the case) to, theoretically, a combined maximum sentence of 45 years. Those potential defendants include millions of cannabis consumers, regardless of whether they live in states that have legalized marijuana and regardless of whether they handle guns while intoxicated.

President Joe Biden says marijuana use should not be treated as a crime, a position reflected in his mass pardon for people convicted of simple possession under federal law. Yet his administration simultaneously insists that marijuana users are so dangerous that they cannot be trusted with guns—so dangerous, in fact, that the government is justified in sending them to prison for years if they dare to exercise their Second Amendment rights.

In Daniels' case, the 5th Circuit rejected that argument, deeming it inconsistent with "this Nation's historical tradition of firearm regulation"—the constitutional test that the Supreme Court established last year. If the justices ultimately agree with that assessment, it could mark the end of an irrational, haphazardly enforced restriction that Congress should have reconsidered long ago.

© Copyright 2023 by Creators Syndicate Inc.

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The Georgia Case Against Trump Tue, 15 Aug 2023 21:25:05 +0000 Georgia Flag
Flag of Georgia.


Yesterday's Georgia state indictment against Donald Trump for his efforts to overturn the 2020 election in that state includes charges similar to those in the recent federal indictment filed by special counsel Jack Smith. But it also breaks considerable new ground. To the extent that the charges deal with similar issues, Georgia is—in my view—well-justified in prosecuting Trump, for much the same reasons as the federal government is. But some of the charges raise technical legal issues I prefer to leave to commentators with greater relevant expertise.

Some of the charges against Trump and 18 other defendants in the Georgia indictment are similar to recently filed federal charges. For example, both feature charges of fraud related to Trump's scheme to replace Georgia's electors with slates of fake electors, and pressure state officials into falsifying vote counts. While some technical details diverge, there legal case against Trump on these issues is strong (see my discussion of the relevant federal issues here and here), and there is a strong rationale for prosecution based on the need for retribution and deterrence.

As in the federal case, the relevant Georgia fraud statutes (which focus on defrauding the government and election fraud) are not confined to property crimes. And, as in that case, Trump is not being prosecuted merely for claiming he won the election or that fraud occurred. Rather, the indictment details a long list of schemes to substitute fake electors for real ones and otherwise coerce and defraud state officials.

Some might wonder why state officials can prosecute Trump for much the same as crimes as the feds. After all, the Double Jeopardy Clause of the Fifth Amendment bars defendants from being twice "put in jeopardy" for "the same offence." Part of the answer is that Trump has not yet been tried (much less convicted or acquitted) on the federal charges.

But in addition, the Supreme Court has long held that there is a "dual-sovereignty" exception to the double jeopardy clause—a rule recently reaffirmed by the Court in its 7-2 decision in Gamble v. United States (2019). Because states and the federal government are separate sovereigns, the Court reasoned, they are permitted to each try the same person for what is substantively the same offense.

In my view, there is a lot of merit  to Justice Ruth Bader Ginsburg's and Neil Gorsuch's dissenting opinions, in Gamble, arguing that the dual-sovereignty doctrine is wrong. But the Court is unlikely to overturn that rule anytime soon. Thus, Georgia and the feds can both prosecute Trump (and perhaps others) for similar election-related offenses. If Trump gets acquitted in one proceeding, that doesn't give him a pass on the other. Conservatives and others who don't like that can blame the Supreme Court.

Along with these similarities to the federal charges, there are also key differences. Many of the counts against Trump and other defendants are under Georgia's state Racketeer Influenced and Corrupt Organizations Act (RICO). I am sure there are lots of newly minted RICO experts commenting away on Twitter and elsewhere. But I'm not going to pretend to be one of them, and so will have to leave this issue to others.

There are a number of other Georgia-specific charges, as well, such as claims that some of Trump's co-conspirators illegally accessed state election data. I will leave that to relevant experts, as well.

Perhaps the biggest difference between the federal and Georgia indictments is that the latter features 19 defendants, while the former is limited to Trump (though the feds may well file charges against others in separate proceedings).

Some of the Georgia co-defendants are the same people as Trump's unindicted co-conspirators from the federal indictment, most notably Rudy Giuliani, Jeffrey Clark, John Eastman, and Sidney Powell. Others are lesser-known figures, including some whose involvement in election skullduggery appears to have been limited to Georgia. The inclusion of 19 total defendants is likely to make for a longer and more complicated trial and appellate process. Jack Smith may have chosen to charge Trump separately to avoid such problems.

If time permits, I may have more to say about some of Trump's co-defendants in future posts. One of them—Eastman—is a person I knew for many years in his capacity as a law professor; but I should emphasize (in case prosecutors are reading this!) that I have no inside knowledge of his involvement in Trump's schemes to overturn the election.

Experts are divided on whether Trump can potentially force the removal of the Georgia case to federal court. If he can do so, he might potentially get a more favorable jury pool, and also possibly claim immunity to some or all of the charges on the grounds that he was just engaged in his official duty. I highly doubt the latter gambit will work, even if the former succeeds. Trump was pretty obviously acting to advance his private interests as a candidate, not discharge his official responsibilities. But this too is an issue best left to those with greater expertise.

Finally, it's worth noting that the Georgia charges cannot be pardoned by the president, as they are state offenses, not federal ones. Georgia Governor Brian Kemp cannot pardon them either, as the pardon power in that state is controlled by an independent board, not the governor. And even the board cannot issue a pardon until after at least five years have passed since the applicant completed his sentence.

In sum, the Georgia case against Trump deepens his legal jeopardy, and at least some of the charges seem compelling. On others, I must defer to the assessment of commentators with greater expertise.

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Trump's Georgia Indictment Raises Familiar Questions of Knowledge and Intent Tue, 15 Aug 2023 21:20:50 +0000 Donald Trump wears a white polo and a Make America Great Again hat | Rich Graessle/Icon Sportswire/Newscom

The Georgia indictment that was unveiled last night charges former President Donald Trump and 18 other defendants with participating in an "enterprise" that engaged in a pattern of "racketeering activity" aimed at an illegal result: keeping Trump in office after he was defeated by Joe Biden in the 2020 presidential election. By relying on Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act, Reason's Elizabeth Nolan Brown notes, Fulton County District Attorney Fani T. Willis was able to connect "a lot of related and relatively unrelated conduct"—including 161 listed actions—by "a bunch of disparate people, some acting directly in concert with Trump and his legal team and some much further removed."

Georgia's RICO law, as interpreted by state courts, is even broader than the famously flexible federal version, covering many more "predicate offenses," defining "enterprise" very loosely, and prescribing a weaker test for establishing a pattern of racketeering activity. The indictment nevertheless hinges on debatable interpretations of specific conduct that Willis portrays as part of a criminal conspiracy but the defendants will characterize as legitimate efforts to rectify what they perceived as systematic election fraud. As with the federal indictment of Trump that was unsealed earlier this month, which covers much of the same territory, the choice between those dueling descriptions will depend largely on how a jury views each defendant's knowledge and intent.

In addition to the RICO charges, each defendant is charged with at least one independently illegal act. Trump himself is charged with 12 of those underlying offenses.

Count 28, for example, alleges that Trump solicited a felony during the notorious January 2, 2021, telephone conversation in which he urged Georgia Secretary of State Brad Raffensperger to "find" the 12,000 or so votes that would be necessary to reverse Biden's victory in that state. The felony that Trump wanted Raffensperger to commit, according to the indictment, was "violation of oath" by a "public officer," and intentional solicitation of that crime is also a felony.

That is a plausible interpretation of Trump's conversation with Raffensperger, during which he floated one debunked election-fraud claim after another and seemed impervious to Raffensperger's refutations. Trump also suggested that Raffensperger could be criminally liable if he failed to do what Trump asked.

Trump, of course, argues that, far from encouraging Raffensperger to violate his oath, he was asking him to do his job by addressing supposedly credible fraud allegations. The question is not just whether those allegations were in fact credible (they were not, as Raffensperger pointed out repeatedly) but also whether Trump truly believed they were. When you read the transcript of that conversation, it is hard to tell.

Similarly, Count 27 charges that Trump knowingly filed a false document, also a felony, when he submitted a December 31, 2020, complaint as part of his lawsuit challenging the election results in Georgia. Among other things, that document falsely claimed that Georgia had counted votes from "as many as 2,506 felons with an uncompleted sentence," "at least 66,247 underage" people, "at least 2,423" unregistered voters, "at least 1,043" people with P.O. boxes listed as their addresses, and "as many as 10,315 or more" dead people.

Did Trump know those claims were inaccurate when he endorsed them? There is some evidence that he did. During litigation over access to Trump lawyer John Eastman's emails by the House select committee that investigated the 2021 Capitol riot, a federal judge noted that Eastman, in a December 30, 2020, email, "relayed 'concerns' from President Trump's team 'about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.'"

The next day, Eastman elaborated on those concerns: "Although the President signed a verification for [a state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate."

Trump apparently was unfazed. "President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them," U.S. District Judge David O. Carter wrote. "President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers 'are true and correct' or 'believed to be true and correct' to the best of his knowledge and belief."

In other words, Carter said, "the emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public." Carter concluded that the messages therefore were "sufficiently related to and in furtherance of a conspiracy to defraud the United States," making them available to the House committee under the "crime-fraud exception" to attorney-client privilege and the work product doctrine.

The "more likely than not" standard that Carter applied in that case, however, is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction. Eastman (who is one of Trump's co-defendants) said Trump had been "made aware" that the claims about ballots cast by dead people, felons, and unregistered voters were "inaccurate." But even if someone told him the numbers were wrong, and even if Trump was paying attention, it would have been perfectly in character for him to continue believing them.

The federal indictment is filled with examples of information that Trump ignored or rejected because it conflicted with his stolen-election narrative. That stubborn resistance can be interpreted either as evidence of his dishonesty or as evidence of his longstanding tendency to embrace self-flattering delusions and never let them go.

During his conversation with Raffensperger, which happened two days after the complaint cited in the indictment was filed, Trump again claimed that many "dead people voted" in Georgia. "I think the number is close to 5,000 people," he said. That estimate was less than half as big as the number cited in his own lawsuit, which gives you a sense of how little attention he paid to such details. "The actual number [was] two," Raffensperger said. "So that's wrong."

At a certain point, as George Mason law professor Ilya Somin suggests, willful blindness to reality is hard to distinguish from deliberate deceit, and this example vividly illustrates that point. But in assessing Trump's state of mind when he made unsubstantiated claims like these, a jury will have to decide whether there is reasonable doubt as to whether he knew they were false.

Counts 3 and 24, which allege that Trump lawyer Rudy Giuliani knowingly made false statements when he testified before the Georgia Senate Judiciary Committee in December 2020, raise similar questions. During a December 3 hearing, the indictment notes, Giuliani asserted that at least 96,600 mail-in ballots were counted in Georgia's election "despite there being no record of those ballots having been returned to a county elections office." He also claimed that a Dominion Voting Systems machine in Michigan had "mistakenly recorded 6,000 votes for Joseph R. Biden when the votes were actually cast for Donald Trump." On December 30, Giuliani testified that "2,560 felons voted illegally," that "10,315 dead people voted," and that "Fulton County election workers fraudulently counted certain ballots as many as five times at State Farm Arena."

Giuliani recently admitted, in response to a defamation lawsuit by two of those election workers, that his claims about them "were false." But it is still possible that he accepted the story at the time. Giuliani certainly acted as if he sincerely believed what he was saying, which is why he seemed more like a deranged crackpot than a calculating con man. Maybe it was all pretense, but I think that may give Giuliani too much credit.

Several of the counts in the indictment, alleging offenses such as forgery, false statements, and solicitation of a felony, are related to the "alternate" electors scheme that Trump's lawyers and allies executed in Georgia and other battleground states. Under that plan, Republican nominees for the Electoral College met on December 16, voted, and presented themselves as "duly elected and qualified," contrary to the certified outcome.

There is a colorable argument, based on the precedent set by the 1960 dispute over Hawaii's electoral votes, that signing those certificates was a legitimate way to preserve the Trump campaign's options in light of its pending state lawsuit. The idea, as presented by Trump's lawyers, was that the "contingent" electors would be counted only in the (extremely unlikely) event that the lawsuit was successful.

That is how former Georgia Republican Party Chairman David Shafer, who oversaw the meeting of Trump electors, explained it at the time. Shafer, one of Trump's 18 co-defendants, insists he was not aware of any plans to go further by pressuring Vice President Mike Pence to recognize the "alternate" slate instead of Biden's when he oversaw the congressional tally of electoral votes on January 6, 2021. While Shafer may or may not be telling the truth, the question of whether the would-be electors accepted the rationale offered by Trump's legal team certainly seems relevant in assessing their intent.

Trump's lawsuit, which was filed on December 4, may have been little more than an excuse to recruit the "alternate" electors and thereby create the impression that there was reason to doubt whether Biden had actually won. Like many of the charges against Trump and his allies, that conclusion depends on the premise that they cynically pursued claims they knew had no basis in fact. But judging from the evidence we have seen so far, it seems plausible that at least some of the defendants, possibly including Trump himself, were true believers in his lost cause.

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Plaintiff Professor's Losing Libel Lawsuit May Lead to His Former Lawyers Foreclosing on His Home Tue, 15 Aug 2023 20:06:25 +0000 Judge Jeffrey M. Brown's opinion in James E. Arnold & Associates, LPA v. Croce (Ohio Ct. Com. Pl. Franklin County, July 12), notes that the professor had given his then-lawyers a promissory note, secured by the house. Retraction Watch reports:

A law firm that holds a mortgage on the house of Carlo Croce, a cancer researcher at The Ohio State University, may foreclose on the property, a judge has ruled.

Croce hired James E. Arnold and Associates to represent him in a libel case against the New York Times and a defamation case against David Sanders, a professor of biological sciences at Purdue University who became something of a public nemesis for the Ohio scientist after pointing out problems in Croce's published work. Croce also needed representation for Ohio State's research misconduct investigation, and a suit attempting to stop the university from removing him as chair of the department of cancer biology and genetics.

Croce lost each case. Ohio State's investigation found problems with how he managed his lab that did not amount to research misconduct.

Arnold and Associates was the second firm Croce hired, after his original lawyers at Kegler Brown Hill & Ritter dropped his cases and sued him because he wasn't paying his bills. Last December, a judge ordered Croce to pay Kegler Brown nearly $1.1 million. To enforce the judgment, Ohio State has been garnishing his wages, and Kegler Brown has filed a motion for the court to allow Sotheby's to handle the sale of pieces from Croce's collection of Renaissance artwork, which the county sheriff seized….

See also this 2021 post on the Sixth Circuit opinion rejecting Croce's libel claim. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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How Middle East Outlets Reframe the News To Fit Their Narrative Tue, 15 Aug 2023 19:35:23 +0000 Text over a black background, reading "Palestinian militants" with "militants" crossed out and replaced with terrorists. "Israeli officials" is crossed out and replaced with "the Israeli occupation." | Illustration: Lex Villena; France24

A wire report about fighting in the West Bank shows up in news editors' feeds around the world. A Jordanian outlet wants to print it—and makes sure to replace every mention of the Israel Defense Forces with the occupation army. Across the Jordan River, The Times of Israel is also making edits, appending the word terrorist to any mention of Palestinian guerrillas. Side-by-side in a Google News search result, the articles make for a striking contrast, a kind of uncanny mirror-world.

People from around the world count on a small group of American and European agencies for their news. Wire services like the Associated Press and Agence France-Presse gather breaking news and sell the stories to news outlets for a small fee. While overall media budgets are shrinking, the internet has allowed local newspapers to get wire reports more quickly and easily than ever before.

The wire services have some advantages over local press, even when covering local stories. They tend to have better resources, and their international presence helps them avoid different countries' censorship laws. Since these agencies are based in the West, their coverage is written for Western readers. But many of their audiences today are in other parts of the world; foreign editors spend a lot of time and effort adapting wire reports to local perspectives.

Several months ago, I received a grant from the Fulbright Program, an educational exchange funded by Congress, to research how the Jordanian press interacts with international media. I was free to conduct my research and write about the results as I wish, as long as I made it clear that my words do not represent the views of the Fulbright Program, the U.S. government, or any partner organizations.

For my research, I volunteered at several Jordanian news outlets. Jordan News is the English-language edition of Al Ghad, a privately owned newspaper. Roya TV is a privately-owned station that broadcasts in Arabic and publishes online content in English. Radio Al-Balad is a nonprofit Arabic-language station that has received funding from European governments. 

At all three outlets, I helped translate local content into English, and observed as editors adapted foreign stories for local audiences.

Jordanians pay close attention to English-language—especially American—media. The kingdom receives large amounts of U.S. aid and even hosts U.S. military bases. Some Jordanians received an American education, and many more are fans of American pop culture. A large Jordanian-American diaspora regularly travels between the two countries.

But there are important differences between Jordanian and American views, especially when it comes to the Israeli-Palestinian conflict. While American politics has a strong pro-Israel streak, about half the population of Jordan has Palestinian roots, the descendants of refugees who were expelled by or fled from Israeli forces during the 1948 and 1967 wars.

Even straight news reporting can reflect sharp disagreements, since the very names of places are political. Israel and Palestine do not have defined borders.

The whole land was a British colony, known as the Mandate of Palestine, before a civil war broke out in 1947 and 1948. Jewish nationalists declared the state of Israel, and the rest of the old Mandate fell under Jordanian and Egyptian control. Israel captured the remaining Palestinian territories—the West Bank and Gaza—in 1967. During peace talks in the '90s, part of those territories were placed under an autonomous Palestinian Authority, which declared itself "the state of Palestine" and won a United Nations observer seat in 2012.

Neither Israel nor Western governments recognize the state of Palestine as an independent nation. Many Western newsrooms follow their governments' policies. The Canadian Broadcasting Corporation, the Australian Broadcasting Corporation, and the German state-owned broadcaster Deutsche Welle all ban their reporters from using the word Palestine to refer to a country.

The Associated Press allows its reporters to refer to the state of Palestine when talking about the United Nations, or similar international forums like the Olympics. In other cases, Associated Press guidelines say to use Palestinian territories for the West Bank and Gaza, "since [Palestine] is not a fully independent, unified state."

Some Jordanian journalists see things quite differently.

Roya TV always uses the term Palestine in its Arabic- or English-language content. Israel is referred to as either the Israeli Occupation or Tel Aviv. It sometimes makes for awkward reading. "Israeli prime minister Benjamin Netanyahu" becomes "Israeli Occupation Prime Minister Benjamin Netanyahu," in Roya's parlance.

"Roya's in-house style reflects its commitment to presenting news stories through a Palestinian lens and the aggression the Palestinian people face every day from the Israeli Occupation," says English news editor Dana Sharayri.

Sharayri believes that it's important to highlight "the historical context and the continued struggle for Palestinian rights," whether in the territories set aside for the Palestinian Authority, or the territories that became Israel in 1948.

Jordan News hews more closely to the style preferred by the Associated Press. The West Bank and Gaza are occupied Palestinian territories. The Old City of Jerusalem and its eastern suburbs, which Israel captured in 1967, are occupied East Jerusalem. According to Editor in Chief Osama Al-Sharif, referring to the territories that way is a matter of "international law and U.N. resolutions."

In May 2022, Palestinian-American journalist Shireen Abu Akleh was shot dead in an Israeli raid in the West Bank. Her employer, Al Jazeera, accused the Israeli army of assassinating Abu Akleh, but many international news services were reluctant to point out a perpetrator at first.

Jordan News ran Al Jazeera's claim as a headline: "Israel kills journalist Shireen Abu Akleh 'in cold blood.'" Al-Sharif said that looking at all the sources and his "40 years of experience" led him to run that headline.

After first implying that Palestinian guerrillas were to blame, Israel later admitted that one of its soldiers shot Abu Akleh, and claimed the killing was an accident.

Most strikingly, Jordan News never refers to the Israeli military by its official name, the Israel Defense Forces. Instead, they are the Israeli occupation forces. "We are calling it for what it is," says Al-Sharif.

Less than 100 miles away, Israeli editors are busy taking out references to occupation. The Times of Israel, an English-language newspaper, removes the word occupied from foreign newswires about Jerusalem and the Golan Heights, a territory Israel conquered from Syria in 1967.

Unlike the West Bank and Gaza, the Israeli government has formally annexed East Jerusalem and the Golan. Referring to those places as occupied will "get you labeled with a certain bias" by Israeli audiences, says Deputy Editor Joshua Davidovich. 

"We're not in the business of endorsing or not endorsing annexations," Davidovich says. "It's just an expression of our Israeli point of view."

Other Israeli newspapers do not even use the term Palestinian Territories or West Bank. The Israeli government officially calls it Judea and Samaria, the name of the West Bank in Jewish scripture, as do most Israeli media outlets in Hebrew and some in English.

Perhaps the most dramatic disagreement comes when talking about the Palestinian guerrillas who fight Israel. Over the past few decades, these groups have targeted both the Israeli army and civilians, including with indiscriminate shootings and bombings. The Israeli government calls them terrorists, and the U.S. government has also listed many Palestinian rebel groups as terrorist organizations.

The Associated Press discourages using the term terrorism in general, because it "is often used loosely by governments and leaders to condemn any rival political group or act of resistance." Hamas, the Palestinian rebel group that controls Gaza, is simply a "political party, which has an armed wing." Jordan News follows the same rules.

The Times of Israel, however, has a policy of explicitly calling Hamas and other Palestinian rebels terrorists. Davidovich claims "the word has a use in delineating the difference between a non-regular combatant targeting other combatants, as we would describe a militant, and someone who deliberately targets civilians."

Roya, on the other hand, avoids using the terms terrorist or militant, instead referring to the Palestinian resistance. Sharayri argues that the guerrillas are "defending their homeland" and "resisting the inhumane acts perpetrated by the Israeli Occupation Forces."

Given all the ways that wire reports clash with local sensibilities, it's reasonable to ask why local newspapers don't just cover the stories with their own reporters. Al-Sharif and Davidovich are unanimous on that point: The wire services tend to be fast, trustworthy, well-sourced, and good at explaining context to unfamiliar audiences.

"A lot of times when you're in the thick of it, you lose sight of the overall picture…and what the rest of the world thinks is going on," Davidovich says. "Strange as it is to say, [the wire services] might have access to places we might not," he added. For example, he says Netanyahu "does not like talking to the Israeli press," but is more talkative with foreign media.

Then there's the censorship issue. Israeli journalists have to get a military censor's approval to write about certain national security topics. Jordanian authorities often use gag orders, "cybersecurity" laws, and the threat of defamation lawsuits to reign in the local press. Both the Palestinian Authority and Hamas have arrested and tortured journalists for criticizing them.

Wire services have a simple workaround for censorship. If a journalist in Gaza or Tel Aviv gets a sensitive scoop, their organization will publish it under the name of staff in New York or London.

That isn't to say that wire journalism is risk-free. Hamas held several wire reporters at gunpoint in 2017, and Israel blew up the Associated Press offices in Gaza in 2021, claiming that Hamas fighters were stationed in the building.

In turn, news published abroad allows the local media to indirectly report on sensitive topics. For example, Israeli newspapers will almost always add the disclaimer "according to foreign reports" when alluding to Israel's nuclear weapons program. When Jordan carried out secret air raids against drug traffickers in Syria earlier this year, Jordanian media reported it as a claim by the British wire service Reuters.

Wire services and local news both have their problems. Bringing them together may be the best solution—especially in a world where censors and border guards want to squelch the flow of information.

"We use all media sources including Times of Israel, [right-wing Israeli newspaper] Jerusalem Post, and [left-wing Israeli newspaper] Haaretz," Al-Sharif says. "We look at all and decide how best we can present objective and balanced news."

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By Trying To 'Move On,' DeSantis Admits His Fight With Disney Was a Political Stunt All Along Tue, 15 Aug 2023 19:10:04 +0000 Florida Governor Ron DeSantis says he's "moved on" and thinks Disney should drop its lawsuit against his administration. But it's not that simple. | Dirk Shadd/ZUMA Press/Newscom

The fact that Florida Gov. Ron DeSantis is now trying to back away from his fight with the Walt Disney Company should confirm at least one thing about the whole ugly mess.

It was never a principled fight against special privileges granted to a private company. It was a political stunt meant to raise DeSantis' profile on the national stage.

That mission having been accomplished—and with the prospects of a legal battle against Disney looming—DeSantis told CNBC on Monday that he has "moved on" from the issue. He also encouraged Disney to "drop the lawsuit" that it filed in April against his administration.

In that lawsuit, Disney claimed that DeSantis led a "targeted campaign of government retaliation" after the company's then-CEO, Bob Chapek, had spoken out against DeSantis' decision to sign a bill limiting the discussion of gender and sexuality in grade school classrooms. (The ban was later expanded to include nearly all public school classrooms in the state.) DeSantis responded to that criticism by launching a crusade against Disney's special self-governing district, the Reedy Creek Improvement District, culminating in the passage of a state law that gave the governor the authority to appoint a new board to run the zone.

DeSantis and his allies have framed that maneuver as a strike against corporate special interests, but Disney's lawsuit makes a compelling case that the governor specifically targeted Disney to punish the company for Chapek's comments. The complaint draws from numerous public statements and from remarks made within DeSantis' recently published book to argue that DeSantis sought to punish Disney for constitutionally protected speech.

It makes a lot of sense for DeSantis to try to walk away from this fight, in no small part because getting his butt kicked in federal court over a fairly fundamental constitutional issue wouldn't be a good look for a guy who is hoping to become president. Even if he doesn't lose, the lawsuit will be an ongoing source of bad news for DeSantis and will give reporters the opportunity to ask questions he'd rather not have to deal with—like the newly uncovered ethical issues surrounding one of the people DeSantis appointed to the Reedy Creek board. Ending the fight would also save taxpayers from having to foot the legal bills for DeSantis' defense, which is nice.

Still, getting out of this mess is probably not as simple as asking Disney to drop the lawsuit and move on. Does DeSantis intend to ask the state Legislature to undo the governor's control over the Reedy Creek board? If not, then why should Disney back down?

Short of that, it would be useful for reporters to ask DeSantis whether he would take similar actions against other businesses whose executives criticize his policies. Disney obviously has the power to fight back, but others might not be able to do so. Is DeSantis willing to admit he was wrong to retaliate against Disney? The answer would be instructive for voters weighing his candidacy for higher office.

Ultimately, though, DeSantis' attempt to "move on" from the fight with Disney reveals how unserious the whole thing was. If this were a principled stand against corporatism, as DeSantis has claimed, it would be worth seeing the fight through to the finish. That was never the case, however, and it looks like DeSantis simply wants to end this political stunt before it blows up in his face.

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Journal of Free Speech Law: "Freedom of Speech and AI Output," by Profs. Mark Lemley and Peter Henderson and Me Tue, 15 Aug 2023 18:52:56 +0000 The article is here; the Introduction:

Is the output of generative AI entitled to First Amendment protection? We're inclined to say yes. Even though current AI programs are of course not people and do not themselves have constitutional rights, their speech may potentially be protected because of the rights of the programs' creators. But beyond that, and likely more significantly, AI programs' speech should be protected because of the rights of their users—both the users' rights to listen and their rights to speak. In this short Article, we sketch the outlines of this analysis.

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No Pseudonymity in Psychological Disability Employment Discrimination Lawsuit Tue, 15 Aug 2023 18:36:57 +0000 From Doe v. N.Y. City Dep't of Ed., decided today by Judge Mary Kay Vyskocil (S.D.N.Y.):

This is an employment discrimination case. Plaintiff has worked for the DOE since 2012. Plaintiff alleges that she is "psychologically disabled" and was subjected to discrimination, harassment, and unlawful retaliation at work….

[Plaintiff] contends that the "primary purpose" of the motion is to protect her minor child, who has "learning disabilities and ongoing mental health issues." Specifically, Plaintiff "seeks to shield her minor child from any discriminatory harm that may be caused by a record of her mental health issues when she was a minor," particularly given her child's "interest in pursuing a career in the military." Plaintiff also expresses concern that, if she litigates this case using her real name, Defendants will further retaliate against her. Finally, Plaintiff contends that making her name public would put her "future employment prospects … at immense risk" because she fears developing a "reputation associated with suing her employer." …

Under Federal Rule of Civil Procedure 10(a), a "complaint must name all the parties." This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings" and "cannot be set aside lightly" because "[t]he people have a right to know who is using their courts." Indeed, the public's right of access to judicial proceedings is "supported by the First Amendment."

In limited circumstances, however, district courts have discretion to permit a plaintiff to proceed under a pseudonym. In evaluating a request to proceed anonymously, the Court must balance "the plaintiff's interest in anonymity … against both the public interest in disclosure and any prejudice to the defendant." … The Court … finds that Plaintiff's limited interest in anonymity does not outweigh the public's interest in disclosure….

[1.] Notwithstanding Plaintiff's self-serving assertions to the contrary, claims of employment discrimination, harassment, and retaliation are not highly sensitive or personal in nature…. "Courts have found that cases relating to birth control, abortion, homosexuality, welfare rights of illegitimate children, and abandoned families are highly sensitive and of a personal nature." …

[2.] The Court is unpersuaded that identifying Plaintiff by name could "pose[] a risk of retaliatory physical or mental harm to [her] or innocent non-parties." To the extent that Plaintiff alleges that Defendants will retaliate against her or her minor child if her name is revealed, Plaintiff has already conceded that "Defendants are well aware of [her] identity." She also admits that "Defendants already involved Plaintiff's minor child in this case." It is therefore unclear how permitting the plaintiff to prosecute her suit anonymously would mitigate the risk of retaliation towards her or her child.

Plaintiff's concern regarding her future employment prospects is similarly unavailing. "[T]he potential injury alleged must be more than 'mere embarrassment' or 'social stigmatization.'" Such a concern surely attends in any employment or discrimination related case. Moreover, Plaintiff's purported concern is both entirely speculative and unsubstantiated…. "[S]peculative claims of physical or mental harms are insufficient to bolster a request for anonymity." … Plaintiff's concern about her minor child's "future interest in joining the military"—at some potential, hypothetical date in the future—fails for the same reason….

[3.] Although Plaintiff contends that revealing her name would risk revealing the identity of her minor child, the Second Circuit [anonymity caselaw] has directed courts to focus on the age of the plaintiff, not associated third parties….

[4.] It is true that "courts are less likely to grant a motion to proceed anonymously when the suit involves solely private parties, as compared to an action involving the government." However, "courts have also determined that [suing the government] can weigh against the use of a pseudonym. That is particularly true where, as here, "the involvement of the government indicates that there is a public interest in the facts of the incident at issue as opposed merely to a public interest in knowledge of the manner in which the courts function in resolving disputes." …

[5.] [W]hen a plaintiff makes "serious charges," courts have found that "[f]airness requires that [Plaintiff] be prepared to stand behind her charges publicly." …

[6.] Plaintiff broadly asserts—without support—that there is "reasonably no public interest in knowing [her] name." However, "lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them" including "the identity of the parties." Moreover, this case does not involve "abstract challenges to public policies, but rather … particular actions and incidents." Accordingly, the Court finds that open proceedings will "benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." …

Finally, there are other (less drastic) mechanisms for protecting Plaintiff and her minor child's privacy, such as appropriate, narrow redactions or sealed submissions.

The tenth factor therefore counsels against anonymity….

Plaintiff acknowledges that there are "numerous cases with named Plaintiffs who have filed similar discrimination cases against the DOE." Her case is no different. She should be prepared to litigate this case under her real name—or not at all. {In the alternative, Plaintiff asks that the case proceed under seal. That request is DENIED in light of the presumption of public access to judicial documents.}

I think this is correct, but note that some courts have allowed pseudonymity to conceal a plaintiff's psychological disability; see Appendices 3A & 3B of The Law of Pseudonymous Litigation for a list of many cases going both ways.

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'This Is Not an Emergency' Tue, 15 Aug 2023 17:24:37 +0000 Elmer Williams | Illustration: Lex Villena; Spiroview Inc.

Documents uncovered in a civil rights lawsuit show Florida prison officials and medical staff allowed an incarcerated man's prostate cancer to spread untreated until he was left paralyzed, terminally ill, and afflicted with infected bed sores that rotted to the bone.

When he wrote desperate pleas for help, one official concluded, "This is not an emergency."

In a federal civil rights lawsuit filed last year, former Florida inmate Elmer Williams alleges that corrections officers and nursing staff denied and delayed medical treatment for months after he filed a grievance against them. The complaint argues these delays were not just bureaucratic incompetence but retaliation "intended and designed to prevent [Williams] from receiving a timely diagnosis." The lawsuit alleges violations of the Eighth Amendment and the Americans with Disabilities Act; it names several Florida Department of Corrections (FDC) officials and medical staff employed by Centurion, a private health care provider that contracts with the FDC.

Williams, 56, spoke to Reason from the hospital bed where he has spent most of his time since the FDC granted him medical release last October, and where he will in all likelihood spend his final days.

"Slowly, slowly, slowly, they just let me fall apart," he says.

Many of Williams' claims are corroborated by medical records that reveal staff were aware of his extremely high indicators for prostate cancer, aware of a long-overdue "urgent" referral to a urologist, and aware of his rapidly deteriorating condition. Photos accompanying Williams' suit show deep bed sores on his buttocks and ankles—evidence of atrocious neglect. He has yet to recover from those wounds nearly a year after his release from prison.

The case of Elmer Williams is only an extreme example of medical neglect that is common, not just in Florida prisons but in lockups across the country. The Constitution guarantees incarcerated people the right to basic medical care and hygiene, but indifference, staff shortages, cost-cutting, and the high bar to prove an Eighth Amendment violation have turned its ban on cruel and unusual punishment into a broken promise. Reason has previously reported on how federal prison officials let a man with treatable cancer waste away while lying to a judge about his treatment; how a woman died in federal prison after suffering in pain for eight months while waiting for a routine CT scan; and how prisoners in Arizona died excruciatingly painful deaths while unqualified, overworked nursing staff did nothing.

"The Constitution requires Florida prisons to provide adequate medical care to its prisoners and prohibits them from deliberately delaying treatment for serious medical needs," James Slater, one of Williams' attorneys, says. "Upon arriving at Suwannee Correctional Institution, Elmer Williams presented serious documented medical needs which rapidly worsened. Instead of providing him the treatment the prison knew he needed, prison officials and medical staff forced him to go months without the appropriate treatment resulting in his condition predictably becoming terminal."

Centurion did not respond to a request for comment. An FDC spokesperson declined to comment on Williams' case, citing the department's policy of not commenting on pending litigation.

Williams was serving a 40-year state prison sentence for burglary when he was transferred to Suwannee Correctional Institution in November of 2021. 

He had previously been treated for prostate cancer, which was in remission. However, medical intake records obtained by Williams' lawyers show that a month prior to his transfer to Suwannee he had an urgent referral to a urologist. The level of prostate-specific antigens (PSA) in his blood—an indicator of potential prostate cancer—had recently spiked.

Around the same time he transferred to Suwannee, Williams also started losing his balance and falling. He began complaining of severe back pain and numbness in his legs. On November 18, 2021, he fell out of his bunk and tried to declare a medical emergency. However, Williams claims that both a correctional officer and a nurse refused to provide him with a wheelchair.

Several days later, Williams was thrown in a disciplinary confinement cell for failing to show up for a job assignment, which he couldn't do without a wheelchair. The lawsuit alleges this was retaliation for Williams' writing a grievance against the nurse and correctional officer. 

"It was only many months later that Plaintiff was assigned his own wheelchair, despite the obvious and apparent need for one demonstrated over the next several months as Plaintiff became completely paralyzed from the chest down," the lawsuit says.

In the meantime, he was left alone for 30 days in a confinement cell, where he says he had to drag himself across the floor to get food or use the toilet while correctional officers mocked him.

"I'm stink [sic] more than ever now because my cell floor is pissy from me peeing on it all day when I don't have the strength to make it to the toilet," Williams wrote on December 2, 2021, in a sworn affidavit. "Haven't been given a shower in nine days because I've gone paralyzed from the delayed medical treatment."

That same day, Williams filed a grievance, complaining, "Now my life and health is in jeopardy because I'm being denied a wheelchair when I can't walk, so I can't get my bloodwork done to determine where my PSA level is at and what's wrong with me."

Williams was released from confinement later that month, and his health continued to decline. Medical records show that Williams saw the prison doctor again on December 20, 2021, complaining that he could not walk or even stand. Despite that, the doctor wrote in her notes, "I do not recommend a wheelchair at this time." The doctor also noted that she would "continue monitoring prostate issues," although she was neither a urologist nor an oncologist.

Williams was admitted to the prison infirmary on January 7, 2022, with swelling of both his legs, irregular pulse, decreased mobility, and infected pressure ulcers, also known as bed sores, on his heels. From the infirmary, he began firing off a series of grievances regarding his treatment and his rapidly deteriorating health.

On January 12, 2022, an FDC staffer handling one of Williams' grievances emailed Rebecca Yates, an FDC government operations consultant, and described Williams' litany of symptoms:

(Williams v. Dixon)

"Inmate states his legs, knees, feet and ankles are swollen to the point of exploding. He states his stomach is bloated and every time he moves he has a muscle spasm in his back and his body locks up and he can't breathe or his breathing is labored," the staffer wrote. "He states his nerves are damaged and there is little to no oxygen going to his legs. He states he has become completely paralyzed from his stomach to his toes and that area is extremely swollen. He states he needs emergency care."

"Is this an emergency?" the staffer asked Yates.

"This is not an emergency," Yates replied roughly two hours later.

It may not have been an emergency for the FDC, but Williams felt his life slipping away with every minute of delay. 

"Every day this cancer is living inside my body without treatment is another day my organs are deteriorating," Williams pleaded in a January appeal directly to the head of the FDC after one of his grievances was denied, "and who knows at what rate??"

His grievances were all rejected.

In February 2022, despite his festering wounds and encroaching paralysis, Williams was discharged from the prison infirmary and back into the general population. His lawsuit claims he was still not assigned a permanent wheelchair. Williams says he had to pay other inmates to take him to the shower, help him get his diapers on or off, and take him to breakfast. 

If no one was available or willing, he went without. When he did make it to the shower, he said he had to sit on the unsanitary floor.

"I just felt humiliated, degraded," Williams recalled in a deposition for his lawsuit. "Psychologically, I wanted to—I wanted to really like, you know, like hurt myself because that's really a low, that's a low in prison to be exposing in front of 70 some guys walking by you while you just there wiping your butt. And they wouldn't give me no diapers or nothing. I was soiling my clothes and my pants."

Sitting on the shower floor was even worse for Williams because he had developed large, infected bed sores on his buttocks during his stay in the infirmary. As his lawsuit describes it, the sores flourished into "deep necrotizing wounds on his buttocks that went all the way to his pelvis bone." 

Williams said he didn't even realize the extent of the wounds until later. "One day I just so happened to take a mirror and look back there, and I panicked," he said in the deposition. "I screamed. I screamed. The guards came. I'm like, 'What the hell is this? What happened?' And nobody could tell me what happened."

This is far from the first time the FDC has faced accusations of refusing to accommodate the most basic needs of inmates with disabilities. In 2017, the FDC settled a lawsuit by the advocacy group Disability Rights Florida by agreeing to provide accommodations, including wheelchairs, to incarcerated people with disabilities. In 2021, it settled another lawsuit by Disability Rights Florida accusing it of breaching the previous settlement. Williams' lawyers are currently representing another disabled Suwannee inmate who claims staff refuse to give him enough adult diapers.

The FDC and Centurion argue in motions to dismiss Williams' suit that medical logs actually show that he was given continual, attentive care, including antibiotics, dressings for his wounds, and—eventually—an appointment with a urologist.

Williams saw a urologist in March 2022, roughly five months after his "urgent" referral. His PSA level had risen from 5.2, when he first arrived at Suwannee, to 43. The baseline PSA level for potentially active prostate cancer is 4.

In June 2022, Williams saw an oncologist, but by that time, all doctors could offer him was palliative care. The cancer had spread to his hips, spinal cord, and lymph nodes. The lawsuit claims Williams was not informed of his terminal condition until he was transferred to a state prison hospital in August.

Williams would have died behind bars, but the Florida Justice Institute (FJI), a criminal justice advocacy group, came across his case and decided he would be a good candidate for compassionate release—a Florida policy that allows some terminally ill inmates the mercy of dying at home.

"We had been looking into this issue as a way to highlight not only Florida's aging prison population, but we also represent a lot of people both in larger cases and smaller cases with disabilities," Dante Trevisani, executive director of FJI, says.

Williams had previously filed a petition for medical release, which was rejected. FJI refiled the petition on Williams' behalf. He was released from FDC custody in October of last year.

At a real hospital, doctors gave Williams six months to live. He has outlived his prognosis, but he struggles to cope with the diminished quality of life he's been left with. Since arriving at the hospital, he's spent all but 15 minutes lying in the same bed, in the same room.

"I'm hanging in there, but it's very, very hard. Getting used to living this type of life is very difficult mentally," Williams says. "From the pain all the time, and because I only get a visit maybe two times, three times a week, so I'm left here on my back, just suffering, day by day."

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Time to Pass the Afghan Adjustment Act Tue, 15 Aug 2023 16:35:23 +0000 Afghan evacuees arrive at Dulles International Airport in Virginia | Rod Lamkey - CNP/Polaris/Newscom
Afghan evacuees arrive at Dulles International Airport in Virginia
Afghan evacuees arrive at Dulles International Airport in September 2021 (Rod Lamkey - CNP/Polaris/Newscom)


Today is the second anniversary of the fall of Kabul and the loss of Afghanistan to the oppressive Taliban regime. In the aftermath of the fall, the US took in thousands of Afghans fleeing the brutal new government, including many who had fought on the side of the US or worked to promote human rights. Unfortunately, to this day, the US government still has not granted permanent residency to Afghans who entered the US based on  executive "parole." As a result, most of the Afghans remain in legal limbo, making it difficult for them to fully integrate into American society. That's bad for both them and the US economy.

Congress can easily fix the problem by passing an Afghan Adjustment Act—legislation that would grant Afghan parolees permanent residency and work permits. But, so far, they haven't found the political will.

Washington Post columnist Catherine Rampell, one of the best media commentators on immigration issues, summarizes this unfortunate state of affairs:

Mahnaz Akbari was supposed to be one of the lucky ones.

The former commander of an Afghan military all-female special ops team, Akbari was among the 77,000 U.S. allies successfully evacuated to the United States when the Taliban retook her country. An additional 200,000 or so are trapped abroad, awaiting processing by the U.S. government.

But her place in the country that took her in is precarious.

"I'm in a legal limbo," she says. That's because, almost two years after the United States withdrew its last forces from Afghanistan, Congress has failed to deliver on the promises made to our allies in America's longest war…..

The U.S. government pledged to protect those who aided our military and diplomatic interests. But it never fully developed the legal and administrative capacity to do so. Most of those we hastily evacuated from Afghanistan ended up coming here through a sort of short-term workaround measure, full of temporary and uncertain extensions, called "humanitarian parole…."

Akbari remains immensely proud of her service to her country. She is eager to resume serving by joining the U.S. military but cannot do so until she gets a green card.

Which, for the foreseeable future, is unavailable.

Like many other Afghans who entered through parole, she has applied for asylum — a separate, convoluted and notoriously backlogged process. It's supposed to be expedited for Afghan parolees, but only a tiny sliver of Afghan applicants have been successfully adjudicated, with the rest stuck in what could be a years-long queue…..

Akbari fears that, by the time her asylum application is settled and she subsequently becomes eligible to apply for a green card, she will be too old to serve in the U.S. military.

In the meantime, she says she's grateful for opportunities she has been granted in the United States, including many facilitated by U.S. service members she once worked alongside. But she finds it difficult to plan a future, because many prospective employers are reluctant to hire someone whose ongoing work eligibility remains uncertain.

The Biden Administration has eased the situation somewhat by giving Afghan parolees the opportunity to apply for a two year extension to their initial two year parole period. But this is just a temporary reprieve. And people like Akbari remain barred from opportunities (including military service) that are only open to permanent residents. Moreover, like the initial grant of parole, the extension rests entirely on executive discretion. What Caesar giveth, he (or a successor) can taketh away.

Passing an adjustment act can fix these problems. Historically, Congress has in fact enacted such legislation for other parolees fleeing war and oppression, including Hungarians and Cubans fleeing communism, and—most closely analogous to the Afghan situation—Vietnamese fleeing the fall of South Vietnam. It should do the same thing here.

In an August 2021 post, I went over the many reasons why the US should grant refuge to Afghans fleeing the Taliban. They include general moral considerations against barring refugees fleeing violence and oppression, the unusually heinous nature of the oppression Afghans face under Taliban rule (worse than most "ordinary" dictatorships),  national security interests, and the US government's significant share of responsibility for the Taliban's return to power (both the Trump and Biden administrations deserve hefty shares of blame).

I won't go over these points again here. I will merely note that all of them justify granting permanent, not just temporary refuge. The oppression the parolees face if forced to return is just as bad now as two years ago. And granting permanent refuge will serve US national security and foreign policy interests better than a mere temporary reprieve. People who aid US forces in war and help promote human rights in alliance with us should know that we will give them permanent refuge, if needed, not just a brief stay of execution.

As I have previously pointed out, many of the same considerations also justify granting permanent residency to Cuban, Venezuelan, Ukrainian, and other parolees. In addition to the Afghan Adjustment Act, Congress is also now considering a Ukrainian Adjustment Act and a Venezuelan Adjustment Act.

All should be enacted. But if political constraints allow passage of some but not others, that's still much better than nothing. As always, the best should not be the enemy of the good.

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]]> 23 Afghan evacuees arrive at Dulles International Airport in September 2021
D.C. Circuit Revives Viewpoint Discrimination Suit Against District of Columbia Tue, 15 Aug 2023 15:52:00 +0000 Today the U.S. Court of Appeals for the D.C. Circuit revived a lawsuit agaisnt the District of Columbia for selective enforcement of the district's defacement ordinance in violation of the First Amendment. Judge Rao wrote for the court in Frederick Douglass Foundation v. District of Columbia, joined by Judge Childs, reversing the district court's dismissal of the Foundation's First Amendment claim, but affirming dismissal of an Equal Protection claim. Judge Wilkins concurred in the judgment.

Judge Rao's opinion for the court summarizes the case and decision as follows:

The First Amendment prohibits government discrimination on the basis of viewpoint. "To permit one side … to have a monopoly in expressing its views … is the antithesis of constitutional guarantees." City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp. Relations Comm'n, 429 U.S. 167, 175–76 (1976). The protection for freedom of speech applies not only to legislation, but also to enforcement of the laws. This case concerns a constitutional challenge to the selective enforcement of the District of Columbia's defacement ordinance against some viewpoints but not others.

In the summer of 2020, thousands of protesters flooded the streets of the District to proclaim "Black Lives Matter." Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District's defacement ordinance, yet none of the protesters were arrested. During the same summer, District police officers arrested two pro-life advocates in a smaller protest for chalking "Black Pre-Born Lives Matter" on a public sidewalk.

The organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America (collectively "the Foundation"), sued. The Foundation alleged violations of the First and Fifth Amendments, conceding the defacement ordinance was facially constitutional, but arguing the District's one-sided enforcement of the ordinance was not. The district court dismissed the complaint. Concluding the First Amendment and equal protection claims were essentially the same, the district court held the Foundation had failed to adequately allege discriminatory intent, which the court considered a necessary element of both claims.

We affirm the district court's dismissal of the Foundation's equal protection claim because the Foundation has not plausibly alleged invidious discrimination by District officials. Discriminatory motive, however, is not an element of a First Amendment free speech selective enforcement claim. The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government's motive. We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. We therefore reverse the dismissal of the Foundation's First Amendment claim and remand for further proceedings.

Judge Rao notes that selective enforcement claims are hard to substantiate, but that the Foundation plausibly alleged such selective enforcement here.

Selective enforcement claims must clear a high hurdle. Because the lawful exercise of prosecutorial discretion does not violate the Constitution, disparate enforcement of a neutral ordinance based on viewpoint is unlawful only when the prosecutorial factors are similar, and "unlawful favoritism" remains the predominant explanation for the government's targets. . . . The Foundation has plausibly alleged that when chalking the "Black Pre-Born Lives Matter" message, its advocates were similarly situated to advocates who painted and marked the "Black Lives Matter" message. . . .

Viewpoint discrimination, whether by legislative enactment or executive action, violates the First Amendment. "Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking." Police Dep't of Chi. v. Mosley, 408 U.S. 92, 96 (1972). We hold the Foundation has plausibly alleged the elements of a free speech selective enforcement claim. We may reasonably infer from the Foundation's complaint, first, that its members were similarly situated to other protesters who were not arrested and, second, that the District engaged in viewpoint discrimination by enforcing the defacement ordinance against individuals chalking "Black Pre-Born Lives Matter" but not against individuals painting and chalking "Black Lives Matter."

And from her concluding paragraphs:

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others. During the summer of 2020, the District arrested individuals chalking "Black Pre-Born Lives Matter" on the sidewalk, while making no arrests against the many individuals marking "Black Lives Matter" on sidewalks, streets, and other property. The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.

This is a significant case.

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Trump and 18 Others Charged With Election-Related Crimes in Georgia Tue, 15 Aug 2023 13:30:26 +0000 Close up of Donald Trump wearing red MAGA hat on August 14, 2023 | Rich Graessle/Icon Sportswire CGV/Rich Graessle/Icon Sportswire/Newscom

Latest Trump indictment alleges "racketeering enterprise to overturn Georgia's presidential election result." The last of the expected criminal indictments against former President Donald Trump has dropped. This one, which comes out of Fulton County, Georgia, relates to Trump's attempts to influence Georgia officials to invalidate the results of the 2020 presidential election, as well as Trump and his allies' wider scheme to publicize and prove voter fraud claims and to assemble a spate of alternate Electoral College electors who would cast votes for Trump rather than Joe Biden.

Trump and his associates are charged with 41 criminal counts overall, including conspiracy to commit election fraud, conspiracy to defraud the state, and violating Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act.

Thirteen of these counts are applied to Trump, who is charged with a RICO violation, three counts of solicitation of violation of oath by a public officer, two counts of conspiracy to commit forgery, two counts of conspiracy to commit false statements and writings, two counts of making false statements and writings, conspiracy to commit impersonating a public officer, conspiracy to commit filing false documents, and filing false documents.

Eighteen people—including Rudy Giuliani, Mark Meadows, and Sidney Powell—were indicted along with Trump yesterday. Giuliani, who was serving as Trump's personal lawyer during the time period in question, faces 13 charges, including violation of Georgia's RICO Act, three counts of solicitation of violation of oath by a public officer, and three counts of false statements and writings. Powell—who filed a number of lawsuits challenging the 2020 election results—faces seven charges, and Meadows, Trump's chief of staff in 2020, faces two.

"The indictment alleges that rather than abide by Georgia's legal process for election challenges, the defendants engaged in a criminal racketeering enterprise to overturn Georgia's presidential election result," said Fulton County District Attorney Fani Willis at a press conference Monday night. Willis said she intends to try Trump and his 18 co-defendants as a group and will ask for a trial date within six months

Willis' case covers some of the same territory as the recent federal indictment against Trump but includes more Georgia-specific allegations of election meddling.

The indictment covers Trump's January 2, 2021, call to Georgia Secretary of State Brad Raffensperger in which he urged Raffensperger to "find" the votes needed to deliver Trump a victory. It also includes claims related to lesser-known schemes, including an allegation that Trump associates stole data from voting machines in Coffee County, Georgia, in an attempt to find evidence of voter fraud.

"Trump and the other Defendants charged in this Indictment refused to accept that Trump lost [the 2020 election] and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump," alleges the indictment. "That conspiracy contained a common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and in other states." Elements of this alleged racketeering activity—committed by Trump and/or his lawyers, staff, and associates—include:

• making false statements about election fraud to a Georgia General Assembly hearing in order to "persuade Georgia legislators to reject lawful electoral votes" and soliciting lawmakers "instead to unlawfully appoint their own presidential electors for the purpose of casting electoral votes for Donald Trump";

• making false statements to the governor, the secretary of state, and the state speaker of the House of Representatives and encouraging them "to violate their oaths" to the Georgia and U.S. constitutions "by unlawfully changing the outcome" of the election in Trump's favor;

• recruiting people "to convene and cast false Electoral College votes" and distributing false documents for this purpose;

• falsely accusing Fulton County election worker Ruby Freeman of election crimes;

• soliciting U.S. Department of Justice officials "to make false statements to [Fulton County's] government officials";

• soliciting Vice President Mike Pence to reject Electoral College votes from Fulton County, Georgia;

• conspiring "to unlawfully access secure voting equipment and voter data … including ballot images, voting equipment software, and personal voter information";

• filing false documents, making false statements, and committing perjury "in furtherance of and to cover up the conspiracy."

Trump and the other defendants are accused of 161 overt acts in furtherance of their "criminal enterprise." Here's a small sampling:

Act 24: "On or about the 3rd day of December 2020, RUDOLPH WILLIAM LOUIS
GIULIANI committed the felony offense of FALSE STATEMENTS AND WRITINGS, in violation of O.C.G.A. § 16-10-20, in Fulton County, Georgia, by knowingly, willfully, and unlawfully making at least one of the following false statements and representations to members of the Georgia Senate present at a Senate Judiciary Subcommittee meeting: 1. That at least 96,600 mail-in ballots were counted in the November 3, 2020, presidential election in Georgia, despite there being no record of those ballots having been returned to a county elections office; 2. That Dominion Voting Systems equipment used in the November 3, 2020, presidential election in Antrim County, Michigan, mistakenly recorded 6,000 votes for Joseph R. Biden when the votes were actually cast for Donald John Trump."

Act 26: "On or about the 3rd day of December 2020, DONALD JOHN TRUMP caused to be tweeted from the Twitter account @RealDonaldTrump, Wow! Blockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems when Republicans were forced to leave the large counting room. Plenty more coming, but this alone leads to an easy win of the State!"

Act 33: "On or about the 6th day of December 2020, SIDNEY KATHERINE POWELL entered into a written engagement agreement with Sullivan Strickler LLC, a forensic data firm located in Fulton County, Georgia, for the performance of computer forensic collections and analytics on Dominion Voting Systems equipment in Michigan and elsewhere. The unlawful breach of election equipment in Coffee County, Georgia, was subsequently performed under this agreement."

Act 78: "On or about the 14th day of December 2020, RAY STALLINGS SMITH III and DAVID JAMES SHAFER encouraged certain individuals present at the December 14, 2020, meeting of Trump presidential elector nominees in Fulton County, Georgia, to sign the document titled CERTIFICATE OF THE VOTES OF THE 2020 ELECTORS FROM GEORGIA."

Act 100: "On or about the 30th day of December 2020, DONALD JOHN TRUMP caused to be tweeted from the Twitter account @RealDonaldTrump, Hearings from Atlanta on the Georgia Election overturn now being broadcast. Check it out. @OANN @newsmax and many more. @BrianKempGA should resign from office. He is an obstructionist who refuses to admit that we won Georgia, BIG! Also won the other Swing States."

Among the 18 Trump co-defendants are several lawyers involved in helping Trump try to stay in power after the 2020 election. This includes John Eastman, who—along with Giuliani—urged Georgia state senators to disregard the 2020 election results and appoint pro-Trump electors, and Kenneth Chesebro, who helped Guliani and Eastman push the fake-elector scheme in six states including Georgia.

A handful of Georgia Republican officials and operatives face charges. David Shafer, former chairman of the Republican Party of Georgia, faces eight counts related to his organizing and chairing of the Trump elector meeting in December 2020. Shafer "also served as an elector and stated during the meeting that the electors were meeting and voting purely to preserve their legal remedy in the event a election challenge prevailed in court," notes The Washington Post. Shawn Still, who is now a Georgia state senator and formerly served as finance chairman for the Republican Party of Georgia, was also charged for his role in facilitating the fake elector meeting.

Former Coffee County elections supervisor Misty Hampton (also known as Misty Martin) is charged with making and disseminating a video that purported to show how voting machines could be warped. "Surveillance footage shows that Hampton was at the elections office on Jan. 7, 2021, when computer forensics contractors working with [Scott] Hall and pro-Trump lawyers copied the county's election software," notes the Post.

An activist recorded Hall—who also faces charges—"saying in a telephone call that he had arranged for a plane to ferry people to Coffee County and accompanied them as they 'went in there and imaged every hard drive of every piece of equipment' and scanned ballots," the Post reports. "Hall claimed on the call that they obtained necessary permissions from authorities."

Illinois pastor Stephen Cliffgard Lee was charged with attempting to influence witnesses, after "traveling to the home of Ruby Freeman, a Fulton County, Georgia, election worker, and speaking to her neighbor," states the indictment. Lee's intent was "to knowingly engage in misleading conduct toward Ruby Freeman, by purporting to offer her help, and with intent to influence her testimony in an official proceeding" concerning the election, it alleges.

The indictment links together a lot of related and relatively unrelated conduct from a bunch of disparate people, some acting directly in concert with Trump and his legal team and some much further removed. This is the troubling thing about RICO charges, which are popular among state and federal prosecutors.

RICO lets prosecutors lump together a bunch of people under one prosecution by defining their individual efforts as, together, constituting a racketeering enterprise. Under this umbrella, defendants can face more severe penalties than they otherwise would for individual acts, and conduct that may not be strictly illegal on its own can be defined as evidence of criminal activity.

"Intended as a weapon against organized crime, RICO has instead been turned against labor unions, abortion protesters, and investment firms," Reason pointed out in a March 1990 piece about federal RICO statutes. The vague contours of the federal RICO statute and its state analogs allow it to be used against all sorts of legal businesses or loosely-related groups of people while making defenses against RICO charges difficult.

Ironically, one of the people now indicted in Georgia on RICO charges—Rudy Giuliani—"made RICO famous in the 1980s," as His RICOing of alleged white-collar criminals completely confounded the purpose, text, and history of the statute. But his cases made headlines."


The beauty of microschools. Christian Science Monitor takes a deep dive into this educational trend:

Ask a dozen microschool leaders to describe their schools, and you'll likely receive a dozen slightly different responses: Montessori-inspired, nature-focused, project-based, faith-oriented, child-led, or some combination of other attributes. They may exist independently, as part of a provider network, or in partnership with another entity such as an employer or a faith organization. Their schedules vary, too. Some follow a typical academic calendar, while others operate year-round, and some allow students to attend part time.

In other words, there is no one-size-fits-all definition for microschools. But, in general, they're intentionally small learning environments. They often serve fewer than 30 students total and operate as learning centers to support home-schooled students or as accredited or unaccredited private schools. Their exact designations differ based on state laws.

"What I love about microschools is that [they're] kind of providing this middle ground between public school or home schooling," says Dalena Wallace, founder and president of Wichita Innovative Schools and Educators, a support network for alternative education models.

More here.


A link tax won't save the newspaper industry, warns Cato Institute Research Fellow Paul Matzko in a new policy analysis:

In hopes of reviving the floundering newspaper industry, Congress is looking to an Australian‐​inspired system of mandatory bargaining that would force Big Tech to cross‐​subsidize Big Ink. However, the early returns from Australia's "link tax" regime—as well as the history of Congress's last attempt to protect newspapers from competition in 1970—show that the Journalism Competition and Preservation Act (JCPA) could have serious negative consequences for both newspapers and consumers. The JCPA would neither promote industry competition nor preserve legacy newspapers. It would propel further industry consolidation and reward rent seeking from tech corporations and hedge funds. Furthermore, it would create a novel "quasi‐​property right" in information that could tear apart the internet, destroy much of the value of the online news ecosystem, and deprive consumers of access to news and information. Rather than creating perverse incentives, policymakers would better serve the public interest by looking to emergent forms of new news media as a substitute for legacy modes of journalism.

More here.


• Maui wildfires have claimed at least 99 lives as of Monday.

• Firefighters in the Maui County neighborhood of Lahaina found fire hydrants there had run dry. "The collapse of the town's water system … is yet another disastrous factor in a confluence that ended up producing what is now the deadliest U.S. wildfire in more than 100 years," reports The New York Times. "The lack of water forced firefighters into an extraordinary rush to save lives by risking their own."

Reason Senior Editor Stephanie Slade reviews Sohrab Ahmari's Tyranny, Inc.

• The Biden administration is urging the U.S. Supreme Court to take up NetChoice's challenges to Florida and Texas social media laws.

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Can Court Retroactively Seal or Pseudonymize Case, After Items Have Been in the Public Record for Months or Years? Tue, 15 Aug 2023 12:01:00 +0000 From Ford v. Norton, decided Friday by Judge Noel Hillman (D.N.J.):

Plaintiff …, presently incarcerated in the Hudson County Jail in Kearny, New Jersey, filed a Complaint against several police officers and Cumberland County prosecutors. On January 5, 2023, the Court dismissed the Complaint without prejudice in accordance with 28 U.S.C. § 1915(e)(2) because it failed to state a claim. The Court denied leave to amend as futile because Plaintiff's illegal search and false arrest claims were barred by the statute of limitations and his malicious prosecution claims were premature.

On July 10, 2023, the Court received a letter from Plaintiff that asked the Court to "take the case down entirely" or to change his name to a pseudonym. He states the complaint concerned his activity as a confidential informant and put him "in extreme danger." The Clerk docketed the letter as a motion to modify or correct the Court's order and filed it under temporary seal pending the Court's review. Plaintiff later filed a motion to seal raising the same concerns as his prior letter.

"It is well-settled that there exists, in both criminal and civil cases, a common law public right of access to judicial proceedings and records." "The public's right of access extends beyond simply the ability to attend open court proceedings. Rather, it envisions a pervasive common law right to inspect and copy public records and documents, including judicial records and documents." However, "[t]he public's common law right to access judicial records is not absolute. Instead, when the right exists, there is a strong presumption that the public may view the records."

A party seeking to seal portions of the judicial record from public view "must show 'that the material is the kind of information that courts will protect and that disclosure will work a clearly defined and serious injury to the party seeking closure.'" The "'strong presumption' of openness does not permit the routine closing of judicial records to the public." … "In delineating the injury to be prevented, specificity is essential. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient."

The Court is sympathetic to Plaintiff's concerns and certainly does not wish him any undue risk of harm; however, the submissions he seeks to seal are his own submissions to the Court and the Court's proper response to them. The public is entitled to know when relief is sought from a public-funded court and the resolution of those claims.

Moreover, Plaintiff filed his complaint in January 2022 and submitted many exhibits to the docket. It was by his own volition that he disclosed certain facts in his pleadings and not the act of any third party. He made no request to file anything under seal until after the Court issued its opinion.

In the unlikely event that Plaintiff would have been allowed to proceed anonymously, the time to make such a request was before the placement of filings on the public docket, not after. What was done cannot be undone without violating the First Amendment right of access to public information. The Court "simply do[es] not have the power … to make what has thus become public private again." Gambale v. Deutsche Bank AG (2d Cir. 2004). "The genie is out of the bottle …. We have not the means to put the genie back." …

Note, though, that the law isn't firmly established on this question. Several circuits have sharply criticized retroactive pseudonymity. See Singh v. Amar, 2023 WL 3267851, *1 (7th Cir. May 3, 2023) ("Retroactive anonymity is an oxymoron and it is never appropriate to seal entire appeals."); Kansky v. Coca-Cola Bottling Co., 492 F.3d 54, 56 n.1 (1st Cir. 2007); cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 & n.11 (2d Cir. 2004) (concluding—as to sealing more broadly, rather than just pseudonymity—that, once "the genie is out of the bottle" and "the cat is out of the bag," "the ball game is over," even when that stemmed from a court's own error). For a sample of the district court decisions taking this view, see, e.g., Doe v. Amar, 2023 WL 4564404, *4 (C.D. Ill. July 17, 2023); Stankiewicz v. Universal Com. Corp., 2017 WL 3671040, *1 (S.D.N.Y. Aug. 9, 2017); Doe v. F.B.I., 218 F.R.D. 256, 260 (D. Colo. 2003). Amar and Kansky involved alleged mental health problems, which are often seen as private, and which might have justified pseudonymity if it were promptly sought. Some of the cases noted that the information had been in the public domain a long time; query whether they would have been more open to retroactively sealing or pseudonymizing something after it was in the public record for just a few days.

Other courts, however, allow retroactive pseudonymity and retroactive sealing. At least two Ninth Circuit orders have taken this view. See Order, Doe v. Garland, No. 19-56522 (9th Cir. May 31, 2023) (ordering that "[t]he Clerk will replace appellants name with John Doe on the public docket," though without any publicly available analysis); Order, Doe v. Preciado, No. 10-56218 (9th Cir. July 10, 2012) (likewise). And for a sample of the lower federal court decisions on this side, see, e.g., Doe No. 1 v. United States, 143 Fed. Cl. 238, 241 (2019) ("the Government's 'cat is out of the bag' argument fails because the fact that Plaintiffs have not been harassed or attacked yet does not imply that anonymizing their names now has no value"); Roe v. Doe, 2019 WL 1778053, *4 (D.D.C. Apr. 23, 2019); Order, Doe v. Bryson, No. 1:12-cv-10240 (D. Mass. Sept. 10, 2021).

Finally, for a particularly vivid illustration of the split, see the attempts by Darren Chaker (also known as Darren Delnero) to retroactively pseudonymize and seal many cases that he had filed, often years ago; for instance, this recent decision canvasses some of those cases.

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The Battlefields of Cable Tue, 15 Aug 2023 12:00:23 +0000 24/7 Politics: Cable Television & the Fragmenting of America From Watergate to Fox News, by Kathryn Cramer Brownell. | Princeton University Press

When C-SPAN's cameras came to Congress in 1979, a wave of bloodless guerrilla maneuvers followed. Newt Gingrich, in those days a brash young Georgia congressman, led an insurgent cell of Republicans looking for ways to make the cameras work for them. One of their techniques was to deliver so-called "special order" speeches when the day's business was over, which in addition to airing live on cable could be shared with local channels back home.

"These speeches frequently called out the Democratic opposition directly, daring them to respond," the Purdue historian Kathryn Cramer Brownell writes in 24/7 Politics, a new history of cable news and the regulatory forces that shaped it. "But nobody did," she adds, "because the legislative session had ended and everyone was gone." Not that you could tell that by watching the show, since the camera's eye stayed fixed on the person speaking.

On May 10, 1984, House Speaker Tip O'Neill (D–Mass.) launched a counterinsurgency. As part of the deal that had allowed C-SPAN into the legislature, the channel had agreed to let the House have control of the cameras. And so as Rep. Bob Walker (R–Penn.) was delivering an address accusing Democratic staffers of altering congressional records to distort or conceal events, the camera suddenly started to pan across the floor, showing that what might have seemed like one side of a heated debate was in fact a man speaking to an almost entirely empty room.

Once Walker realized what was happening, he started to huff and puff about it, declaring on live television that this was "one more example of how this body is run, the kind of arrogance of power." One need not admire the congressional leadership of the 1980s to recognize that those shots of the House floor were themselves an act of transparency—the very thing that Walker had theoretically been demanding—and that reacting this way to being caught only made the congressman look sillier.

It would not be the last time one of those camera pans injected a little comedy into Congress. One of the most prolific special-order speakers was Bob Dornan, a Southern California Republican who mixed hard-core right-wing politics with a born ham's penchant for showmanship. (He had been an actor and a talk show host before he went into politics, and his uncle had played the Tin Man in The Wizard of Oz.) One evening in 1987, Dornan stood virtually alone on the House floor denouncing Oliver Stone's film Platoon, which he insisted on calling Spittoon. In the midst of this, he announced that he would be sponsoring a screening of The Hanoi Hilton, a Vietnam movie that he liked much better. "I invite all my colleagues to come," he declared, sweeping his arm as though to gesture to the congressmen watching just as the camera was revealing that none was present.

'We'll Really Screw These Guys'

Dornan is absent from Brownell's book, but O'Neill's clash with Walker gets a detailed retelling. And rightly so: Not merely an entertaining story, the tale illustrates how government and cable co-evolved, each constantly adjusting to the other.

(Princeton University Press)

Looking back at the transformation of television from the three-network world of the 1960s to the 500-channel universe of the '90s, it might be tempting to tell the tale as a simple march from a tightly regulated broadcast landscape to a looser, freer one. And indeed, a host of entry barriers crumbled, opening a path to more choice and competition. But which restrictions were removed, which stayed in place, and when a rule moved from one category to the other: That's a much more complicated saga.

When cable's earliest experiments in original programming started to get attention in the 1950s and '60s, the incumbent broadcasters did their best to keep the upstarts constrained. Politicians were generally happy to help them keep a lid on the competition, because the pols had an interest in keeping the press that covered them happy. (Some officials, most infamously Lyndon Johnson, had broadcast investments of their own to look after as well.)

After Richard Nixon entered the White House in 1969, the dynamic changed. The new president had an unusual level of resentment for the media, and so he loved the idea of undermining the networks' power. Usually this manifested itself not as an interest in deregulation but as a willingness to use the regulatory state as a weapon: Everything from an antitrust suit to a Fairness Doctrine complaint could be deployed against an insufficiently friendly outlet. But when Tom Whitehead, the head of the new Office of Telecommunications Policy, raised the prospect of allowing more competition in the TV market, Nixon recognized that this too would aggravate his enemies, telling his aide Charles Colson that cable "will really stir them up." (Colson caught on immediately. "We'll really screw these guys," he replied.) Soon Whitehead was working both the hyper-regulatory and the deregulatory sides of the Republican White House's media agenda: a hatchet man who bluntly told TV stations that their licenses were at risk if they were too "biased," but also a policy wonk working to let more broadcasters operate.

Whitehead's biggest deregulatory victory was the Open Skies policy, which allowed more competition in the satellite market. When AT&T and the three big TV networks called for what Brownell calls a "system of regulated monopoly" in orbit, featuring "a few dedicated satellites operated by one or two industries," Whitehead successfully pushed instead for letting pretty much any firm genuinely capable of operating a satellite to launch it. But when he tried to deregulate cable too, his efforts ran aground with the Watergate scandal.

Under President Gerald Ford, several advisers made another attempt to loosen the government's grip on cable, this time without those Nixonian resentments attached. That too went nowhere—allegedly because the idea needed more "research and analysis," but Brownell makes a compelling case that the real issue was Ford's unwillingness to anger the established media during an election year. Presidents Jimmy Carter and Ronald Reagan proved friendlier to cable, and each of their administrations removed legal restraints on the industry's activities.

But the cablecasters' biggest boost turned out to be Whitehead's Open Skies policy. It wasn't immediately obvious just how much of a boon for the medium this would be. But as broadcasters gradually realized that they could distribute programs to cable systems via satellite, the programmers' reach and revenue took off—and so did viewers' options.

While the skies were opening, a much messier political process was unfolding on the ground. In most of the country, a cable company wasn't allowed to operate without a franchise agreement with a local government—and most local governments allowed just one cable company on their turf, usually in exchange for various concessions. This fostered a fair amount of corruption on the local level and corporate consolidation on the national level. Here and there, some jurisdictions did allow free entry to the cable market, demonstrating that a better system was possible.

The federal Cable Communications Policy Act of 1984 is usually described as a deregulation bill, and Brownell follows suit. But it did not make a serious attempt to open up those local monopolies to competition; it just set a more stable set of rules for the franchise agreements. It gave the cable industry more room to grow, but its growth was deeply entangled with the government.

In his 1996 book Selling the Air, the sociologist Thomas Streeter suggested that the cable boom came "not so much because regulations were simply eliminated, but because, beginning in the early 1970s, cable's status among the policy community was changed from industry threat to industry component; haltingly, sometimes awkwardly, but nonetheless systematically, those with influence surrounding the [Federal Communications Commission] came to bring cable into the fold." Instead of "a radical change in industry structure toward entrepreneurialism," we got "a series of incremental adjustments within the existing oligopolistic…system of electronic media. Cable has not revolutionized the basic corporate liberal structure of television; it has been integrated within it." Just as C-SPAN and Congress adapted to each other, so did the new industry and the old corporate state.

News Guerrillas

The earliest cable news channels tended to be primitive affairs: an Associated Press wire machine, a camera pointed at it, and not much else. But as video equipment became cheaper and more portable, the late '60s and early '70s saw a wave of countercultural experiments with DIY TV shows, as young reporters with long hair picked up Portapaks and started shooting freewheeling low-budget documentaries.

Their work begat radical visions of a more participatory media future. In his 1971 manifesto Guerrilla Television, Michael Shamberg warned that our "capacity to survive as a species" was threatened unless we redesigned our "overly-centralized, low-variety" television system. With "new video modes like portable videotape, cable television, and videocassettes," he promised, we could "restore a media-ecological balance to TV."

One irony of that era's cable battles is that those visionary hippies found themselves on the same side, more or less, as the Nixon administration. But as Brownell notes, activists of the left and right disliked at least two of the same things about TV: "the economic concentration of a monopolistic network system" and "the bias in newsrooms where white male liberal elites made decisions about public affairs programming." Shamberg himself wrote that Nixon's media-bashing vice president, Spiro Agnew, was "right about broadcast television being a system that minimizes diversity"—though he added that Agnew seemed to want "his viewpoint in place of others, not alongside them."

As cable became more popular, further experiments in public-affairs programming followed, from MTV News to the Christian Broadcasting Network. Various politicians discovered that they could create content directly for cable too. But the two most important developments, each emerging at the end of the Carter years, were C-SPAN and CNN.

C-SPAN was the brainchild of Brian Lamb, who had worked for Whitehead at the Office of Telecommunications Policy, and it was sponsored by the cable industry, which hoped the channel would prove the medium's value. Between its noncommercial ethos, its commitment to shining a light on the government's inner workings, and its Warholian willingness to let a motionless camera run while nothing appeared to be happening, C-SPAN was one of the few national cable channels of the 1980s that resembled those old hippie dreams of what TV could be. But it was also a creature of the milieu it covered, a place where Bob Walkers and Tip O'Neills could jockey for position. If this was guerrilla television, it wasn't the sort the New Left had imagined a decade before. It was a landscape for folks like Gingrich to conduct guerrilla warfare.

CNN founder Ted Turner saw his creation as a guerrilla force too: After beating back ABC's attempt to launch a competing cable news channel, the future Mr. Jane Fonda crowed that his rival had "pulled out like the U.S. did in Vietnam." But while CNN in its scrappy-upstart days had some things in common with C-SPAN—each fostered and thrived in a low-budget environment of experimentation—it was brash, fast-paced, and profit-driven, three things C-SPAN was not. Turner's position in the TV landscape of the 1980s had some similarities to the position Elon Musk occupies in social media today: He felt alienated from the elite while still clearly being a part of it, running an enterprise that wasn't a radical alternative but perhaps qualified as a semi-independent center of power.

As cable adjusted itself to the demands of politics, politicians adjusted themselves to the world of cable. Those adjustments did not all move at the same speed. In the 1988 election, Brownell shows, the Republicans were better at exploiting the new medium; in 1992, the Democrats proved more cable-savvy. The man elected in '92, Bill Clinton, soon developed a symbiotic relationship with an operation that a decade earlier had hardly seemed political at all: MTV News.

Brownell's main narrative ends in the '90s. But an afterword flashes forward to a rather different symbiosis between a White House and a green room, with Clinton replaced by Donald Trump and MTV by Fox News.

The Nixon-Hippie Utopia

Brownell is an excellent historian, and her account of cable's evolution from the period right after World War II to the period right after the Cold War is among the best I have read. But I fundamentally disagree with one theme of her book. While she is very aware of the limits of the three-network model that cable displaced, Brownell has some nostalgia for the regulations that required those networks to present programming in "the public interest." Without those rules, she worries, profit-driven broadcasters have "prioritized keeping viewers' attention rather than informing citizens."

I don't have the same fondness for those requirements, which even at their broadest and most benign were still government controls on speech. I also think it overly reductive to claim, as she does, that in the cable age "more Americans became engrossed in watching sports and movies and ignored politics altogether, ultimately affording a more outsized role for extreme voices to shape the political process." Ignoring politics is a longstanding American tradition, whether or not the evening news is competing with a game on ESPN. And civic participation has moved both up and down since the cable boom began, with its direction depending not on how good the HBO lineup was on each Election Day but on the issues and candidates before the voters.

This thread of the book is at its weakest when Brownell discusses the 1996 election. After reporting the cable industry's claims that "diversity on the dial, expanded coverage, and personalized news could come together to inform voters and promote civic engagement," she declares that "the numbers told a different story," since "fewer than 50 percent of voters went to the polls." But 1996 was the most low-stakes presidential race of my lifetime, the sort of contest where even the best-informed Americans might be tempted to stay home. I wouldn't expect it to have a high turnout in any media environment.

I do not say this as a defender of cable news. C-SPAN remains as valuable as ever, but Fox and MSNBC are essentially captive to the two major parties, while CNN seems caught in a perpetual identity crisis: sometimes straining to reclaim its old centrist identity, sometimes just a more milquetoast MSNBC. (And sometimes, not that long ago, your go-to spot for live Trump rallies.) There are good journalists who work in cable, but they are tied to a format that is increasingly unbearable to watch. And while that format has a fan base, it's shrinking: Every major cable news channel's audience dropped drastically after Trump left office, and cable in general has been bleeding viewers for a decade now.

Those viewers have not been flooding back to the legacy media. When the cable audience was growing, that was seen as a sign of fragmentation: People were tuning to niche channels like Fox or CNN instead of watching the network news. Now it's a smaller cable audience that's a sign of fragmentation, as more people consume their news (and everything else) online.

And that leads to my other criticism of the book: Something is missing from the afterword. If you're going to leap from the '90s to the present, you should probably mention that at some point in-between, those avant-garde dreams of the hippie visionaries kind of…came true. It's just that those DIY broadcasts ended up flowering on YouTube and its competitors, not on cable. Yes, these platforms tend to be more centralized than Shamberg's TV guerrillas would have preferred; yes, creators have to contend with ham-fisted algorithmic censorship. But by the standards of 1971, we're living in the hippie utopia.

It may be the nature of every hippie utopia to eventually go through a brown-acid period, and I know it's popular these days to insist that the triumph of DIY video has become an endless bad trip. But personally, I'll take YouTube over cable news anytime.

Any time looser laws or new technologies allow a deluge of previously suppressed expression, there will be a sharp increase in both the sort of speech that the old order thought was too erudite to air and the sort of speech it found too sensationalist. There will be more room for the highbrow and more room for the lowbrow. More room for art and more room for porn. More room for C-SPAN and more room for CNN. And sometimes someone will say something thoughtful on CNN, and sometimes a sleazy camera war will break out on C-SPAN. That is what free speech looks like, and we're better off with it, in all its scuzzy excess.

24/7 Politics: Cable Television & the Fragmenting of America From Watergate to Fox News, by Kathryn Cramer Brownell, Princeton University Press, 402 pages, $35

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Be Like Pixar, Not NASA Tue, 15 Aug 2023 11:00:46 +0000 Excerpt | Photo: Buzz Lightyear, Toy Story 3; ©Buena Vista Pictures/Everett Collection

It began at 4:00 in the morning on March 28, 1979, at Three Mile Island, Pennsylvania. The nuclear reactor was operating at nearly full power when a secondary cooling circuit malfunctioned and affected the temperature of the primary coolant. This sharp rise in temperature made the reactor shut down automatically. In the second it took to deactivate the reactor's system, a relief valve failed to close. The nuclear core suffered severe damage, but operators couldn't diagnose or deal with the unexpected shutdown of the reactor in the heat of the moment.

Sociologist Charles Perrow later analyzed why the Three Mile Island accident had happened, hoping to anticipate other disasters to come. The result was his seminal book Normal Accidents. His goal, he said, was to "propose a framework for characterizing complex technological systems such as air traffic, marine traffic, chemical plants, dams, and especially nuclear power plants according to their riskiness."

One factor was complexity: The more components and interactions in a system, the more challenging it is when something goes wrong. With scale comes complexity, whether we are thinking of the technology or the organization that supports it. Imagine you run a start-up where everyone sits in the same loft space. From where you sit, you can easily see what they are all doing. In a large organization, that visibility is lost. The moment a leader can't see the inner workings of the system itself—in this case, staff activities—complexity rises.

Perrow associated this type of complexity with tech failures. At Three Mile Island, operators couldn't just walk up to its core and measure the temperature manually or peek inside to discover there was not enough coolant. Similarly, executives in a large company can't monitor every employee all the time without incurring resentment. They have to rely on indirect indicators, such as performance evaluations and sales results. Large companies also rely on complex information technologies and complex supply chains.

Another factor, wrote Perrow, was a system's coupling: the level of interdependence among its components. When systems are both complex and tightly coupled, they are more likely to produce negative unexpected consequences and get out of control.

Perrow did not include artificial intelligence (A.I.) or even software among the technologies whose interactions he charted. But using the criteria that he laid out relative to technological risk, A.I. systems fit in Perrow's framework next to nuclear power plants, space missions, and DNA sequencing. If some element isn't working according to plan, there can be unanticipated cascading effects that affect a system in wholly unexpected ways.

Tight and Loose Coupling

Tightly coupled systems have architectures—technological and social—that promote interdependence among their components and often isolation from outside connection. This makes them efficient and self-protective but less robust.

Loosely coupled systems, by contrast, have more open and diverse architectures. Changes in one module, section, or component hardly affect the other components. Each operates somewhat independently of the others. A loosely coupled architecture is easy to maintain and scale. It is also robust, in that problems don't propagate easily to other parts of the system.

Executives who run large organizations tend to favor a tightly coupled system. It is what they know. They grew up in their industries seeing a small number of people making decisions that affect millions of people. But tightly coupled systems can be harder to control. Think of a floor covered with dominoes that are lined up. When you tip one over, it will then, in sequence, knock down the entire array of dominoes—a simple example of a tightly coupled system. Now try to stop it once the domino effect is in motion. It's much harder than you would think.

A large company is also generally a tightly coupled system, especially compared to small businesses and local mom-and-pop retailers. If you have a complaint about a corner store's product, you can take it back and they'll take it in stride, handling it in a different way for each customer. They have control over their actions. If they work in a large company, or as a franchise, they are tightly coupled to the company's branding and scaled-up procedures—and to one another. Those who want to operate differently from the standard procedures must buck the tightly coupled network.

During the pandemic, we realized just how tightly coupled and interconnected our supply chains are—how one container ship stuck in the Suez Canal can delay global shipments for months. Many organizations have been looking to create more robust redundancies, effectively loosening the coupling in their supply chains by finding alternate vendors and investing in local sources.

The Formula for Disaster

Organizational sociologist Diane Vaughan is an expert on the ways systems can repeatedly engender catastrophe. She started studying the issue after the Challenger disaster of 1986, when the space shuttle exploded shortly after launch. The "technical cause," she later wrote, was "a failure of the rubber O-rings to seal the shuttle's solid rocket booster joints. But the NASA organization also failed."

NASA had been launching space shuttles with damaged O-rings since 1981. Pressured by the launch schedule, the agency leaders had ignored engineers' warnings right up to the day of the launch. In fact, within the established rules, the agency had labeled the O-ring damage an "acceptable risk."

Vaughan spent the next five years researching and writing The Challenger Launch Decision, an in-depth book about the organizational problems leading to the technological disaster. Like Perrow, she concluded that this type of organization would repeatedly produce catastrophic mistakes. After the book came out, she later noted, "I heard from engineers and people in many different kinds of organizations who recognized the analogies between what happened at NASA and the situations at their organizations. 'NASA is us,' some wrote."

Another crash, this time of the space shuttle Columbia, occurred on February 1, 2003. Another seven astronauts died. A technical review found a piece of foam had broken off and struck a wing. Once again, engineers had warned the agency and the warnings had been ignored. Once again, Vaughan became closely involved in investigating the causes, ultimately joining the government's Columbia Accident Investigation Board. She testified to the board that she had found the same organizational causes for both accidents.

In her writing on the disasters, Vaughan cites Perrow, noting that NASA's tightly coupled, complex nature made it systematically prone to occasional major errors. The key decision makers had fallen prey to a "normalization of deviance," in which dangerous complacency gradually became the ordinary way of doing things. "We can never totally resolve the problem of complexity, but we have to be sensitive to our organizations and how they work," she wrote. "While many of us work in complex organizations, we don't realize how much the organizations that we inhabit completely inhabit us. This is as true for those powerful actors at the top of the organization responsible for creating culture as it is for the people in the tiers below them who carry out their directives and do the everyday work."

In these disasters, she testified to the board, "the technological failure was a result of NASA's organizational failure."

Tightly Coupled A.I.

Software designer Alan Chan argues that some innate aspects of artificial intelligence tend to make everything it touches more complex and more tightly coupled. Even when a project is supposed to be "responsible A.I.," working with an automated algorithm can override the best intentions of the software engineers."

Although designers may try as much as possible to include all the relevant features, they may only come to know the relevance of some features after an accident informs them to that effect," says Chan. "Moreover, while a human observer is limited by the ways in which their senses interact with measurement instruments, an A.I. subsystem is limited not only by the same conditions as the human observer but also by the fact that human observers select the features for consideration. The measurement instruments may themselves be faulty, which was a crucial factor in the Three Mile Island accident."

In Perrow's parlance, "normal accidents" can be expected to increase over time in such systems. This is particularly true when not just an A.I. system itself but the organizational ecosystem around it are both complex and tightly coupled.

In the tech arena, the process of optimization itself exacerbates tight coupling. It creates strong dependencies and, therefore, ripple effects. Imagine an A.I. system tasked with allocating production resources in a supply chain. The system might have maximizing output as its only goal. This single focus would influence the whole system to couple itself more tightly.

The algorithm would resolve any tradeoffs between flexibility and optimization in favor of optimization. For instance, it would not keep reserve stocks because that would drag on inventory. The system is coded to align with the company's strategy in doing this, but in such a tightly coupled way that the system would falter under stress, as many supply chains did at the start of the COVID-19 pandemic. At various times in recent history, this dynamic led to shortages in things like protective equipment, semiconductor chips, diapers, and infant formula.

Another case of a tightly coupled A.I. system is Zillow's failed use of an automated decision-making algorithm to purchase homes. As an online real estate marketplace, Zillow was originally designed to help sellers and buyers make more informed decisions. In 2018, it opened a new division with a business model based on buying and flipping homes, using a machine learning algorithm called Zillow Offers. As home prices quickly rose during the COVID-19 pandemic, Zillow's iBuying algorithms used data such as the home's age, condition, and zip code to predict which homes would grow in value. But the system failed to take into account the radical uncertainty caused by the virus and completely underestimated rapid changes in the housing market. Moreover, there was a backlash against Zillow when a real estate agent, Sean Gotcher, created a viral video decrying the company's perceived manipulation of the housing market. By November 2021, the firm sold only 17,000 homes out of the 27,000 it had purchased.

Decoupling Zillow's home-buying business from its online marketplace may have saved the company or at least part of its reputation. Ultimately, Zillow shut down its home-buying division, cut 25 percent of the company's work force—about 2,000 employees—and wrote off a loss of $304 million in housing inventory.

To John Sviokla, who holds a Harvard doctorate in management information systems, tight coupling is directly related to the opaque nature of algorithmic systems: the closed-box effect. "If I can't look inside the system and see the weights given to different factors," he says, "then it is de facto tightly coupled. From a semantic standpoint, I can't communicate with it. I can only manage it by trying to figure out how it works, based on the behaviors it produces. I am not given access to the assumptions going in, or how it works. I either have to reject it or use it—those are my only two choices."

Chan argues that the greatest risk lies in A.I. systems that are both tightly coupled and complex within organizations that are tightly coupled and complex. Accidents are especially likely to occur when the organizational conditions are right. Since exact conditions cannot be predicted or prevented in detail and the organizational structure prevents them from being resilient, algorithmic, autonomous, and automated systems represent a continual challenge. Even when systems are working well, it is impossible to make them absolutely fail-safe from a "normal accident."

If you want to make the system safer and less harmful, you have to loosen it up.

Loosening a System

Pixar Animation Studios, the creators of the films Toy Story and Finding Nemo, has a well-known ritual that takes advantage of the studio's loosely coupled nature. Whenever a film under development hits a rough spot, the director can convene the company's "brain trust" for an in-depth critique. After the session, the director and his team decide what to do with the advice. It takes a thick skin to have a work under review, but the result is immense, tangible improvement."

There are no mandatory notes, and the brain trust has no authority," Pixar cofounder Ed Catmull explained in Harvard Business Review. "This dynamic is crucial. It liberates the trust members, so they can give their unvarnished expert opinions, and it liberates the director to seek help and fully consider the advice."

It took Pixar a while to understand why this system helped so much. "When we tried to export the brain trust model to our technical area, we found at first that it didn't work," Catmull wrote. "As soon as we said, 'This is purely peers giving feedback to each other,' the dynamic changed, and the effectiveness of the review sessions dramatically improved."

Note that Pixar's organizational design is deliberately loose. The brain trust's reactions are treated not as demands but as creative opportunities. These opportunities allow for simplicity on the other side of complexity.

Charles Perrow devoted much of Normal Accidents to a study of complex sociotechnical operations that had not ended in crisis or catastrophe. One option, he found, was to make decision making simple by focusing on just one or two activities: You centralize decision making around this relatively simple set of goals so that there is clear direction for channeling all the complexities involved. Another option was to put in place some basic organizational designs. A risk audit and oversight group may seem like yet another boring bureaucratic function, but if it is led by someone who understands loose coupling, it will be staffed by a diverse group of people who make sense of complex issues together.

And there is another alternative: to loosen the system. To bring decision making to the lowest possible level in the hierarchy, and to make sure every part of the organization can operate autonomously. To encourage people to communicate freely, so that no one small group is seen as the single source of knowledge about a key issue. To move decision making as close as possible to the point of action, and to bring people together regularly to learn from each other and avoid competing with other silos.

A.I. chatbots can tighten couplings in complex systems, intensifying the communications within them and automating the ways companies control behavior. That could lead to more disasters and missteps. But they could also loosen complex systems by providing alternative links and making it easier to seek out alternative views. Success often depends on finding someone with an outside sensibility who respects the inside priorities. Generative A.I. systems may make it easier to find those people and introduce them to one another.

There is much to learn about the interrelationship between machine behavior, human behavior, and the behavior of larger sociotechnical systems such as corporations and governments. In the end, it doesn't matter whether we think our A.I. systems are intelligent. What matters most is what they do and how they grow, and how we grow along with them.

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Today in Supreme Court History: August 15, 1938 Tue, 15 Aug 2023 11:00:43 +0000 8/15/1938: Justice Stephen Breyer's Birthday.

Justice Stephen Breyer


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Millions of Students Went 'Missing' From Classrooms During the Pandemic. Many Haven't Returned. Tue, 15 Aug 2023 10:30:01 +0000 topicseducation | Illustration: Joanna Andreasson; Source image: golero/iStock

During the first few months of the COVID-19 pandemic, a staggering number of students went "missing." Kindergarten enrollment rates dropped, and students already enrolled in classes failed to log in for online learning.

From March to October 2020, the education nonprofit Bellwether estimated, as many as 3 million students nationwide went missing from classrooms. Another estimate from FutureEd, an education think tank, found a sevenfold increase in the number of students missing at least half a school year during the pandemic.

Once in-person school resumed, many students didn't return to the classroom, nor did they register for homeschooling. No one knows exactly how to get them back.

According to the Associated Press (A.P.), California alone is missing more than 150,000 students, while New York is down nearly 60,000. In all, around 230,000 students in 21 states and Washington, D.C., are missing, which suggests that many more students are absent from classrooms nationwide. When the A.P. and Stanford University researchers analyzed data from pre-pandemic years, they found that almost no students were missing.

The government is now designing new interventions to try to keep these students from going uneducated. In 2021, Connecticut unveiled a program that sent trained visitors to the homes of more than 8,000 students. "Reaching out to family seems to be really important, because it's probably not just a student's own decision to be missing school or leaving school," says Jing Liu, an education researcher at the University of Maryland. Connecticut's program de-emphasizes the role of truancy courts to punish absent students and their guardians, a feature that should appeal to civil liberties advocates.

"It's the home visitors' job to build trust, [help parents] understand the importance of school, and [let them] know they don't need to worry and their kids are safe in school," a Connecticut State Department of Education official told Education Week in January. Nine months after their first visit, students in grades 6–12 served by the program had a 16-point increase in their attendance rates compared to chronically absent students who weren't visited.

"The key to keeping kids in school is noticing as soon as possible when they're starting to miss too much, so someone can go out and talk to them and re-engage them, and find out what would help them to come back," says Hedy Chang, executive director of the nonprofit Attendance Works. "If you let it go for months or years, you can't find them then."

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'Private Tyranny' Is Less Private Than You Think Tue, 15 Aug 2023 10:00:46 +0000 A black and white photo of a billboard reading 'World's highest wages: There is no way like the American way' | Photo: Heritage Image Partnership Ltd./Alamy

Kimberly Naranjo makes for a sympathetic protagonist. In childhood, she suffered abuse at home. In early adulthood, she struggled with addiction. But with the help of a kindly aunt, she got help, went back to school, and found a rewarding job as a drug and alcohol counselor.

Then came the mesothelioma diagnosis, which her lawyers say was caused by asbestos in Johnson & Johnson baby powder.

With less than 16 months to live, Naranjo hoped to collect damages from the megacorporation that could be used to support her children when she was gone. But her lawsuit quickly ran aground. Facing tens of thousands of potential claimants, Johnson & Johnson turned to a controversial aspect of the bankruptcy reorganization process in a bid to limit its liability. "Yes," writes the post-liberal journalist Sohrab Ahmari, "J&J—a profitable firm with a market capitalization of nearly half a trillion dollars—claimed to be broke."

This is just one in a litany of human-interest stories that Ahmari tells in Tyranny, Inc. (Forum Books), each of them eloquent and dripping with pathos. His book's goal is to show "that private actors can imperil freedom just as much as overweening governments," and his central claim is nothing if not bold: "Private tyranny precisely describes the world we inhabit today: a system that allows the asset-owning few to subject the asset-less many to pervasive coercion."

In the face of this nightmare, Ahmari says, the way forward is clear: reject unfettered markets and shift from the current "neoliberal" system to a different arrangement. Call it "social democracy," "socially managed capitalism," or—Ahmari's preference—"political-exchange capitalism": a sort of light democratic socialism in which "the state" takes "a far more active role in coordinating economic activity for the good of the whole community."

More concretely, Ahmari suggests that the state restrict international trade, encourage unionization, exert veto power over the financial sector, mandate higher minimum wages, spend far more on large-scale public works projects, and so on. He looks wistfully back at the New Deal, which he sees as a period "when government, big business, and big labor had joined hands…showcasing the productive genius of highly regulated, heavily unionized capitalism." The problem today, in his telling, is "a failure to subject the market to sufficient political control."

But hang on a moment. Careful readers of the opening anecdote might note that bankruptcy law is a creation of the state and that the judges who have handed down the decisions Ahmari laments are government employees. The bankruptcy process, in other words, is already subject to political control.

"The way to think of bankruptcy is as the least bad way we've been able to come up with for dealing with a fundamental problem, which is what do you do when there are more claims than there are assets to go around," says Todd Zywicki, a professor at George Mason University's Antonin Scalia Law School who specializes in bankruptcy and contract law. "It's an imperfect system to a fundamentally unsolvable problem….To think of it as being about private power is wrong."


This turns out to be true of several of the book's examples of "private tyranny," a reality Ahmari half-concedes. ("The point is to notice that market power is coercive power," he writes, "often relying on the state's backing and benefiting those blessed with legal sophistication at the expense of those who lack it.")

For instance, there's the Arizona family hit with a massive bill after a private emergency services provider they had never heard of, let alone signed a contract with, belatedly showed up to help put out a fire at their trailer. But such a scenario is imaginable only if the local authorities contract on residents' behalf, neglect to inform them of the terms, and then fall down at providing basic oversight of the vendor. Surely that is better described as an instance of government failure than market failure.

Then there's the former Sears auto mechanic who lost his job after a private equity firm purchased the struggling retail giant and ran it into bankruptcy. Ahmari says the man's story epitomizes the carnage wrought by a financial sector that enriches itself by buying, "looting," and then discarding the husks of once-great American companies.

That characterization is more than a bit rich. As Avik Roy, president of the Foundation for Research on Equal Opportunity, puts it, "You don't make money by stripping a company of its assets and selling them to the ground." While not every attempt will be successful, the goal of private equity is to create value by finding mismanaged businesses and turning them around.

At the same time, Ahmari's story overlooks the ways public policy introduces distortions in this space. Money printing, artificially low interest rates, and the implicit guarantee of government bailouts if things go sideways have all pumped up the financial industry, pushing people to invest in the stock market, increasing demand for ever more exotic financial instruments, and generally leading to riskier behavior than we would otherwise see. These are knock-on effects of government's attempts to manage the economy—to subject it to political control.

Ahmari is correct that coercion can be either private (as when a guy on the street puts a gun to your chest and demands you turn over your wallet) or public (as when the IRS threatens you with jail time if you refuse to pay your income taxes). But he goes much further than this, implying that unless employer and employee or producer and consumer enjoy precisely the same amount of bargaining power, coercion is necessarily at play.

This commits him to using the same label to refer to everything from "warn[ing] a bank teller that her children will be tortured unless she empties the vault" to telling customers that if they want a product, "they have to pay the price [the factory owner] demands." In one chapter, he calls it "class-based coercion" for a retail executive to record a podcast attempting to dissuade her workers from joining a union. In another, he implies that your employer abuses its power if it contractually bars you from trying to steal its clients when you leave the job.

This is colossally unhelpful. Even if you think there's something unseemly about certain types of private-sector arrangements, there has to be a way to rhetorically differentiate between a situation that involves violence or the threat thereof and a situation in which one party to a transaction merely has more market power than the other. Tyranny, Inc. stubbornly papers over all such distinctions. Under the book's logic, an employer expecting an employee to show up on time is just as guilty of coercion as is a bank robber.

Ahmari makes a half-hearted attempt to deal with this objection by stipulating that not all coercion is a bad thing. But since he repeatedly conflates coercion with tyranny, the effect is to reduce both concepts almost to meaninglessness.

It's also hard to square the apocalyptic picture Ahmari paints ("class domination," "financial misery," "the shattered edifice of middle-class dignity") with the generally positive view most people have of their own situations. Things aren't perfect, of course, but a 2022 Gallup poll found that 88 percent of the Americans who had jobs were completely or somewhat satisfied with them. The Edelman Trust Barometer reported this year that business is the only institution the global population views as both competent and ethical. Likewise, 78 percent of respondents say they trust their own employer, compared to 50 percent who say they trust the government.

The book has little to say to that, beyond telling us that "as a society we are captives of market utopianism" who "fail to notice the coercion that envelops us in the course of our routine economic activities." Well. OK, then.


Notwithstanding the survey data, it's true that all manner of things about our everyday market interactions strike lots of people as somewhere between mildly annoying and deeply unfair. The frustration of being bounced to voicemail while trying to get a customer service rep on the phone. The unpredictable schedules that make it difficult for service-sector employees to line up child care.

To be presented with, say, a nondisclosure agreement to sign on your first day of work may not be coercion in the same way the government's ability to seize your house through eminent domain is; that doesn't change the high personal costs associated with refusing to sign and having to start your job search over from scratch. Social media companies may have a First Amendment right to prohibit certain views from their platforms, but when they seem to penalize one political perspective more than another, it can just feel wrong. And Americans who perceive executive compensation vastly outpacing middle-class income growth are likely to be only so placated by a reminder that the middle class is becoming materially better off by the day (although it is).

The question is what, practically, to do about all this. Ahmari's solution is to use the heavy hand of government to brute-force outcomes he likes more. Not only is this unlikely to make things better, but it has the potential to make them much worse.

As a market participant, your bargaining power is a function of the quality of the alternatives available to you. The better your alternatives, the more credibly you can threaten to walk away, and the more concessions you'll be able to extract from the other party. The fewer your alternatives, the more unpleasantness you'll be willing to put up with.

This is why a wealthy, productive society is better for everyone. (As the economist Paul Krugman once said, "Productivity isn't everything, but in the long run, it's almost everything.") Ahmari frets about "the power of those who control most of society's assets to make others do their bidding—or go hungry," but 21st century America is rich enough that hunger is rarely the next best alternative. More often, a person may have to accept a lower salary or a less convenient commute. And this is true even for the relatively less well-off among us.

"There aren't many advantages to being a low-skilled worker, but there is one," says George Mason University economist Donald Boudreaux. "The skills that you're paid for are very versatile….You can flip hamburgers at McDonald's or Wendy's or Burger King. You can mow grass for Jewel's Lawn Care or Herman's Landscaping. And so precisely because low-skilled workers have skills that are so general—the market for them is very thick and wide—the notion that [any job is] a take-it-or-leave-it situation is absurd."

These realities should lead us to oppose government interventions that get in the way of starting new businesses and rolling out new products, because entrepreneurship and innovation increase the opportunities available to workers and consumers. Meanwhile, even well-intentioned public policies can inadvertently trap people where they are. Think of how the tax code makes it cheaper to obtain health insurance through your employer than to purchase it yourself—and how employer-provided insurance makes it harder to leave a crappy job.

Examples are everywhere. Price controls meant to protect customers lead to shortages of critical goods. Minimum wages price the lowest-skilled workers out of the labor market. Subsidies meant to bolster domestic competitiveness flow to well-established corporations at the expense of startups. And regulations, which Ahmari wants more of, put a damper on economic growth.

"The regulatory compliance burdens of the last 20 years have made it almost impossible to have small nimble firms be an alternative to these large hidebound bureaucratic companies," with their armies of lobbyists and compliance officers, explains Duke University economist Michael Munger. "There are far fewer business opportunities than there should be, and as a result, the very least well-off are subject to coercion. But the answer is not new regulatory burdens that will make it even harder for new businesses to come online but to get rid of the existing regulatory burdens, which will allow me to say, 'You know what, I'm tired of your bullshit, and I'm going to get a job somewhere else.'"

Government interventions often look good on the surface, but the tradeoffs can be enormous. A few years ago, Sen. Elizabeth Warren (D–Mass.) proposed a law mandating that large corporations hand 40 percent of their board seats to worker representatives. It's easy to wonder who could be against giving employees a say in how the companies they work for are run. But if such arrangements ultimately make firms less efficient—and if you have to mandate them, there's a good reason to expect they will—the result will be less wealth to go around, which means fewer jobs and worse compensation, at the lowest rungs especially.

The same goes for the naive embrace of laws like one Ahmari touts requiring companies "to offer laid-off employees at least a week's worth of pay for every year of service." It doesn't seem to have crossed his mind that such mandates reduce full-time employment by raising the cost of each new hire and increasing the relative attractiveness of short-term contracts, automation, offshoring, and the like. Bless his heart, perhaps he thinks he can regulate those out of existence too.


This brings us to a different problem with Ahmari's desire for "a structural overhaul in the direction of greater political control." It's not just that more government interference in the economy diminishes productivity, making society less prosperous and reducing the alternatives available to employees and consumers. It's that politicization leads to, well, politicization—decisions made not because they're in keeping with sound legal or economic principles but because they benefit groups with political connections to those holding the reins of power.

Zywicki, the law professor, points to the auto bailouts to show how this approach threatens basic justice and the rule of law. Besides providing General Motors and Chrysler with piles of taxpayer cash, the Obama administration in 2009 also stepped in to overrule the normal bankruptcy process, dictating terms under which politically favored groups (such as members of the United Auto Workers) were protected while politically disfavored groups (including secured creditors who by rights should have been first in line for repayment) got fleeced.

Ideally, "the politics comes in when you're setting up the bankruptcy laws, just like when you're setting up the corporate laws," Zywicki says. "The idea is that after that, once the laws are in place, people understand the rules, and they can contract with respect to those background rules just like in any other contractual system." What happened in 2009, by contrast, assumes that technocratic regulators know best—and have the authority to impose their will coercively on everyone else, even when it means ignoring existing legal processes.

They don't know best. And because that sort of thinking—Zywicki has called it "the New Deal vision of the regulatory state"—opens the door to making choices for reasons of political expediency, it's also likely to be a boon for the very corporations that Tyranny, Inc. wants to see reined in.

Ahmari rightly bemoans the ways that "asset owners used economic and state power to stack the deck in their favor," a phenomenon free marketeers usually refer to as "crony capitalism." He goes so far as to write that the state today "actively abets private tyranny" (emphasis his). But if he really believes that, why on Earth would he want more political control over markets, more interference in the economy, more coziness between the public and private sectors, a more powerful state?

Some amount of politics is unavoidable. Markets will struggle to function if property rights aren't enforced, for example, and that requires laws and courts. Nor does the state always get everything wrong. In February, a three-judge panel rejected Johnson & Johnson's bankruptcy petition, finding it to be an abuse of the bankruptcy system. Naranjo's children may yet get their day in court.

Finally, there's no reason we can't work through the legal and democratic processes to roll back misguided government interventions. Abolish the Export-Import Bank, which funnels billions of tax dollars to well-connected megacorporations. Quit making it so much costlier to buy health insurance on your own than through your employer (and for goodness' sake, get rid of the ban on bare-bones catastrophic plans!). Put the regulatory state on the chopping block. Constrain the Federal Reserve. And to the extent that public policies create barriers to voluntary unionization, we should be willing to scrutinize those too.

In that sense, the choice isn't really between more politics and less; it's between more government interference in our lives and less. The alternative to trusting markets to sort things out is letting the state choose winners and losers. Tyranny, Inc. leans on the assumption that you'll be happy with those choices. I wouldn't be so sure.

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Brickbat: You Pay for Our Mistake Tue, 15 Aug 2023 08:00:55 +0000 A backhoe finishes demolishing a house. | Evaulphoto |

First, the city of Atlanta demolished a house owned by Everett Tripodis without properly informing him. Now, city officials are suing him to recoup the $68,000 they claim to have spent tearing down the house. The city wants to force the sale of the lot to pay for the demolition. A local TV station found that the city building inspector's office sent letters warning the house had been condemned to Lawton Avenue, which is in the 30314 zip code. The house is actually on Lawton Street, in the 30310 zip code.

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Jack Goldsmith Responds to Critics on the Dangers of Prosecuting (or not Prosecuting) Trump for Trying to Overturn the 2020 Election Tue, 15 Aug 2023 05:55:17 +0000 Former President Donald Trump, shrugging, at the June 2023 Faith and Freedom Coalition conference. | Brian Cahn/ZUMAPRESS/Newscom
Former President Donald Trump, shrugging, at the June 2023 Faith and Freedom Coalition conference.
(Brian Cahn/ZUMAPRESS/Newscom)


In a piece at the Lawfare website, Harvard law Prof. Jack Goldsmith responds to critics of his New York Times article arguing that the dangers of prosecuting Donald Trump for trying to overturn the 2020 election may exceed the benefits. One of the critiques he addresses is my own. In this post, I will offer a rejoinder. But note that both Goldsmith's analysis and mine are focused on the federal indictment of Trump filed by special counsel Jack Smith. We do not address the more recent Georgia statement indictment.

Here's the part of Goldsmith's response that addresses my critique:

I agree that "letting Trump off the hook" might be far worse than prosecuting him. My main point is that we cannot now know, and the answer is not obvious, at least to me, especially in light of our broken politics, the novelties and uncertainties in the legal case against Trump, the weight of past Justice Department mistakes and excesses in investigating Trump, and (to add a point not in my piece) Eric Posner's reminder that "trials in which legal proceedings are used to remove political opponents from power or prevent them from taking it … have a long and storied history of backfiring on their perpetrators." If Trump is convicted, and the trial is and seems fair, and the Supreme Court upholds its validity, Smith may well be a triumphant savior of American democracy, especially if Trump self-destructs in ways that diminish him politically. But what if only a few of these things happen, or none of them?

Somin says, for example, that if Trump is not prosecuted, future presidents will be emboldened to repeat his experiment. Maybe, but maybe not, in light of the financial and reputational costs Trump has suffered. The larger point, however, is that the prosecution might go off the rails in ways that make things worse. Somin's argument appears to assume that conviction is assured. What if Trump is acquitted (including via jury nullification), or his conviction is thrown out? What if it becomes clear that what he did was not unlawful, as may well happen? What if Trump wins the presidential election and perceived overkill by the Biden Justice Department is seen as a contributing cause? These outcomes might well embolden a future Trump more, perhaps much more, than non-prosecution. Very hard to say. In assessing the upsides and downsides of the prosecution, one must think in terms of all plausible futures and counterfactuals. Yes, as I said in the opening, the future may be such that non-prosecution would be worse, perhaps much worse, than prosecution. But the opposite might be true as well. We cannot be confident now.

I appreciate Goldsmith's thoughtful response, and am flattered he devotes more space to my piece than any of the others addressed. But I remain unconvinced that the risks of prosecution outweigh the benefits, or even that this is a close question.

Goldsmith is right that Trump could potentially get away with his crimes and be emboldened to further wrongdoing, even if he gets prosecuted (e.g.—he might be acquitted). But if he's not prosecuted at all, that possibility becomes a virtual certainty.

I do not, in fact, believe conviction is certain. But I do think there is a high likelihood of it, given the strength and seriousness of the charges against Trump. I discussed some of the reasons for that legal assessment here and here. I see little chance that a conviction would be reversed, given that the prosecution's position on most relevant legal issues is backed by longstanding Supreme Court precedent, and the Court has a strong presumption (recently reaffirmed) against overturning statutory precedent.

The risk of jury nullification is harder to gauge. But I think it, too, is relatively modest, given that strong partisans are likely to be removed for cause from the jury pool and jurors generally do a better job of controlling bias and evaluating issues fairly than voters (admitted a low standard of comparison). Moreover, the case will probably be tried in Washington, DC, where the jury pool is unlikely to include many hard-core Trump supporters.

If the chance of getting a conviction were very low or nonexistent, that would be a good reason not to prosecute. But that's pretty obviously not the situation here.

Goldsmith suggests future politicians might not be emboldened to repeat Trump's experiment, if he escapes prosecution, because of the "the financial and reputational costs Trump has suffered." It seems to me any such costs are greatly outweighed by the ways in which his Big Lie has enabled Trump to remain the lead contender for the GOP nomination, and avoid the kind of political repudiation usually suffered by presidents who lose their reelection bids.

I'm also skeptical the prosecution will somehow catapult Trump to victory in the 2024 election. It's possible the various indictments helped in him the GOP primary. But his lead over his rivals there is so large (consistently at 20-30 points or more over the last several months) that any marginal boost from this indictment is unlikely to be decisive. By contrast, survey data consistently show that indictments and conviction are likely to harm him with general election voters. If the election is close, even a small shift against Trump could be significant.

I'm not convinced that electoral calculations should play any significant role in decisions to indict and prosecute Trump. Ultimately, they should be guided by the severity of the crime, and considerations of retribution and deterrence. But for those who disagree, the available evidence suggests prosecution is more likely to harm Trump's electoral prospects than help him.

Finally, I agree we should consider "all plausible futures and counterfactuals." But there should be a heavy presumption against giving a president guaranteed impunity for the heinous crime of trying to use force and fraud to stay in power after losing an election. The scenarios and risks posited by Goldsmith are nowhere near sufficient to overcome that presumption. Indeed, they are much less grave than those on the other side of the ledger.

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Monday Open Thread Tue, 15 Aug 2023 00:30:51 +0000 The post Monday Open Thread appeared first on

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Fun, Silly Anti-Tax Ballad 'Rich Men North of Richmond' Goes Viral for Some Online Reasons Mon, 14 Aug 2023 20:55:31 +0000 Oliver Anthony performs 'Rich Men North of Richmond' at his Virginia home | Screenshot via Radiowv/Youtube

The internet (or at least the most "online" right-wing corners of it) is abuzz about the hit new song "Rich Men North of Richmond" from heretofore unknown country/folk singer Oliver Anthony.

Released late last week, the song features a solo Anthony on his guitar as he belts out, with great sorrow and personal hurt, lyrics complaining about the falling value of the dollar, the heavy burden of taxation, welfare recipients' purchase of junk food, and the sex trafficking shenanigans of Jeffrey Epstein.

These ills and many others can be blamed, as the title suggests, on "those rich men north of Richmond" and their totalitarian aspirations.

Lord knows they all just wanna have total control

Wanna know what you think, wanna know what you do

And they don't think you know, but I know that you do

Anti-elitism is not the most novel sentiment for a folky country song.

Still, some genuinely funny lines ("I wish politicians would look out for miners, and not just minors on an island somewhere," and "if you're 5-foot-3 and you're 300 pounds, taxes ought not to pay for your bags of fudge rounds") made funnier still by Anthony's incongruously soulful performance add life and originality to the song's generic populism.

Sure, one might quibble with the idea that food stamps are primarily responsible for driving up taxes and inflation, even if they are spent on fudge rounds. But the song's not meant to be a white paper. If you don't take it too seriously, you can have a fun and light-hearted time jamming out to the surprise viral hit.

Regrettably, people have begun to take the song much too seriously indeed. Rolling Stone notes that the song has been a hit with much of the online right, which has treated the song as this generation's ballad for the forgotten man.

Conservative personality Matt Walsh praised it for supposedly injecting some flesh-and-blood beauty into this sterile world. "The main reason this song resonates with so many people isn't political. It's because the song is raw and authentic. We are suffocated by artificiality," he wrote on X, formerly Twitter.

Over at The Federalist, Samuel Mangold-Lenett describes the song as "a haunting, bittersweet lamentation for an America that existed not too long ago but may never exist again" and one that "depicts a deep yearning to return to a version of America in which people were not plagued by existential economic and cultural woes every moment of every day."

The love fest is not an exclusively right-wing affair either. Sen. Chris Murphy (D–Conn.) sees within the lyrics a "path to realignment." Now that rural voters' hearts have been laid bare by the song, they can be won back over to progressive politics.

Perhaps this reaction is what one might expect for a song with lyrics that are themselves a little "too online." Nevertheless, people need to get a grip.

Contra Walsh, the right-wing meme politics running through the lyrics is exactly why the song resonates with people. If the song were instead an authentic recounting of getting drunk or being unemployed, the track probably would have gotten about as much attention as Anthony's earlier releases.

Sad country songs speaking to poverty and social anomie didn't start with food stamps and "Epstein didn't kill himself" memes. Something tells me that the people who kept coal country folk songs like "Which Side Are You On?" alive had some economic and cultural anxieties as well. And the fact that Anthony has the musical equipment and technology necessary to sound good and reach a mass audience from his backyard suggests the times we live in aren't so lean after all.

And while it gives me no pleasure to burst the bubble on Murphy's working-class realignment, not every song sung by a sad guy with a guitar is a window into the soul of blue-collar America. The Epstein lyrics probably should have made that clear.

Still, just because Matt Walsh and Chris Murphy like the "Rich Men North of Richmond" doesn't mean you shouldn't. Like other pieces of right-wing musical media (think MAGA rap), it's catchy and fun. It's even more fun when you don't take it that seriously.

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Why Stripping Fox's Broadcast License Is a Terrible Idea Mon, 14 Aug 2023 20:41:30 +0000 Protester wields sign outside of Fox News headquarters | Erik McGregor/Sipa USA/Newscom

In this week's The Reason Roundtable, editors Matt Welch, Katherine Mangu-Ward, Nick Gillespie, and Peter Suderman are all back in action, and they tear into recent arguments by the Federal Communications Commission in favor of revoking Fox News' broadcast license. The editors also ponder the appointment of a special counsel in the ongoing Hunter Biden probe.

1:06: Special counsel appointed to investigate Hunter Biden

16:00: Misguided threats to yank Fox News' broadcast license

30:54: Weekly Listener Question

53:47: Age verification laws for online porn

Mentioned in this podcast:

"Hunter Biden and Donald Trump Should Both Have Jury Trials," by Clark Neily

"The Legally Authorized Charges Against Donald Trump and Hunter Biden Don't Tell Us What Justice Requires," by Jacob Sullum

"How Joe Biden Went from Middle-Class Joe to a Millionaire," by Caroline Hallemann

"Hunter Biden Shouldn't Go to Prison for Violating an Arbitrary Gun Law," by Jacob Sullum

"What the President Gets Wrong About Broadcast TV," by Jessica Rosenworcel

"How Deregulation Gave Us FM Radio, HBO, and the iPhone," by Nick Gillespie and Thomas W. Hazlett

"Celebrating the End of the Fairness Doctrine," by Nick Gillespie

"FCC Chair Preemptively Rubbishes Trump's Dumb Tweet About Challenging Media Licenses," by Matt Welch

"Child-proofing the World," by Nick Gillespie

"The New Campaign for a Sex-Free Internet," by Elizabeth Nolan Brown

"The EARN IT Act Is the New FOSTA," by Elizabeth Nolan Brown

"Small Porn Producers Will Be Hurt Most by New Age Verification Laws," by Jessica Stoya

"Childproofing the Internet," by Elizabeth Nolan Brown

"Social Media Age Requirements Are Anti-Free Speech," by Jeff Kosseff

"Ranked Choice Voting Worked in Alaska. Sarah Palin Came to CPAC To Complain About It." by Joe Lancaster

"Can ranked-choice voting save American democracy? We ask an expert," by Fredreka Schouten

"Reasons To Like Ranked‐Choice Voting," by Walter Olson

Send your questions to [email protected]. Be sure to include your social media handle and the correct pronunciation of your name.

Today's sponsor:

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Audio production by Ian Keyser; assistant production by Hunt Beaty.

Music: "Angeline," by The Brothers Steve

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Cops Invented a Reason To Cite Man Who Flipped Them Off Mon, 14 Aug 2023 19:27:51 +0000 Cop writing ticket against a red background | Illustration: Lex Villena; Photographerlondon

A Delaware man was ticketed after he flipped off local police—and newly released body camera footage appears to show that officers knew the citation was unlawful but decided to punish him anyway.

In March 2022, Jonathan Guessford, a 54-year-old resident of Smyrna, Delaware, was confronted by police as he stood on the side of a road, holding a sign that read "radar ahead," a warning to drivers about a police speed trap.

Two Delaware State Police officers, Stephen Douglas and Nicholas Gallo, seized Guessford's sign and ripped it up, according to body camera footage. As Guessford drove away, he flipped off the pair who pursued him, the officers even reaching speeds of up to 100 mph. After stopping Guessford and being joined by a third officer, Raiford Box, body camera footage shows the officers planning how to justify punishing Guessford.

"We can lock him up for disorderly conduct," Box tells the officers over a phone call captured by the body camera footage. "It might not go anywhere, but we can definitely lock him up for disorderly conduct."

"He stuck his middle finger out of the car and I'm like 'game on.'" Douglas says after the officers have exited the car, having pulled Guessford over.

"After a while, he 'll do something stupid," Box added later. "We can lock him up, take his kid, put his dog in the impound…for now it is what it is,"

Eventually, Guessford was cited for breaking a law regulating hand signals for bicycles and other non-motorized vehicles. However, body camera footage from after the incident shows that Box knew the citation wasn't lawful. In a phone call with another officer, Christopher Popp, Box explained that officers cited Guessford for improper hand signals.

"Yeah, you can't do that. That'll get dropped," Popp says. "I told him that's gonna get thrown out," Box replies, adding, "Eventually, he's going to do something really stupid and then we are going to be able to really lock him up."

"We need to look at something more that applies, like maybe, something stupid, like parked in the roadway, something like that that will fly," says Popp. "Unfortunately, I mean, we can't pull people over, we can't write them tickets for telling us to fuck off or giving us the middle finger, stuff like that. You know, that is their right to do so."

While the citation against Guessford was later dropped, he filed a lawsuit in February, alleging that police violated his First Amendment rights.

The officer's "motive for the traffic stop and issuance of a traffic ticket was to punish Plaintiff Guessford for exercising rights secured under the constitution," the suit reads. "The adverse actions taken against [Guessford]—stopping his motor vehicle without reasonable suspicion or probable cause—would substantially interfere with the exercise of First Amendment freedoms."

Since the incident, one unnamed officer has been disciplined, according to a Delaware State Police spokesperson.

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Cornell Free Speech Alliance Launches Mon, 14 Aug 2023 18:33:50 +0000 An encouraging sign for the future of American higher education has been the emergence of local faculty groups organizing themselves to advance free speech principles at their particular institution. The latest is the Cornell Free Speech Alliance at Cornell University.

Of particular interest is their new report on policy recommendations for universities. The key points can be found here. The full report is here.

Although motivated by the specific situation at Cornell, the policy recommendations are not specific to that university. The report makes for useful reading and lays out a valuable agenda for faculty across the country.

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A Self-Described Anarcho-Capitalist Won a Plurality in Argentina's Presidential Primary Mon, 14 Aug 2023 15:30:01 +0000 Javier Milei standing with his arms raised in the air in front of a purple background. | Anibal Greco/Newscom

Could a self-described anarcho-capitalist become president of Argentina?

With 97 percent of votes counted, Javier Milei and his La Libertad Avanza (Liberty Moves Forward) coalition received about 32 percent of the total vote in the national primary election on Sunday. The main conservative coalition (Together for Change) had 29.7 percent, and the Peronist coalition Unity for the Homeland (led by Minister of Economy Sergio Massa) had 28.7 percent. Since voting is mandatory in Argentina, this primary effectively served as a first ballot, though the first round of the general election is on October 22.

Pollsters expected Milei to get 20 percent or less of the vote, so his success comes as a shock to many people. The political establishment and the markets were expecting a relatively close election between Together for Change and Unity for the Homeland. Instead, a man who calls himself an anarcho-capitalist is in the lead.

A relatively unknown economist until about five years ago, Milei rose to fame in Argentina as a TV commentator criticizing then-President Mauricio Macri for not being pro-market. His hot-tempered style and profanity made him popular among young people, and he quickly became the country's preeminent libertarian voice, calling for the elimination of the central bank and quoting intellectuals like Ludwig von Mises and Friedrich Hayek on prime time.

When Macri failed to stabilize Argentina's economy and lost his reelection bid in 2019, Milei jumped into politics in a controversial alliance with national conservatives that he has maintained until today. When he ran for Congress in 2021, he received 17 percent of the vote in the city of Buenos Aires, enough to win a spot in the Argentine Chamber of Deputies.

During the 2023 presidential campaign, Milei's main proposal has been to eradicate inflation by dollarizing the economy—that is, by treating the U.S. dollar as the national currency. He also favors deregulating industries, privatizing state-owned companies, and bringing an end to budget deficits.

Milei's social agenda, in turn, mixes libertarian and conservative elements. Unlike any other candidate, he advocates for private gun ownership to counter crime, but he opposes abortion. It is gay marriage, though, where the ideological complexity of his candidacy becomes clear: While he has said government should not regulate any marriages at all, his Catholic running mate has publicly opposed it. Both abortion and same-sex marriage are currently legal in Argentina, though.

Political commentators expected Milei's constant insults against other politicians to hurt him. But blaming his rivals for Argentina's problems seems to have been a successful strategy. It's unclear whether his ideas or his temper did more to earn him 30 percent of the vote, but his support is still substantial.

Milei is by no means guaranteed a victory in October's general election. He will come under attack from all sides: He has taken some unpopular stands, such as supporting a free market in body organs, and he will be accused of not being prepared for the presidency. Because of his alliances, he will also be accused of not being a true libertarian, and he is already called a "fascist" by his opponents. But his chances are certainly well above zero. One thing is certain: As his campaign song goes, "la casta tiene miedo." The system is afraid.

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Second Circuit Cites Scholarship in Both Majority and Dissenting Opinions of Farhane v. United States Mon, 14 Aug 2023 14:48:43 +0000 The U.S. Court of Appeals for the Second Circuit just issued Farhane v. United States, an important case in which the appellant argued that he received ineffective assistance of counsel because his attorney did not warn him of the risks of denaturalization and potential subsequent deportation arising from his guilty plea. The Second Circuit affirmed SDNY's denial of the appellant's habeas petition to vacate his guilty plea, conviction, and sentence.

Both Judge Walker's majority opinion and Judge Carney's dissent cite to my denaturalization scholarship with Cassandra Burke Robertson. The two opinions both cite to our article "(Un)Civil Denaturalization" (NYU Law Review), and the dissent additionally cites to our article "Inalienable Citizenship" (North Carolina Law Review).

We are staying tuned as to whether the Supreme Court ends up granting cert.

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Owner of Kansas Newspaper Dies Amid 'Shock and Grief' After Police Raid Mon, 14 Aug 2023 13:55:10 +0000 Untitled design(3) | Background photo by <a href="">Utsav Srestha</a> on <a href="">Unsplash</a>; logo: Marion County Record

Why did police raid the offices of a small-town Kansas newspaper? The Friday raid on the offices of the Marion County Record certainly looks like a major incursion on freedom of the press—with disastrous results for not just the civil liberties but also the physical well-being of newspaper staff.

The paper attributes the Saturday death of 98-year-old co-owner Joan Meyer to stress from the raids on her home and the paper's office. "Stressed beyond her limits and overwhelmed by hours of shock and grief after illegal police raids…Meyer, otherwise in good health for her age, collapsed Saturday afternoon and died at home," the paper reports. It adds that she "had not been able to eat" or sleep on Friday after the raids.

The root of the raids appears to involve local entrepreneur Kari Newell, who reportedly runs a restaurant out of a hotel owned by the brother of the county attorney.

A social media source provided both the Record and Marion Vice Mayor Ruth Herbel with information about an alleged drunk driving incident involving Newell. The source said the information had been obtained from a public website. Unable to verify this and suspecting the leak had occurred as part of a legal fight between Newell and her estranged husband, the paper decided that it shouldn't publish the information. ("We thought we were being set up," Record co-owner Eric Meyer told the Kansas Reflector in the wake of the raid.)

But "without naming Newell," Meyer eventually "notified [Marion County] Sheriff Jeff Soyez and [Marion Police Chief Gideon] Cody that the newspaper had received the information and that the source who provided it alleged that law enforcement officers knew Newell did not have a valid driver's license and ignored her violation of the law," according to the Record.

Police alerted Newell, who at an August 7 council meeting publicly accused the paper of illegally obtaining information about her and illegally disseminating it to the vice mayor, who allegedly shared the information with a city administrator considering Newell's application for a catering liquor license.

"After the council meeting, Newell acknowledged" that "the state suspended her license because of a drunken-driving conviction in 2008 and a series of other driving convictions," reports the Record, which responded to Newell's public accusations by publishing a story last Thursday about the situation.

On Friday, city and county police raided the Record's office, "forcing staff members to stay outside the office for hours during a heat advisory" and disallowing them from making any phone calls, the paper reported. They seized the newspaper's file server as well as "personal cell phones and computers" and "other equipment unrelated to the scope of their search."

Herbel's home was also raided, as were the homes of Joan and Eric Meyer.

According to the paper, the search warrants "alleged there was probable cause to believe that identity theft and unlawful computer acts had been committed involving Marion business owner Kari Newell." But when a Record reporter requested a copy of the probable cause affidavit necessary for such a warrant, the district court reportedly "issued a signed statement saying no affidavit was on file."

"Based on the reporting so far, the police raid of the Marion County Record on Friday appears to have violated federal law, the First Amendment, and basic human decency. Everyone involved should be ashamed of themselves," Seth Stern of the Freedom of the Press Foundation declared in a statement.

It's unclear exactly what police were looking for in the raid on the Record office or its owners' homes. But if the situation laid out by the Record is accurate, its staff did nothing wrong and should not be being treated like criminals. They absolutely have a right to investigate information leaked to them, no matter where that information originally came from. And they certainly have a right to question or notify police about what they were told.

Nor is a raid on the newspaper office justified if police were investigating criminal wrongdoing by a third party. If the aim was to obtain the identity of the source who provided the information about Newell, police could have questioned the vice mayor, subpoenaed records from the social media company, or subpoenaed records from the paper—all paths that don't involve literally raiding a press outlet, seizing its servers, and taking reporters' computers and phones.

At best, that would be an illegal overreaction to allegations of criminal wrongdoing by a third party. But the fact that the Record's leadership came to police with accusations about law enforcement corruption not long before the raid suggests something worse may have been afoot: retaliation, intimidation, or an attempted cover-up.

Eric Meyer told the Reflector the message was clear: "Mind your own business or we're going to step on you."

Meyer "believes the newspaper's aggressive coverage of local politics and issues played a role," reports the Associated Press. "He said the newspaper was examining Cody's past work with the Kansas City, Missouri, police as well."

The raid has received national attention—and further reason to believe police were targeting the paper or its staff.

"Cody, the police chief, defended the raid on Sunday, saying in an email to The Associated Press that while federal law usually requires a subpoena—not just a search warrant—to raid a newsroom, there is an exception 'when there is reason to believe the journalist is taking part in the underlying wrongdoing,'" the AP reports. "Cody did not give details about what that alleged wrongdoing entailed."


Libertarianism, New Zealand–style. In "New Zealand, many conservatives are beginning to embrace an old ideology: libertarianism," writes Washington Post columnist Henry Olsen:

This surprising trend is thanks to David Seymour, leader of New Zealand's classically liberal ACT Party. He has rapidly transformed his faction from a nearly extinct institution to a vibrant, growing movement, setting an example for conservatives worldwide.

In 2014, Seymour became the party's only member of Parliament. And in the country's 2017 election, the party got just 1 percent of the vote. But things have been changing:

The party received its highest share of the vote ever in the 2020 election, winning 10 seats in the 120-seat Parliament. More recent polls show ACT could win 15 seats or more in the upcoming October election. With the traditional center-right party, the National Party, tipped to win 46 seats, ACT could become a crucial governing partner. That's a stunning reversal of fortune in just a few years.

This success is fueled by Seymour's insistence on applying classically liberal principles to issues beyond just taxes, regulation and spending. He can do that because, as he told me, "there is a deep underlying philosophical base to what we're saying, so it's all coherent." That theme—stick to your principles and calmly explain their application to whatever issue is at hand—repeatedly came up in our discussion.

That said, not all of the wider issues embraced by the New Zealand libertarians sound like American libertarianism. For instance, "ACT calls for trying 17-year-old violent offenders as adults and a host of other 'law and order' policies," writes Olsen.


Barbie economics. "The average working woman in 2023 earns enough money to buy a Barbie doll every 33 minutes. In 1959, it took nearly two hours," writes Reason's Eric Boehm, citing figures from University of Central Arkansas economist Jeremy Horpedahl.

Call it Barbenomics. Call it the Barbie Price Index. Whatever you call it, it shows good news about American women's economic progress:

"Another way of thinking about it: with the same amount of work, a working mother today could buy her daughter 3-4 times as many Barbies as her counterpart in 1959," Horpedahl notes at Economists Writing Every Day, an economics blog.

On one hand, the decline in the Barbie Price Index shows how much women's wages have grown in the past six and a half decades. While women are still paid less than men, on average, the gap has closed considerably—and effectively vanishes once other lifestyle factors are taken into account.

But it also demonstrates something about the relative level of prosperity that today's Barbie-loving kids get to enjoy—and about the amount of work their parents have to do to deliver it.

It has become fashionable on the populist right to complain about stagnating male wages and a supposedly declining standard of living. Oren Cass, executive director of the right-wing think tank American Compass, published a "Cost-of-Thriving Index" earlier this year, claiming that the basic necessities for a middle-class lifestyle were no longer within reach for households relying on a single breadwinner. It would take 62 weeks of earnings—more than a full year—to pay for a year's worth of groceries, a home, health insurance for a family, a car, and to save for a child's college education, he argues. That's up from just 40 weeks' worth of earnings in 1985.

The study has some serious flaws, as Horpedahl and Scott Winship, a senior fellow at the American Enterprise Institute, have detailed at length. Chief among those problems is that Cass' analysis does not take into account taxes and various family-oriented subsidies delivered via the tax code. With those included, the so-called "cost of thriving" for families with a single male breadwinner has actually fallen since 1985.

But Cass' study also ignores the crucial role that women now play in the work force and in earning income to support their families. Including them in the overall assessment means that the cost of thriving has fallen by about 7 weeks since 1985, in part because women have seen bigger gains in earnings during recent decades.

More here.


• "A Georgia prosecutor appears on the verge of bringing criminal charges in her investigation into former President Donald Trump's efforts to overturn the results of the 2020 presidential election in that state," reports Politico. "Two witnesses confirmed Saturday that they will appear before a grand jury in Fulton County, Ga., early next week—the clearest sign yet that Fani Willis, the district attorney there, soon plans to ask the grand jury to approve criminal indictments against Trump or his allies."

• U.S. Attorney General Merrick Garland has appointed a special counsel to oversee investigations into President Joe Biden's son Hunter Biden.

Theoretical physicist Michio Kaku says fears about artificial intelligence are overblown. "It takes snippets of what's on the web created by a human, splices them together and passes it off as if it created these things. And people are saying, 'Oh my God, it's a human, it's humanlike,'" commented Kaku in a Sunday interview with CNN's Fareed Zakaria. Tools like ChatGPT are "glorified tape recorders," he added.

• Why politics should stay out of banking.

The New York Times looks at the growing number of U.S. prisoners with dementia.

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Texas Revenge Porn Statute Doesn't Apply to Evidence Introduced in Court Mon, 14 Aug 2023 13:03:59 +0000 The Texas nonconsensual pornography statute (chapter 98B of the Texas Civil Practice & Remedies Code) provides:

A defendant is liable … to a person depicted in intimate visual material for damages arising from the disclosure of the material if:

(1) the defendant discloses the intimate visual material without the effective consent of the depicted person and with the intent to harm that person;

(2) at the time of the disclosure, the defendant knows or has reason to believe that the intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;

(3) the disclosure of the intimate visual material causes harm to the depicted person; and

(4) the disclosure of the intimate visual material reveals the identity of the depicted person in any manner ….

{"Intimate visual material" means visual material that depicts a person: (A) with the person's intimate parts exposed; or (B) engaged in sexual conduct.}

{This chapter shall be liberally construed and applied to promote its underlying purpose to protect persons from, and provide adequate remedies to victims of, the disclosure or promotion of intimate visual material.}

The statute provides for damages liability and an injunction, and it has no exception for disclosure of such material in court; but the Texas Court of Appeals (San Antonio) held Wednesday (in Doe v. Cruz, written by Justice Lori I. Valenzuela, joined by Justices Luz Elena D. Chapa and Beth Watkins) that the general Texas judicial-proceedings privilege applies to the statute. (The logic of the opinion suggests that similar privilege rules would apply to similar conduct, such as disclosing the material to the police and the like.) From the opinion:

Here, the only disclosure of allegedly "intimate visual material" to which Cruz has directed us is Doe's assertion in his amended petition that unredacted photographs "will be made available to the court and jury as this case proceeds to jury trial." Thus, the only anticipated disclosures are disclosures to be made in this legal proceeding to the court and jury. If the judicial-proceedings privilege is available, Doe has established its applicability.

However, the question remains whether the privilege applies to statutory claims under Chapter 98B. Doe assumes that it does, and Cruz has not specifically contested its applicability to his Chapter 98B claim. We hold that the judicial-proceedings privilege applies to Cruz's Chapter 98B claim because (1) his claim is a tort seeking damages for reputational harm, (2) applying the privilege furthers the policy behind the privilege, and (3) the Supreme Court has applied the related attorney-immunity defense to a statutory claim within a statutory framework that, like Chapter 98B, does not expressly, or by necessary implication, abrogate the privilege.

First, "[t]he absolute [judicial-proceedings] privilege bars claims that are based on communications that are related to a judicial proceeding in which the claimant seeks damages for reputational harm." The privilege has been held to apply in libel and slander suits and to "business-disparagement and tortious-interference claims, when those claims are based on an allegedly defamatory communication in a judicial proceeding." Chapter 98B is contained within Title 4 of the Texas Civil Practice and Remedies Code, entitled "Liability in Tort." … "Although [the judicial-proceedings privilege is] commonly applied in defamation cases, the privilege prohibits any tort litigation based on the content of the communication at issue." … Allowing the privilege for the Chapter 98B claim alleged here comports with the general allowance for the privilege against tort claims asserting reputational harm. Moreover, Chapter 98B allows for recovery of "actual damages," which can include damages for reputational harm. Cruz, through his "revenge porn" claim, seeks damages for harm to his reputation and legal practice, including for monetary loss caused by the loss of clients.

Second, the judicial-proceedings privilege "furthers public policy by promoting a 'complete and unbridled development of evidence in the settlement of disputes without fear of reprisals.' " Depending on the circumstances, that policy is furthered if the privilege applies to Chapter 98B claims. It is not inconceivable that a photograph depicting "intimate visual material" may be relevant to a sexual assault claim and that a redacted photograph may not fully resolve disputed facts. {We caution, however, that improper use of sensitive material in litigation may be grounds for discipline, even if the judicial-proceedings privilege applies.}

Finally, our determination that the privilege can apply to Chapter 98B claims finds support, by analogy, from the Supreme Court's decision in Taylor v. Tolbert (Tex. 2022). In that case, an attorney told opposing counsel she intended to use a nude photograph of opposing counsel's client that was inadvertently shared "as a poster-size demonstrative in [a] jury trial." Opposing counsel's client sued the attorney under the Texas wiretap statute, which "grants a private right of action for '[a] person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of' certain statutes …." The attorney moved for summary judgment, arguing she was immune because all claims stemmed from her role as an attorney. The Supreme Court agreed, and determined the attorney's conduct was encompassed by the attorney-immunity defense and the Texas wiretap statute did not abrogate the defense. The Court stated:

[W]hen conduct is prohibited by statute, the attorney-immunity defense is neither categorically inapplicable nor automatically available, even if the defense might otherwise cover the conduct at issue. In such cases, whether an attorney may claim the privilege depends on the particular statute in question.

Attorney-immunity attached "because the Texas wiretap statute does not expressly, or by necessary implication, abrogate the immunity defense." Likewise, here, we find nothing in Chapter 98B that expressly, or by necessary implication, abrogates the judicial-proceedings privilege. {The attorney-immunity defense "is not merely the lawyer's version of the judicial-proceedings privilege, although there is considerable overlap." It is a "comprehensive affirmative defense protecting attorneys from liability to non-clients," and "generally applies when attorneys act in the uniquely lawyerly capacity of one who possesses the office, professional training, skill, and authority of an attorney."}

Here are the factual allegations, which also led to a defamation counterclaim by Cruz that the court did allow to go forward:

On August 30, 2021, Doe filed an original petition against Cruz, whose law firm represents United Independent School District ("UISD") in Laredo. The petition's "Case Summary" states: "Defendant Juan J. Cruz is a homosexual pedophile that assaulted John Doe, a minor who was his employee and a student at one of the school districts where he serves as general counsel." The petition continues with a "Notice to School Districts Employing Juan J. Cruz," which states:

Defendant Juan J. Cruz holds himself out [as] a school law expert dealing with minor children. Any school district that has Juan J. Cruz employed as general counsel is hereby on notice of his deviant proclivity to have homosexual intercourse and sexually assault minor children and should take appropriate actions to protect their students from Defendant Juan J. Cruz.

Doe alleged Cruz began "homosexual advances," including "licking his lips while staring provocatively" at Doe and giving "offensive touch[es] including massages" when Doe was sixteen years old. Doe further alleged Cruz "lured" Doe to work for him. According to Doe's original petition:

Cruz would furnish alcohol and Xanax to minor John Doe to make it easier for Defendant Cruz to sexually assault John Doe. Defendant Cruz would require John Doe to stay at his apartment in San Antonio and at his home … in Laredo, Texas so he could conveniently sexually assault him ….

Doe stated a cause of action, under the heading "Defendant Juan J. Cruz's Homosexual Sexual Assault and Battery of a Minor Child," in which he alleged as follows:

John Doe was 16 years old when Defendant Cruz began homosexually assaulting him. At the time the cause of action accrued, the age of consent was seventeen (17) in the State of Texas. Defendant Juan J. Cruz used his position as a school attorney and the trust he gained from John Doe to commit acts of sexual assault and sexual battery against John Doe….

John Doe's status as a minor, coupled with Defendant Juan J. Cruz's position as his boss, lawyer and authority figure, allowed Defendant Cruz to exercise control and influence over John Doe. Using the power, authority and trust of his position, Defendant Juan J. Cruz homosexually assaulted and molested John Doe on countless occasions, for money….

Doe also asserted causes of action for breach of fiduciary duty and intentional infliction of emotional distress…. Doe's attorney emailed a copy of Doe's original petition to the superintendent and board members of UISD two days after the lawsuit was filed. The subject line of the email states, "Suit filed against UISD School Attorney Juan J. Cruz for Sexual Assault," and the body of the email states:

Good afternoon Superintendent Gonzalez and UISD Board,

A file-stamped copy of Plaintiff's Original Petition filed Monday against UISD school attorney Juan J. Cruz is attached for your review. The facts in the petition are very detailed, with dates and places. There is solid evidence including texts, photos and other conclusive proof substantiating the claims made therein.

This matter of public concern is being forwarded to you because it is understood that Mr. Cruz frequently visits UISD's schools where children are present, in order that you can take appropriate measures to safeguard the children under your care….

Cruz filed an original answer, and thereafter Doe filed an amended petition. On the first page of the amended petition is a redacted photograph of Cruz in a swimming pool. A black square covers Cruz's body, except for his head and shoulders. The redacted photograph is captioned: "Powerful Evidence of Defendant Cruz'[s] Misconduct." …

Cruz filed an amended answer and counterclaims [for, among other things, violation of the revenge porn statute and for defamation -EV]. Cruz "categorically denie[d] that he has ever had forcible sexual contact with any person at any time," and he "categorically denie[d] that he has ever had sexual contact of any kind with a minor." Cruz alleged Doe's counsel held personal animosity toward Cruz and asserted that the aim of Doe's lawsuit was harm to Cruz's reputation and legal practice….

Cruz attached an affidavit [to his motion to dismiss], in which he stated:

I know the true identity of plaintiff "John Doe" in this litigation. He is currently 22 years of age. I met him in November, 2018 when he was 19 years old at the Laredo Country Club gym. I did not know "John Doe" when he was 16 years old, as alleged. I had a continuous, consensual, adult relationship with "John Doe" from August 2019 to December 2019…. I never sexually assaulted "John Doe."

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Court Refuses to Block Indiana Law That Bans "Instruction … on Human Sexuality" to Public K-to-3rd Students Mon, 14 Aug 2023 12:04:08 +0000 From Smiley v. Jenner, decided by Judge James Patrick Hanlon (S.D. Ind.) on July 28, but just posted on Westlaw:

A new Indiana law prohibits public schools and their employees from providing instruction to students in prekindergarten through grade 3 on human sexuality. Kayla Smiley—a teacher who works for the Indianapolis Public Schools—alleges that the new law violates the United States Constitution because it (1) infringes on her right to free speech and (2) is so vague that she does not know what speech and actions may violate the law. She therefore asks the Court to enter a preliminary injunction preventing enforcement of the new law….

Under HEA 1608, "[a] school, an employee or staff member of a school, or a third party vendor used by a school to provide instruction may not provide any instruction to a student in prekindergarten through grade 3 on human sexuality." But "[n]othing" in HEA 1608 "may be construed to prevent a school employee or a school staff member from responding to a question from a student regarding" human sexuality.

Kayla Smiley is a teacher who will be subject to HEA 1608 when she begins teaching an Indianapolis Public School class of first through third graders on July 31, 2023. She brought this action against the Indiana Secretary of Education, Dr. Katie Jenner, as head of the department overseeing teacher licensing. Ms. Smiley is concerned that she may unwittingly violate HEA 1608, thereby jeopardizing her teaching license, because she has "no idea what is encompassed within the term 'human sexuality,'" and does "not understand what is meant by the statute's term 'instruction.'" For example, she does not know if having books in her classroom library that "touch on LGBTQ themes" and "discuss and represent different family relationships and structures" violates HEA 1608. She contends that she would also "have to censor" herself by (1) not carrying her water bottle with its "message about tolerance of persons who are LGBTQ," (2) "remov[ing] the LGBTQ-supportive bumper stickers" that will be on her car, and (3) refraining from talking with students about "using the word 'gay' pejoratively.'"

The court rejected the request for a preliminary injunction, concluding that Smiley was unlikely to succeed on the merits:

"If a public employee speaks 'pursuant to [her] official duties,'" that speech is, for constitutional purposes, "the government's own speech." In that situation, the First Amendment does "not shield the individual from an employer's control and discipline." …

[Seventh Circuit precedents] show that speech within the scope of a teacher's job duties isn't limited to speech that presents "official curriculum." … "[T]he Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials."

This principle applies with equal force to speech outside of the classroom. As the Supreme Court has explained, the "'critical question … is whether the speech at issue is itself ordinarily within the scope of an employee's duties.'" That's especially important here, in the elementary-education context, where much of what an elementary teacher says to students during a typical school day is spontaneous …, in response to questions …, or otherwise outside of a formal lesson plan. Instead of being outside an elementary teacher's official duties, those things are central to the job. And the students are not any less of a captive audience when having an informal conversation with their teacher in a hallway or choosing which of the teacher's books to look at during unstructured time.

Indeed, Ms. Smiley wants to use classroom-library books, water bottle messages, and car bumper stickers to "create teachable moments" for her students. She "carries her water bottle to instruct those who observe it on tolerance of persons who are LGBTQ." She puts bumper stickers on her car to similarly "express … tolerance." And she has chosen the books in her library to ensure that students have "a whole, full-circle world view where they could be open-minded of other cultures" and "learn about the history of some … hot topic" issues. In short, according to Ms. Smiley, "everything sparks conversation" and "it is always used as a teachable moment." Such interactions, even when spontaneous and not part of official curriculum, are within the scope of Ms. Smiley's duties and responsibilities as an elementary school teacher and therefore not protected by the First Amendment. Garcetti v. Ceballos (2006) ("Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.")….

The Supreme Court's Kennedy opinion, which Ms. Smiley relies on, does not support Ms. Smiley's position. There, the Court held that a high school football coach spoke as a private citizen when he prayed on the field after a few games. That was because the prayers were not in the scope of his coaching duties, were at a time when coaches were "free to engage in all manner of private speech," and were "when students were engaged in other activities." As the Court observed, "what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy's speech and the circumstances surrounding it point to the conclusion that he did not."

Here, by contrast, most if not all of the expression that Ms. Smiley fears could violate HEA 1608 is aimed at "teachable moment[s]" to impart specific lessons to elementary students. There's therefore no indication that Ms. Smiley would be "stepp[ing] outside" her role as a teacher "to speak as a citizen." On the contrary, the situations that Ms. Smiley describes seem to be squarely within her job as an elementary school teacher. Garcetti ("When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee."). Indeed, Ms. Smiley cites no authority establishing that an elementary school teacher has the right to speak in her capacity as a private citizen when expressing an educational message to her students.

At the least, even if some of the expression that Ms. Smiley is worried about—perhaps the LGBTQ-supportive bumper stickers on her car—is protected by the First Amendment, Ms. Smiley is nonetheless unlikely to be able to show that HEA 1608 is unconstitutional on its face…. "Facial invalidation for technical overbreadth is strong medicine, and is inappropriately employed unless the statute substantially criminalizes or suppresses otherwise protected speech vis-à-vis its plainly legitimate sweep." … In short, Ms. Smiley asks for an injunction that would "throw out too much of the good based on a speculative shot at the bad." "That is not the stuff of overbreadth—as-applied challenges can take it from here." { Because Ms. Smiley brings only a facial challenge, the Court does not address her likelihood of success on any as-applied challenge.}

To be clear, the Court does not suggest that Ms. Smiley forfeited her First Amendment rights when she became a public school teacher…. But here, HEA 1608's prohibition of "instruction … on human sexuality" affects only expression to elementary students—rather than to the public—which the First Amendment does not protect when it's "against the instructions of elected officials." …

[As to vagueness,] "[A] statute is only unconstitutionally vague if it fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a nonarbitrary, nondiscriminatory manner." In short, due process "does not demand perfect clarity and precise guidance."

Because Ms. Smiley has not shown some likelihood of success on her First Amendment claim, her facial vagueness challenge is "limited" and "disfavored." HEA 1608 is therefore unconstitutional on its face only if it "has no discernable core" of understandable meaning and "lacks any ascertainable standard."

Here, "instruction … on human sexuality" is not so vague that it lacks a core of understandable meaning. Those terms are no vaguer than "acquires," "receives," or "transfers," all of which the Seventh Circuit has held to be understandable. And they are certainly more definite than "reasonable," which also "has enough of a core to allow its use in situations where rights to speak are at issue." Like each of those terms, "instruction" and "human sexuality" are terms that people "use and understand in normal life." So Ms. Smiley has not been given "no guidepost" from which to "divine what sort of conduct is prohibited." …

Ms. Smiley worries that her classroom-library books, water bottle messages, car bumper stickers, and passing conversations with students may unwittingly violate HEA 1608. But even if there are questions about whether these actions and expressions come within HEA 1608's scope, they do not undermine or remove HEA 1608's understandable core…. "The enforcement of the Statute will inevitably present many uncertainties at the margins, but the resolution of those 'edge questions' arising from the enforcement of a state law is a principal role of the state's courts." …

Nor does Ms. Smiley argue that she could not bring an as-applied challenge if the Department of Education were to initiate proceedings to suspend or revoke her teaching license…. "When a statute is accompanied by a system that can flesh out details, the due process clause permits those details to be left to that system." … That is the appropriate way to raise constitutional concerns about the periphery of a statute's application. So while "an as-applied challenge to [HEA 1608] may have a different outcome, this challenge to the Statute fails because it is a facial challenge to a statute with a discernable core."

My quick reaction: As I've written before, courts have generally held that teachers have no First Amendment right to choose what and how to teach in public K-12 schools. (Cases tend otherwise as to public colleges and universities, but those decisions stress the special treatment that courts give to higher education.) The government may, if it wants to, give considerable flexibility to teachers. But it can also insist that decisions about teaching be made not by such line public employees but instead by higher-level officials—principals, school boards, legislatures, or others, as each state decides.

This might not extend to all interactions between teachers and students, especially outside class; sometimes teachers, even in lower grades, may be speaking just on their own behalf and not on behalf of the school. But a law that's limited to "instruction" does strike me as constitutional. And the void-for-vagueness doctrine is unlikely to change things; when the government tells its employees what to say as part of their jobs, it may permissibly use rules—e.g., "don't be rude," "be professional," "answer questions well"—that would be too vague for it to impose on the public at large, on pain of criminal or civil liability.

Melinda Rebecca Holmes and James A. Barta represent the state. Smiley has appealed.

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Today in Supreme Court History: August 14, 1935 Mon, 14 Aug 2023 11:00:41 +0000 8/14/1935: President Roosevelt signs into law the Social Security Act of 1935. The Supreme Court upheld the constitutionality of this law in Helvering v. Davis (1937).

President Franklin D. Roosevelt

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The IRS Misplaced Millions of Taxpayer Records. Again. Mon, 14 Aug 2023 11:00:25 +0000 The sign in front of the Internal Revenue Service building in Washington, D.C. | Kkistl01 |

Do you know where your tax records are? It's a serious question in the case of millions of Americans whose records the IRS carelessly misplaced. That's the big reveal in a recent inspector general's report telling us that the federal mugging agency continues to be mindbogglingly incompetent at safeguarding the sensitive financial information it forcibly extracts from us all.

Millions of Records Went Missing

"The IRS was unable to locate any of the FY 2010 microfilm cartridges that should have been sent from the Fresno Tax Processing Center to the Kansas City Tax Processing Center," the U.S. Treasury Inspector General for Tax Administration revealed in an August 8 report on the tax agency's data-handling practices. "As a result of the lack of adequate inventory controls, the IRS cannot account for thousands of microfilm cartridges containing millions of sensitive business and individual tax account records."

That's bad—remarkably bad given the bait the information in those records represents for criminals inclined "to commit tax refund fraud identity theft," as the report goes on to warn. You could omit the "tax refund" part since the details we're required to submit to the IRS could enable scammers to rob us blind in a host of ways that don't matter to the government but are extremely serious to anybody on the receiving end.

As you might expect of a government agency, the incompetence doesn't stop there.

Empty Boxes and No Inventory

"Our review found that required annual inventories of microfilm cartridges maintained at the Austin, Kansas City, and Ogden Tax Processing Centers have not been performed. In fact, management could not provide a time frame of when the last required annual inventory was conducted," the report adds.

That means there could be many more records missing. Might that be thousands of microfilm cartridges containing millions of sensitive tax records? Nobody knows; without an inventory it's all just an intriguing mystery. But there's certainly evidence of other missing tax records.

At the Ogden, Utah, tax processing center, "we observed seven empty boxes with a note stating, 'Sent for Reformat 4-11-13.' Each box holds 24 cartridges meaning as many as 168 cartridges may have been sent for reformatting. IRS personnel in Ogden were unaware of the current location of these cartridges."

The IRS should probably reach out to the folks they sent the microfilm for reprocessing (each microfilm cartridge can hold up to 2,000 images), but there's a hitch. "Because the prior microfilm contractor went out of business abruptly in 2018, it is unclear where these microfilm cartridges are located at this time."

Storage unit? Uncle Bob's garage? A site on the dark web for sale at very reasonable prices? Your guess is as good as that of anybody at the IRS—not that they're in a hurry to find out.

This would be bad enough if the report and the lapses it found stood on their own. We'd know that IRS processing centers serve an important function as one-stop-shopping outlets for identity thieves. But this is just the latest in a long series of revelations that the tax agency is unforgivably sloppy in the handling of Americans' sensitive financial information.

A History of Incompetence and Malice

In 2021, ProPublica published leaked tax information about thousands of wealthy individuals. The disclosures are still under investigation and the subject of lawsuits against the publication and the IRS.

It's not just the wealthy; last year the Government Accountability Office revealed that IRS employees are constantly engaged in "willful unauthorized access of tax data." Some of that tax data poaching is carried out by the likes of Deena Vang Lee, a tax collector who was convicted earlier this year of multiple charges, including five counts of identity theft.

But IRS tax records are also easy pickings for criminals not employed by the federal government, such as the gang that stole taxpayers' information through the tax agency's website in 2015. Originally reported as affecting 100,000 Americans, the IRS later had to up estimates of the number of people at risk to over 300,000 before hiking it again to more than 700,000.

You'd think the agency would learn. But later it carelessly posted the financial information of roughly 120,000 taxpayers to its website for all to see.

By comparison to the earlier incidents, the IRS microfilm fiasco does raise the ante just a tad since it involves millions of tax records. The only saving grace is the possibility that they've been lost to bureaucratic incompetence rather than explicit malice and may someday be found in a dank government facility slowly rotting next to the crate containing the Ark of the Covenant.

Recommended Reforms That Won't Reform

The inspector general's report contains recommendations for reform, specifically that IRS employees should actually conduct required inventories of the tax records in their care and then report discrepancies so that somebody can hunt down missing boxes of microfilm. The report also recommends tracking requests for records, the reasons for the requests, and whether or not they could be fulfilled. Sounds reasonable, right? Even the IRS agrees.

"We are taking action on the report recommendations to complete inventories of the microfilm media stored at the [submission processing centers] and updating procedures to ensure the inventory records are contemporaneously maintained and reviewed annually," Kenneth C. Corbin, commissioner for the Wage and Investment Division, responds in an appendix to the report. But he also blames the slips on the "attrition of experienced staff due to reduced funding" and "the effects of the recent pandemic."

Right. After years of recommending various and sundry means for rendering the IRS less of a disaster, staffers for the Treasury Inspector General for Tax Administration must realize that, whether or not recommended reforms are implemented, the agency remains steadfastly impervious to improvement. Without real consequences, there's no reason for the tax agency's management to rein in its employees, to stop functioning as political enforcers, to figure out why their processes are so opaque to taxpayers, or to exercise even a modicum of care for information with which they're entrusted.

Given the tax agency's history, its recent $80 billion funding boost will just be used to find new and wildly more expensive ways for making Americans' lives miserable.

Not that most intelligent people need more reason to try to stay off tax collectors' radar. But the knowledge that any sensitive information surrendered to the IRS is likely to be lost or otherwise made available for public perusal is a strong argument for shielding hard-earned income and personal financial data from the government's tax goons.

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Caitlin Long on Why Politics Should Stay Out of Banking Mon, 14 Aug 2023 10:00:32 +0000 qa | Photo: Jim Epstein

After 22 years on Wall Street, Caitlin Long got intrigued by bitcoin and the blockchain in 2012. From 2018 through 2020 she served as a member of the Wyoming Blockchain Task Force, which made the Cowboy State the most welcoming for blockchain companies.

Long is the founder and CEO of Custodia Bank, a bitcoin-focused "full reserve" bank proposing to keep 108 percent of customer deposits on hand. The Federal Reserve has denied its application for membership, claiming that "the firm's novel business model and proposed focus on crypto-assets present significant safety and soundness risks." Custodia is currently challenging that decision. Reason's Zach Weissmueller interviewed Long about the ongoing lawsuit and the future of bitcoin in May, at the Bitcoin 2023 conference in Miami.

Q: Why did you start Custodia Bank?

A: The proposal was to be a 100 percent reserve bank that would keep all of our cash at the Fed. Basically, a pure service provider. There's no reason why your bank needs to be a counterparty.

It's just like the law of bailment, which is how a valet parking works or a coat check. When you park your car, you're not turning legal title to your car over to the garage. And if the garage happens to go bankrupt while your car is parked there, you can still get your key and drive your car away. Let's just turn this into a basic money warehouse to the maximum extent possible within the law.

Q: Why were you seeking a master account with the Federal Reserve?

A: We wanted to be able to keep cash directly at the Fed. Like any depository institution, federal law says the Federal Reserve shall provide services to depository institutions.

We actually did apply for FDIC insurance and they were not interested in anything related to digital assets. And as I've said before, I agree with them. We saw how fast the money can move in the digital asset world. The traditional banking system is not set up for that yet. I mean, holy cow, just online banking movement is enough to take down a bank in today's day and age. Crypto moves so much faster than traditional payment rails.

Q: What was your reaction to the Fed denying your application?

A: We were blindsided. We had been making a lot of progress with the Fed. And then something clearly changed.

Q: Wyoming approved your charter but the Fed is basically vetoing that. What worries you most about a future where banking becomes more nationalized?

A: The degree of control that the federal government has tried to exert. Cleaning up fraud is not political. Banking should not be political either. We—we collectively, all the people—should not be using the banking system as a political hammer. And it shouldn't be against abortion clinics as much as it shouldn't be against oil and gas companies. Either side should stay out of this.

We should just let financial services happen and fight out the policy fights in the legislatures, including Congress at the federal level. But the bureaucrats in Washington discovered that they had power they didn't know they had.

This interview has been condensed and edited for style and clarity.

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Brickbat: Outta My Way Mon, 14 Aug 2023 08:00:11 +0000 A South African Police Service (SAPS) vehicle in traffic. | Mariagroth |

Eight police officers serving in a protection detail for South African Deputy President Paul Mashatile have been charged with assault, malicious damage to property, and firearms offenses after being caught on video kicking and stomping two army trainees by the side of a highway. Members of the police officers' unit, known as the "blue light brigade," reportedly have a reputation for driving at dangerously high speeds and for using force on people who don't get out of their way fast enough.

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Today in Supreme Court History: August 13, 1788 Sun, 13 Aug 2023 11:00:40 +0000 8/13/1788: Federalist No. 85 is published by Alexander Hamilton.

Alexander Hamilton

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When Trade War Threatens Real War Sun, 13 Aug 2023 10:00:21 +0000 featuretrade | Illustration: Joanna Andreasson; Source images: andreafidone/iStock, Alex Potemkin/iStock, PeopleImages/iStock, guvendemir/iStock, estt/iStock, ewg3D/iStock

Since the 2020 campaign, President Joe Biden has emphasized that America seeks "competition rather than conflict" with China. In the 2023 State of the Union address, amid tensions with the Chinese government over a spy balloon that floated through American airspace, he returned to the notion, saying his administration was willing to "work with China where it can advance American interests" while also bragging the U.S. was in "the strongest position in decades to compete" with the country.

That message of productive, if a bit unfriendly, economic competition is increasingly at odds with the aggressive trade policies Biden is pursuing behind the scenes. Indeed, it's at odds with what prominent members of the administration, including the secretary of the treasury and the White House's top national security adviser, are now openly admitting in public speeches: The United States is escalating its trade war with China, and it is doing so by targeting the free movement of goods and money across the globe in new ways.

"Technology export controls can be more than just a preventative tool," national security adviser Jake Sullivan told a small crowd gathered at the Capital Hilton, just blocks from the White House, in a speech delivered last September. "If implemented in a way that is robust, durable, and comprehensive, they can be a new strategic asset in the U.S. and allied toolkit to impose costs on adversaries, and even over time degrade their battlefield capabilities."

Sullivan said the theory had already been put to the test once. After Russia rolled tanks and troops into Ukraine in early 2022, the United States responded with financial sanctions aimed at Russian President Vladimir Putin and his cronies. It also imposed severe export controls meant to hobble Russia's industrial and military might. In Sullivan's telling, this represented "the most stringent technology restrictions ever imposed on a major economy."

"Those measures have inflicted tremendous costs," Sullivan continued, "forcing Russia to use chips from dishwashers in its military equipment."

The "adversaries" that could be targeted with that "new strategic asset" would not be limited to those that had invaded their neighbors. For Sullivan, the apparent success of the export restrictions targeting Russia meant we might reshape how America conducts foreign policy, particularly with regard to China. America should abandon the idea that it must only maintain a relative lead over China in the development of key technologies, he said. Instead, the tools and tactics of an international trade war could be used as an economic complement to America's military arsenal—one that could effectively serve as an opening salvo in a real war.

Sullivan was speaking at a gathering of the Special Competitive Studies Project, a joint venture of tech and national security experts funded by a private foundation created by former Google CEO Eric Schmidt. Four days before the summit, the group published a lengthy report, co-authored by Schmidt and Robert Work, a deputy defense secretary under both President Barack Obama and President Donald Trump. The report crystallized many bipartisan worries about how China's technological advances might factor into a future war, and its conclusions mirrored Sullivan's: "Warfare will be waged with and against industrial and financial power and pit innovation ecosystems against each other."

What both Sullivan and the report describe could be called a total trade war: a conflict where the exchange of goods and money across borders is viewed through a military lens.

Much of the discussion is focused on the perceived necessity of controlling the world's supply of semiconductors, the tiny silicon chips that power the fastest and smartest computers. But the conflict has already spilled over into other realms.

In that September speech, Sullivan suggested the next step would be to restrict outward-bound capital investments too. American investments, he said, must not be permitted to "enhance the technological capabilities of our competitors."

Consider this a corollary to the Biden administration's more well-publicized Buy American mandates: a "Sell to Americans" rule—or, at least, a "don't sell to anyone the American government dislikes" rule. While the former mostly involves dumping billions of taxpayer dollars into questionable subsidies for semiconductors and other high-end tech manufacturing, the latter is aimed at policing how American investors and businesses spend their money. With the help of allied governments in Europe and Canada, the goal is to cut off huge swaths of global capital markets in order to curb investments in China.

The approach moves U.S. trade policy from a defensive posture to an offensive one, putting the nation's economy on what amounts to a war footing.

Over the past five years, America's trade war with China had targeted imports and sought to prop up domestic manufacturing in expensive and mostly ineffective ways. The new approach targets exports and investments in any technology the U.S. government deems vital to national securitya category that may be nearly limitless, given the government's propensity for stretching the limits of that term.

Much of this approach is being run through a shadowy governmental entity that draws together high-ranking officials from the federal military, intelligence, and political apparatus. It creates an environment where even domestic citizens and businesses are suspect—and where outbound capital investments in foreign countries must be scrutinized for giving potential succor to the enemy.

Militarized trade policy is a foolish and dangerous exercise that will further erode what remains of postwar norms about openness and free trade, boosting instead the zero-sum view that is causing more countries around the world to raise barriers to trade. If it takes hold, it will leave humanity less free and less prosperous. It might also lead to far greater calamity: If American officials are talking so openly about using economic policy as a form of military actionand thus, potentially, as acts of warhow long before other countries start taking them seriously?

Trade Secrets

At the center of the Biden administration's escalating war on trade and investment is a powerful government body that most Americans probably aren't aware of: the innocuously named Committee on Foreign Investment in the United States (CFIUS).

Created as a purely advisory agency by President Gerald Ford in 1975, CFIUS now includes high-ranking officials from the Departments of Commerce, Defense, Homeland Security, and State as well as the White House and the intelligence community. In 1988, amid a now-laughable panic about Japanese investors pouring money into American agriculture and industry, including the then-nascent semiconductor industry, Congress gave the committee the authority to block "mergers, acquisitions, or takeovers" of American companies by foreign investors, as long as the president signed off on the decision."

Part of Congress's motivation," the Congressional Research Service explained in a February 2020 report, "arose from concerns that foreign takeovers of U.S. firms could not be stopped unless the President declared a national emergency or regulators invoked federal antitrust, environmental, or securities laws."

CFIUS thus became a vehicle for sweeping, arbitrary presidential intervention into international business deals, executed under the guise of vaguely defined national security concerns.

George H.W. Bush was the first president to take advantage of these powers. In 1990, he ordered the China National Aero-Technology Import & Export Corporation to divest its acquisition of MAMCO Manufacturing, a maker of precision plastics used in aeronautical equipment. That authority would not be invoked again until 2012, when Obama blocked a Delaware-based company with Chinese subsidiaries from acquiring four American wind farms, one of which was located near a Navy base in Oregon. Four years later, he blocked a Chinese investment fund from buying AIXTRON, a Germany-based semiconductor firm that owned some American assets.

Trump also invoked those powers twice. In 2017, he blocked a Chinese investment firm from buying the Lattice Semiconductor Corporation, an Oregon-based chip design company. A year later, he made a much bigger splash by blocking Broadcom's $117 billion purchase of Qualcomm, one of the leading American chip-making companies. Though China was not involved in that purchase, the specter of American fears about China's technological advancementsspecifically at the telecom company Huaweiwas central to the decision. Without a domestic champion for the production of 5G telecom devices, Trump wrote in his executive order blocking the purchase, "China would likely compete robustly to fill any void left by Qualcomm as a result of this hostile takeover." In a March 2018 letter announcing CFIUS' decision, a Treasury Department official underlined the reasoning: the potential merger "could pose a risk to the national security of the United States."

Since its creation, CFIUS has operated inside a black box. It does not acknowledge that any specific investments are under review, and it is not required to publicly announce its decisions. In an annual report to Congress, CFIUS provides only limited details, like the number of investigations undertaken and, in broad strokes, the industries involved.

Those reports show that the committee was active in the late 1980s and early 1990s. But as the Japanese panic subsided, so did the committee's workload. From 1993 to 2005, it reported fewer than 82 investigations each year—down from a peak of 295 in 1990, when four of those investigations eventually reached the president's desk (although Bush took action only in the MAMCO case).

Lately, the previously sleepy CFIUS has been more active. It has investigated more than 600 transactions since 2017, about five times as many as it had in the five years before Trump took office.

It was also granted more power. The Foreign Investment Risk Review Modernization Act of 2018 broadened the committee's ability to intervene in transactions involving "critical" technology. Naturally, the committee gets to decide what counts as critical.

The Biden administration is now taking CFIUS to another level. In September, just days before Sullivan's speech, Biden issued an executive order instructing CFIUS to focus more attention on supply chains. Under the new guidance, the committee is charged with reviewing transactions for national security risks in several categories, including biotechnology, quantum computing, and climate adaptation. That means the committee's authority is expanding not only in breadth but in depth. Relative to the pre-2018 status quo, it can investigate more transactions and now has the authority to follow those transactions up and down the supply chain.

That executive order "puts us back ahead of the game," Sullivan said days after it was signed. That, he promised, was just the start. "Looking forward, we are making progress in formulating an approach to address outbound investments in sensitive technologies, particularly investments that…could enhance the technological capabilities of our competitors."

In December, Congress and the Biden administration took the first real step toward that goal. Tucked into the $1.7 trillion omnibus spending bill that sped through Congress before Christmas was a provision ordering the Treasury Department to produce a report detailing how a potential outbound investment screening mechanism would work and how much it would cost.

In other words, the federal government would for the first time scrutinize not just foreign investments in the U.S., but how American-based capital is invested abroad.

Trade and Tradeoffs

Outbound investment screening could be added to CFIUS mandate, or it could be handled by a new agency. Either way, officials are moving the plan forward."

We are considering a program to restrict certain U.S. outbound investments in specific sensitive technologies with significant national security implications," Treasury Secretary Janet Yellen, who also chairs CFIUS, said in an April 20 speech at Johns Hopkins University. Yellen framed the possible program in much the same way Sullivan had seven months earlier, as part of a broad effort to steer both exported goods and American investments away from China.

While the specifics remain vague, an outbound investment screening system of any kind "would substantially widen the scope of U.S. national security controls over investments that have traditionally been regarded as purely economic objectives," a trio of researchers at the Center for Strategic and International Studies (CSIS), a national security–focused think tank, warned in January.

In her speech, Yellen put a finer point on it: When economic and national security interests are in tension, she argued, national security must prevail. "Even though these policies may have economic impacts," she said, referring not only to the outbound investment screening proposal but also to export controls, "they are driven by straightforward national security considerations. We will not compromise on these concerns, even when they force tradeoffs with our economic interests."

This is a bipartisan impulse. Trump's aluminum and steel tariffs were enacted with a flimsy justification about how imported metals jeopardized national security. Biden has flipped that around. To qualify for subsidies included in the CHIPS and Science Act, for example, companies must pledge not to use the funds to expand operations in four countries, including China and Russia. The threat of scrutinizing private investments overseas signals another escalation.

All these maneuvers represent an overarching patternone that Sullivan helpfully laid out in that September speech at the Capital Hilton.

"We have to revisit the longstanding premise of maintaining 'relative' advantages over competitors in certain key technologies," Sullivan said. When it comes to "foundational" tech such as semiconductors and artificial intelligence, he argued, America should take a more active role to impede the technological advances of potential adversaries. "We must maintain as large of a lead as possible," he concluded.

That framework raises the stakes considerably. In the decades since the Cold War, America has been a leading advocate for lowering barriers to trade, in part because mutually beneficial exchanges foster peace: Nations that trade with one another have an incentive not to go to war. At its core, then, the argument for free trade requires separating the prosperity-generating economic sector from the zero-sum thinking that governs much of the rest of geopolitics.

But the Biden administration is building on the Trump administration's attempts to blur that line. Some former Trump administration officials are giving cover to the effort. In an October interview with The New York Times, the Trump-era national security adviser Matt Pottinger not only echoed Sullivan's framing of the U.S.-China relationship as one where America must maintain "as large of a lead as possible" but argued that doing so will mean actively inhibiting China's technological advancement.

"The Biden administration understands now that it isn't enough for America to run fasterwe need to actively hamper the [People's Republic of China]'s ambitions for tech dominance," Pottinger said. "This marks a serious evolution in the administration's thinking."

For such officials, it is no longer enough for trade to make America more prosperous. They think it's at least equally important to prevent certain other countries from prospering too. It's an inherently militaristic outlook, one that views the entire global economy as part of a battlefield.

Export Chokepoints

We tend to think about global trade in terms of physical stuff: container ships and the cargo they carry, from T-shirts to iPhones. Exports and imports are tangible things, easily conceptualized and counted.

As a result, we also tend to think about restrictions on trade as being policies that stop the exchange of those physical goodsor, as with tariffs, that make it more difficult or expensive to move items across borders.

But in reality, there are three broad layers to the network of global trade that has made the world so prosperous in recent decades. Finished products and their component parts are the top, the most "seen" part. Below that is trade in the raw materials and equipment necessary to produce those finished goods. At the base are the capital investments that support the expansion of industry in places where it previously did not exist.

For the first several years of America's trade war with China, almost all the action was focused on the top layer: Trump's tariffs, for example. Both Trump and Biden have also made aggressive use of the Commerce Department's so-called entity list, a collection of foreign businesses and nonprofits (including some universities) that are forbidden from buying certain items from American firms without special permission from the federal government.

The Trump administration added dozens of companies to the list; the Chinese telecom manufacturer Huawei was perhaps the most high-profile example. The list has continued to grow under Biden. Since December 2022, more than 40 Chinese companies have been added to the do-not-export list. One of the most significant additions was Yangtze Memory Technologies, a leading Chinese semiconductor manufacturer.

On March 23, another 14 Chinese firms were added to a separate Commerce Department list of "unverified" companies to which exports can be blocked unless the foreign companies agree to allow American inspections of their facilities. "Enforcing our export controls is a crucial part of protecting American national security," U.S. Deputy Secretary of Commerce Don Graves declared in a statement announcing that action. "We are committed to using all of the tools at our disposal to establish how advanced US technology is being used around the globe."

In keeping with that strategy, Washington has sought to expand the conflict into the two other layers of the global trading system. In 2018, for example, the Trump administration successfully lobbied the Dutch government to prevent ASML, a Netherlands-based firm that is the world's leading supplier of semiconductor manufacturing equipment, from selling its products to Chinese chip manufacturers. Shortly before leaving office, Trump placed China's top semiconductor manufacturing firm, the Semiconductor Manufacturing International Corporation, on the entity list, effectively banning any American company from selling to it as well.

Sullivan's September talk about the geopolitical power of export controls was a signal of the perceived success of those actions. In October, the Biden administration doubled down by issuing new rules aiming to block China's access to semiconductor manufacturing equipment, component parts of that equipment, and any design software that might be used to build that equipment or advanced, artificial intelligence–capable chips.

"With the new policy…the United States is firmly focused on retaining control over so-called 'chokepoint' (or as it is sometimes translated from Chinese 'stranglehold') technologies in the global semiconductor technology supply chain," writes Gregory C. Allen, a senior fellow at the CSIS. "In doing so, these actions demonstrate an unprecedented degree of U.S. government intervention to not only preserve chokepoint control but also begin a new U.S. policy of actively strangling large segments of the Chinese technology industry—strangling with an intent to kill."

The final step seems obvious. Having targeted the global trade in semiconductors and the exchange of semiconductor-making equipment and know-how, the administration is now cranking up an investment-screening system that targets the lowest level of the trading system.

America is both joining and reinforcing a global trend. According to the United Nations Conference on Trade and Development, 63 percent of global investments were subject to a screening process last year, up from 52 percent in 2020. More such mechanisms are in the works.

In the European Union, six member states set up new investment screening regimes last year and three other countries tightened existing rules, according to The Economist. Both the Netherlands and Canada have announced plans for investment-review schemes similar to CFIUS and could have them running by the end of this year.

But if America implements an outbound investment screening system, it will join a much smaller group. According to the CSIS, only South Korea and Taiwan currently have similar mechanisms. (Taiwan's program is narrowly focused only on investments in China, a more understandable arrangement given the historical tensions between the island and the mainland.)

A January analysis of Washington's proposed screening system found it could cover 43 percent of American investment in China. "In addition to slowing new investment, a new regime could also pressure US businesses to reassess existing operations in China because of potential effects on revenue, profits, and market share," reported the Rhodium Group, an economic think tank focused on U.S.-China policy. "The proposed mechanism could accelerate the already visible shift in US-China investment relations away from 'active' channels (long-term direct investment) toward more 'passive' channels (securities investment and the sourcing of non-sensitive inputs)."

These new barriers will likely change how investments flow around the globe. In prioritizing national security above all, America might be willfully cutting off the fuel that powers the engine of global trade.

In December, as the Taiwan Semiconductor Manufacturing Company, the world's leading chipmaker, announced the installation of its equipment in a new fabrication plant in Arizona, company founder Morris Chang offered a bleak assessment of the global semiconductor trade.

"Globalization is almost dead and free trade is almost dead," he said. "A lot of people still wish they would come back. But I don't think they will be back."

'A Commercial Police State'

Sullivan's September remarks showed that the administration wants to wipe away the key distinction between economic issues and national security ones—at least for certain technologies. A more recent speech, delivered at the Brookings Institution on April 27, offered an even more chilling view of the future."

This moment demands that we forge a new consensus," Sullivan said, sweeping aside what he said was an imperfect postwar norm of free trade and economic liberalization. That new consensus would reflect what Sullivan called Biden's "core commitment—indeed, his daily direction to us—to more deeply integrate domestic policy and foreign policy."

That vision goes well beyond export controls and outbound investment screening systems. It includes the giant semiconductor subsidies in the CHIPS Act, and the more aggressive use of export controls such as the Commerce Department's entity list. Above all, it means a greater conflation of private economic issues with the geopolitical scramble for power.

"A modern American industrial strategy," Sullivan explained, "identifies specific sectors that are foundational to economic growth, strategic from a national security perspective, and where private industry on its own isn't poised to make the investments needed to secure our national ambitions."

In short: If it produces profit, if it matters to the military, or if it has any vague connection to the still-more-vague notion of America's "national ambitions," the government gets to decide whether it can be bought, sold, or supported with private investments.

If there's a silver lining to all this, it's the same one that hides inside any proposal to expand government: It's tough to get the specifics right.

"In order for such restrictions to succeed, the United States would have to become a commercial police state on an unprecedented scale," wrote Adam Posen, president of the Peterson Institute for International Economics (PIIE), in a March article for Foreign Policy. "The United States would also have to monitor and prevent its own headquartered companies from moving activities abroad. Washington has done this, on a limited scale, on specific technology transfers. But scale matters, and current proposals would be an order of magnitude more ambitious and thus infeasible."

After Yellen's and Sullivan's April speeches failed to offer much in the way of specifics about how the outbound investment screening tool would operate, some observers suggested there may not be a clear path forward.

"The fact that they left the description of these tools vague seemed to reflect that the administration is having a challenging time balancing the planned restrictions against the concerns of a private sector that continues to have a stake in Chinese investments," wrote Martin Chorzempa, a senior fellow with the PIIE. "The vision advertised is bold, but its ultimate success is in question," wrote Mireya Solís, director of the Center for East Asia Policy Studies at Brookings. She suggested that Biden's decision to rely heavily on executive orders to impose this new "international economic strategy" would leave Congress as well as the private sector feeling marginalized.

Congress might get involved, but it's unlikely to stand in the way. In early May, Senate Majority Leader Chuck Schumer (D–N.Y.) reportedly tasked Democratic committee chairs to begin working on what he called a "China competition bill." There's likely to be plenty of interest on the other side of the aisle too. "If one of the bigger things we did over the last four years was beef up CFIUS process to more closely scrutinize Chinese investment in the United States, I think the next phase of that is going to be looking at capital flows from America to China," Rep. Mike Gallagher (R–Wisc.) told Semafor in January.

Any congressional effort is likely to build upon a 2021 proposal by Sens. Bob Casey (D–Penn.) and John Cornyn (R–Texas), who authored a bill to create an outbound investment screening program similar to what the Treasury Department is now contemplating.

A bipartisan group in the House introduced a new version of that legislation in early May. The bill calls for a new committee that looks a lot like the existing CFIUS—drawing together leaders of the Departments of Commerce, Treasury, Defense, Homeland Security, and Labor, along with intelligence officials—to block foreign investments. The lawmakers frame the effort as a way to prevent outsourcing, and their bill quickly scored an endorsement from Liz Shuler, president of the AFL-CIO.

This rush to create yet another executive-branch black box with poorly defined powers over how American companies and individuals spend their money abroad deserves more scrutiny than it is likely to receive. By restricting trade, we are hurting not just others but ourselves.

At the group's annual China Business Conference on May 10, U.S. Chamber of Commerce President Suzanne Clark spoke directly to the potential dangers of this rush to stigmatize American investment in China as a national security risk. "We must safeguard our national security and our values," she said, stressing that being asked to pick between them is a "false binary."

"Transactions that don't pose a threat to national security strengthen the U.S. economy, present opportunities for small businesses, and improve the standard of living for millions of Americans," Clark said. "If we treat every economic transaction as a risk, we lose focus on areas that truly pose a threat."

It's been more than five years since Trump's infamous declaration that "trade wars are good and easy to win." It turns out that trade wars are easy—to start and to escalate. But not to win. Biden has maintained Trump's tariffs and now seems poised to expand the trade war, a strategy that carries real risks. The current approach requires a complex mix of interventions in the form of subsidies for domestic technology manufacturing and policing of global supply chains. It is built on the assumption that government officials will make the right calls about which economic issues count as a clear "national security" concerns, unmuddied by the inevitable campaigns to influence their decisions. It also assumes that future presidents, possibly including Trump, will staff those positions with competent and clear-eyed officials too. Do you really want to take those odds?

The people pushing this "new consensus" also make a dangerous assumption about geopolitics. In trying to wall off investment in China, the White House is giving countries an incentive to build more barriers to trade and investment around the world—and not all of the new rules will be oriented as America desires. A zero-sum global economy will leave many people worse off, and it will raise the stakes for conflict over the scarce resources being jealously guarded behind national borders. Trade has long been an engine for global economic growth and a way to help keep the peace between nations. In trying to turn it into an exercise in military might, Biden and his enablers in Congress risk turning what should be an engine of peace into an engine of war.

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Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump Sat, 12 Aug 2023 22:58:42 +0000 I'm delighted to be able to pass along this response by Prof. Michael McConnell (Stanford Law School) to a couple of items that were posted on the blog in the last few days:

There is a recent flurry of interest in Section 3 of the Fourteenth Amendment, which bars any person who has "engaged in" an "insurrection or rebellion" (after having previously taken an oath to support the Constitution) from holding state or federal office. This provision has played no significant role in American governance since 1872 and was regarded by many scholars as moribund. The revival of interest in Section 3 is sparked by scholarship by several scholars with impeccable conservative credentials, including my friends Will Baude, Michael Paulsen, and Steve Calabresi. See  and Their work advocates a "broad, sweeping" interpretation of the disqualification provision, and claims that under Section 3, Donald Trump is ineligible to run for a second term, without any further process, hearings, or adjudications. Already it has drawn the attention of the New York Times, and presumably will fuel efforts to keep Trump off the ballot.

I have no truck with Trump, for whom I have low regard. But in the haste to disqualify Trump, we should be wary of too loose an interpretation of Section 3.

We must not forget that we are talking about empowering partisan politicians such as state Secretaries of State to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555 (1964). The broader and more nebulous the definition of engaging in insurrection, and the fewer the procedural safeguards, the greater the danger.

Section 3 speaks of "insurrection" and "rebellion." These are demanding terms, connoting only the most serious of uprisings against the government, such as the Whisky Rebellion and the Civil War. The terms of Section 3 should not be defined down to include mere riots or civil disturbances, which are common in United States history. Many of these riots impede the lawful operations of government, and exceed the power of normal law enforcement to control. Are they insurrections or rebellions, within the meaning of Section 3?

I have not done the historical work to speak with confidence, but I would hazard the suggestion that a riot is the use of violence to express anger or to attempt to coerce the government to take certain actions, while insurrections and rebellions are the use of violence, usually on a larger scale, to overthrow the government or prevent it from being able to govern.

Moreover, Section 3 uses the verb "engage in," which connotes active involvement and not mere support or assistance. Significantly, Section 3 also uses the term "give aid and comfort to"—but this is reserved for giving aid and comfort to the "enemies" of the United States, which has historically meant enemies in war. Bas v. Tingy (1800). That Section 3 uses both terms, with different referents, strongly suggests that "engage in" means more than just give "aid and comfort" to an insurrection. Baude and Paulsen maintain that Section 3 "covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support." They explicitly state that Section 3 trumps the First Amendment. The terms "broad range of conduct" and "indirect support" are ominous, especially since they also say that Section 3 trumps the First Amendment and does not require due process. What could go wrong?

Putting together my friends' broad definitions of "insurrection" and "engage," and lack of concern about enforcement procedure, I worry that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot. Imagine how bad actors will use this theory. If that is what Section 3 necessarily means, we have to live with it. But in my opinion, we should seek the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent. In the absence of actual engagement in actual insurrection, judged as such by competent authorities, we should allow the American people to vote for the candidates of their choice.

Congress has enacted a statute, 18 U.S.C § 2383, which covers participation in rebellion or insurrection, and which provides that those found guilty "shall be incapable of holding any office under the United States." This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step. It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute. It is not obvious that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so.

Note that the "friends" here isn't just the lawyer conceit of referring to opposing counsel as "my friends"; I think McConnell and Calabresi, Baude, and Paulsen are indeed friends, and McConnell, Baude, and Paulsen are actually coauthors (together with our own Sam Bray) of a casebook on the Constitution. Baude also clerked for McConnell when McConnell was a Tenth Circuit judge (as did Bray). As you might gather, I'm always delighted to see—and, when possible, host—such substantive debates among friends and colleagues.

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Journal of Free Speech Law: "Where's the Liability in Harmful AI Speech?," by … Sat, 12 Aug 2023 18:09:12 +0000 The article is here; here is the Abstract:

Generative AI, in particular text-based "foundation models" (large models trained on a huge variety of information including the internet), can generate speech that could be problematic under a wide range of liability regimes. Machine learning practitioners regularly "red-team" models to identify and mitigate such problematic speech: from "hallu­ci­nations" falsely accusing people of serious misconduct to recipes for con­structing an atomic bomb. A key question is whether these red-teamed behaviors actually present any liability risk for model creators and deployers under U.S. law, incentivizing investments in safety mechanisms.

We examine three liability regimes, tying them to common examples of red-teamed model behaviors: defamation, speech integral to criminal conduct, and wrongful death. We find that any Section 230 immunity analysis or downstream liability analysis is intimately wrapped up in the technical details of algorithm design. And there are many roadblocks to truly finding models (and their associated parties) liable for generated speech.

We argue that AI should not be categorically immune from liability in these scenarios and that as courts grapple with the already fine-grained complexities of platform algorithms, the technical details of generative AI loom above with thornier questions. Courts and policymakers should think carefully about what technical design incentives they create as they evaluate these issues.

And here's the Introduction:

ChatGPT "hallucinates." That is, it often generates text that makes factual claims that are untrue and perhaps never even appear in its training data. It can get math problems wrong. It can get dates wrong. But it can also make things up. It makes up sources that don't exist, as one lawyer found out to their chagrin when they cited nonexistent cases in a legal brief. It makes up quotes.

And it can make up false claims that hurt people. Ask it what crimes a particular person has committed or been accused of, and ChatGPT might get it right, truthfully saying, for instance, that Richard Nixon was accused of destroying evidence to hide a burglary committed by his campaign, or truthfully saying that it is unaware of any accusations against a person. But it will also sometimes tell a false story about a crime. ChatGPT 3.5 (but not 4.0), for instance, says that one of us (Lemley) has been accused and indeed found liable for misappropriating trade secrets. (He hasn't.) Others have falsely been accused by ChatGPT of sexual harassment.

This isn't a problem of bad inputs. Rather, it is a function of the way large language models (LLMs) or foundation models work. ChatGPT and other similar models are trained to imitate large language datasets, but they don't generally copy text from any particular work directly. Instead, they generate text predictively, using the prompts and the prior words in the answer to predict what the next logical words in the response should be.

That enables them to generate new content rather than copying someone else's, and allows some amount of generalizable problem solving and writing ability. But it also means that the model is not simply taking content from existing writing (true or not), but potentially making up new things each time you ask it a question. When asked questions that involve well-known entities that appear often in the training data, the model can generate accurate text with high confidence, such as in the case of Nixon's crimes. But when queried about entities that appear much less frequently, these models can rely upon a "best guess" rather than a known fact. Chat­GPT might associate Lemley with trade secrets (and therefore, wrongly, with misappropriating them) because he has written academic articles on the subject, for instance.

Worse, the false statements read just like the true ones. Because language models are good at modeling human writing, they pepper their false reports of crimes with the same things a real report would include—including (made up) quotations from reputable sources (whose articles are also made up).

This is a problem. It's not great to have false accusations of crimes and other misconduct out there. But it's even worse because models like ChatGPT are good at mimicking human language and seeming authentic. People may be inclined to believe these statements, for several reasons: (1) human experience with similarly authoritative-seeming stories from the real world suggests that they are generally true, (2) ChatGPT is quite good at accurately reporting facts in many settings, and (3) people don't understand how ChatGPT works or that it suffers from hallucinations.

Even worse, such believable false statements are not the only form of speech by generative models that could cause liability. Models have already encouraged people to commit self-harm, leave their spouses, and more. They can generate threats to get users to comply with their demands. They can aid malicious actors by generating content for propaganda or social engineering attacks. They may give plausible-seeming answers to questions about coding that lead programmers astray. They can even be used in a semi-autonomous loop to generate malware that bypasses standard detection techniques.

These harmful behaviors may arise even when the model never trains on any one problematic text. In effect, it can hallucinate new harmful behavior, not grounded in anything it has seen before.

Researchers regularly spend countless hours probing models through a process called "red teaming" to identify potential harmful speech that the model may generate in response to users and then work to identify a fix for this behavior. The red-teaming scenarios used by researchers range from defamatory hallucinations to hate speech to instructions on how to create a nuclear weapon. These are hard technical problems to solve, and a huge amount of research has focused on finding technical solutions to prevent harmful AI speech.

These are also hard legal problems. They raise thorny questions at the heart of both liability and immunity from it under Section 230 of the Communications Decency Act (hereafter "Section 230"). We discuss the nature of the problem in Part I, drawing on "red teaming" scenarios often used by researchers and real reports of suspect AI speech. As we show in Part II, there aren't any easy or perfect technical fixes to this problem, but there are ways to reduce the risks. In Part III, we show that it is not obvious that existing liability doctrines are currently capable of easily dealing with harmful speech from AI, nor are all designs for generative AI created equal in the immunity or liability analyses. We examine some recently proposed design fixes for hallucinations or bad behavior and examine how they change both the immunity and liability analysis for AI-generated speech.

Finally, in Part IV we offer some suggestions and warnings about how different legal outcomes might affect technical incentives. We suggest that there should not be broad-based immunity from liability, either formally or through the many roadblocks that current analyses face. But we also caution against broad-based liability. Instead, we argue the law should pay attention to the technical details of how foundation models work and encourage targeted investments into technical mechanisms that make models more trustworthy and safe.

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Fourth Circuit Concedes to Congress on Mountain Valley Pipeline Sat, 12 Aug 2023 17:30:18 +0000 Last month, the Supreme Court vacated a stay entered by the U.S. Court of Appeals for the Fourth Circuit preventing further construction on the controversial Mountain Valley Pipeline (MVP) pending a hearing on last ditch legal efforts to prevent the pipeline's completion. As I noted at the time, the Supreme Court's intervention here was somewhat unusual, but almost certainly prompted by the Fourth Circuit's own unusual (and unwarranted) conduct. Congress had enacted provisions in the Fiscal Responsibility Act of 2023 that expressly called for the approval of all remaining permits, ratified all prior federal agency permits, and constrained further judicial review of such permit approvals, leaving little for the Fourth Circuit to do and even less uncertainty about the ultimate outcome of pending litigation.

Yesterday, the U.S. Court of Appeals for the Fourth Circuit granted the motions filed by the MVP's owners and several federal agencies to dismiss pending petitions challenging the project under various environmental laws, though they do not seem too happy about it. Judge Wynn wrote the opinion for the court, joined by Judges Gregory and Thacker, each of whom also wrote a separate concurrence.

The opinions all suggest Congress's intervention presents serious and weighty separation-of-powers questions. I am unconvinced.  As I explained in a prior post about this litigation, Congress is doing little more than curtailing the administrative and judicial constraints on agency action that Congress erected in the first place.

It is worth remembering that the only reason environmentalist groups have been able to challenge the Mountain Valley Pipeline in the first place is because Congress decided to impose permitting and other requirements for projects like this and further provided for judicial review of the relevant agency determinations to ensure that Congress's standards had been met. What Congress giveth, Congress may also take away. Congress was not required to allow environmentalists or anyone else to challenge whether a Forest Service or Fish & Wildlife Service decision was arbitrary and capricious or otherwise not in accordance with law. Indeed, Congress did not even need to require that projects like the Mountain Valley Pipeline obtain federal permits at all. Thus Congress is certainly free to declare that the standards Congress set forth for projects like this have been met in this particular case—and that is what it did.

The judges apparently see things a bit differently—which explains why the panel entered a stay. But as Professor Dan Farber noted, because there was little doubt about Congress's authority to enact the relevant provisions–including that which provided that only the U.S. Court of Appeals for the D.C. Circuit could hear constitutional challenge to the law–there was no likelihood the MVP's challengers would ever prevail on the merits, so no basis for ordering such relief.

Judge Gregory writes separately to express grave concerns about Congress's actions. He writes:

What does Section 324 say about the rule of law today and the history from which it has taken root? The petitioners in these cases, the "inferior Courts," and Congress alike depend on the answer to that question. And the answer depends, in turn, on the fate of Section 324. Is it simply a change in the law? Or is it an instruction requiring that "the court must deny to itself the jurisdiction" originally granted to it by Congress "because and only because its decision, in accordance with settled law," is averse to the Mountain Valley Pipeline and favorable to its opponents? United States v. Klein, 80 U.S. 128, 147 (1871). Those who celebrate Congress's decision to pass Section 324 into law, no less than those who condemn it, may be forgiven for their judgments because the separation between the legislative and judicial branches presently lacks fortification. See Ante at 12–13 (detailing the Supreme Court's "fractured" decision in Patchak).

There can be no mistake, however, that Section 324 is a blueprint for the construction of a natural gas pipeline by legislative fiat. If that provision is likewise constitutionally sanctioned, then Congress will have found the way to adjudicate by legislating for particular cases and for particular litigants, no different than the governmental excesses our Framers sought to avoid. For that reason, I fear Congress has employed this Court's constitutionally directed deference to legislative prerogatives to undermine the Constitution and, in the process, it has made the Court an accessory to its deeds. If that is so, I wonder if Section 324 is a harbinger of erosion not just to the environment, but to our republic. That, only our Supreme Court can decide.

This is more than a bit overwrought. The only basis for the legal challenges to the MVP at issue here concerned whether various federal agencies had adequately complied with various administrative requirements Congress created. And if Congress sought to reduce those requirements, or deem them satisfied, it was free to do so. Nothing here, however, suggests that Congress is free to, say, authorize a pipeline to run roughshod over private landowners or insulate such a project from pre-existing legal constraints. In other words, what Congress did here was less order "construction of a natural gas pipeline by legislative fiat" than shave down the speedbumps to completion that Congress had itself created.

Judge Thacker also wrote a separate concurrence, raising the same separation-of-powers concerns and responding to public criticism of the Fourth Circuit's conduct.

While I join the conclusion that Congress has acted within its legislative authority in enacting Section 324(e)(2), I write separately because Congress's use of its authority in this manner threatens to disturb the balance of power between co-equal branches of government. Such exercises of the legislative authority "should be viewed with great skepticism." Patchak v. Zinke, 138 S. Ct. 897, 913 (2018) (Sotomayor, J., concurring in judgment). . . .

I am compelled to set the record straight with regard to some of the outside rhetoric that has been spewed in the midst of our work on these cases. My colleagues and I are not politicians or newspaper editorialists. . . .

In response to the passage of Section 324 on June 3, 2023, both Mountain Valley Pipeline, on June 5, and the federal agency Respondents, on June 14, filed motions to dismiss, arguing that in light of Section 324, this court no longer possesses jurisdiction over the pending litigation. Briefing on those motions was completed on July 10. Given the significance of the case and the importance of the issues involving the separation of powers, on July 12 we scheduled the motions for oral argument and expedited the timing of such argument. In other words, we set out to not only do our jobs, but to do so expeditiously. Yet, we have been variously referred to by certain media and politicians as overstepping, activist, alarming, willful, ignoring the law, and a judicial hellhole. Some have gone so far as to say that we are without jurisdiction to even hold a hearing and rule on the motions to dismiss. Wrong.

Although Congress certainly has authority to pass laws impacting federal court jurisdiction, no branch of government in our democracy possesses all powerful authority. That is basic Civics 101. We have three separate but co-equal branches of government: the legislative, executive, and judiciary. Congress makes the law, the executive enforces the law, and the judiciary interprets the law. Although Congress may act to strip federal court jurisdiction, that is not the last word on the matter. The courts still have a role to play. As the majority opinion lays out, "The threshold question before us is whether Section 324 prohibits this Court from determining if we have jurisdiction to review the petitions. In other words, does a federal court retain jurisdiction for the limited purpose of determining whether it has jurisdiction?" Maj. Op. at 7. It should go without saying that political pundits certainly do not get to decide whether our court has jurisdiction or when we can hold a hearing. We do.

If she is that concerned about what pundits are saying about her court's extraordinary actions, Judge Thacker may be spending too much time online. (Her opinion also cites tangentially related comments by Justice Kagan from an August 3 Politico article.) But note that in her recounting of the relevant events, Judge Thacker conveniently neglects to mention the stays entered by her court in July—the stays that prompted much of the public criticism of her court, prompted MVP's application to the Supreme Court, and prompted the Supreme Court's entry or extraordinary emergency relief.

I cannot speak for others who criticized the Fourth Circuit, but my objection was not to the court hearing arguments on the jurisdictional question or taking the time to write an opinion. Rather it was to entering a stay when there was no basis for doing so. (Of note, the Fourth Circuit did not merely enter an administrative stay, and the first stay was entered before the deadline for MVP and the federal government to respond to the stay request.) I am skeptical there was ever a serious constitutional question about Congress's intervention on behalf of the MVP, but even if there were, there was no serious question about Congress's ability to decide where such challenges can be heard.

Constructing additional pipelines (as opposed to electricity transmission) may or may not be a good idea. Reasonable minds may also differ on the extent to which such projects (and federal agency actions upon which they depend) should be subject to extensive environmental and other review. But it should be clear that these are decisions for Congress to make (particularly where, as here, no private rights are threatened). Insofar as Congress concluded that the administrative and other legal hurdles it erected to pipeline construction should be lowered for the MVP, Congress had the power to do that, and–contra the judges of this panel–I do not see how its choice to do raised serious separation-of-powers concerns.

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Journal of Free Speech Law: "Generative Artificial Intelligence and Trade Secrecy," by Prof. David S. Levine Sat, 12 Aug 2023 15:13:40 +0000 The article is here; the Introduction:

The era of generative artificial intelligence ("Generative AI") has begun, whether we want it to or not. As this Article explains, we also now have new methods for creating, losing, disseminating, and even leaking trade secrets as a result. Indeed, from ingesting trade secrets in its training data to sharing trade secrets in response to queries, Generative AI opens new challenges to trade secrecy even while it adds to an information ecosystem that thrives on knowledge dissemination. This Article is the first to examine this new and immediate challenge and its trade secrets implications. It is written not only to frame the discussion about Generative AI and trade secrecy, but also the impact of Generative AI on information control and flows more broadly, for future analysis.

Emerging from the debates in technology and academic circles about solving problems through massive computing power and automated decision-making, algorithmic discrimination, and privacy, Generative AI is now approaching the forefront of the basic questions of what it means to be human. Unusually, we can trace the day that this happened to November 30, 2022, the day that a hitherto largely unknown company, OpenAI, unilaterally decided to release its Generative AI, ChatGPT, for public consumption and use.

Generative AI is defined as

a set of algorithms, capable of generating seemingly new, realistic content—such as text, images, or audio—from the training data. The most powerful generative AI algorithms are built on top of foundation models that are trained on a vast quantity of unlabeled data in a self-supervised way to identify underlying patterns for a wide range of tasks.

Beyond the grand philosophical questions, AI also raises fundamental questions as to intellectual property law and information flows, because Generative AI creates. As Dan Burk explains in his recent article,

AI systems have been trained to generate standardized news reports, and it is now routine for machine learning systems to write short newspaper features, such as sports score reporting. AI systems are progressing toward the generation of more complicated texts, and may be expected to generate dramatic scripts, screenplays, stories, and other literary works.

The Internet did not create. The phonograph did not create. Nor did the printing press. These were revolutionary media for access, copying, and distribution of works created by humans. They were, by current measure, revolutionary platforms for content and speech.

Generative AI, as the name suggests, is different. It is not creating "ideas," per se, but creating content and speech in its most basic current form: words, images, and sound. Additionally, it makes that content intelligible, and even entertaining and useful, to humans. Through the probabilistic matching that it uses to create sentences and paragraphs based upon the data provided to it, Generative AI may stumble upon the incisive, the meaningful, the valuable speech that makes humanity communicative like no other living species. It may find correlations that humans would not readily conceive or see, and render them through text, sound, and images in cogent ways that may not occur to humans or would take massive time and effort to create. Therein lies the immediate upheaval: Generative AI is an intelligible, if often "weird," speech machine. In that sense, it creates information that can be useful in innovation and monetized. In that way, it can augment, or in more stark and dystopian ways, replace human creativity and speech.

This article will identify and analyze the most immediate concerns that arise from the confluence of Generative AI and the desire to maintain but also monetize trade secrets. The first part will discuss the basics of protecting trade secrets in the modern communications era and how Generative AI implicate speech interests, as best as we can tell from available information. The second and third parts identify a few immediate scenarios that warrant attention: Generative AI as a tool for trade secret misappropriation, and its ability to find and even create information that might otherwise qualify as trade secrets under certain circumstances and render that information free from trade secrecy's hold. As explained, trade secrets have already been disseminated by ChatGPT, causing companies like Amazon and Samsung to rein in their employees' use of the technology. The article closes with some thoughts on further research and on where we might be headed.

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Journal of Free Speech Law: My "Large Libel Models? Liability for AI Output" Sat, 12 Aug 2023 12:01:54 +0000 The article is here; the Introduction:

In March 2023, I asked ChatGPT-3.5 "What was [R.R.] accused of?" (I used R.R.'s full name, but I'll omit it here, for reasons that will become obvious.) The response began with a somewhat imprecise but mostly accurate statement of what R.R. had indeed been publicly accused of. But then ChatGPT added that,

In 2019, [R.] pleaded guilty to conspiracy to commit wire fraud and was sentenced to 3 years of probation and ordered to pay a fine.

When I probed further about the guilty plea, ChatGPT referred to a Reuters article, and even gave me a quote:

Certainly, here is a longer quote from the Reuters article published on December 5, 2018, that mentions R.R.:

"[R.R.], 35, pleaded guilty to one count of conspiracy to commit wire fraud and one count of aggravated identity theft, according to the U.S. Department of Justice. Prosecutors said that [R.], who operated an online reputation management company, and co-conspirators created fraudulent court orders and other legal documents to convince Google to remove negative reviews and other content about his clients. The scheme, which was carried out between 2014 and 2017, was designed to manipulate Google's search rankings in favor of [R.]'s clients, according to prosecutors. [R.] is scheduled to be sentenced on March 8, 2019."

But no such quote seems to appear in any archives of Reuters articles. I could find no record of any guilty plea by R.R. None of the other quotes that ChatGPT-3.5 passed along (in quotation marks) checked out, either. ChatGPT-4 and Bard have similarly invented false allegations, complete with invented quotes and invented newspaper articles—I give some examples in the Appendix, though I have more in my files. These Large Language Models (LLMs) seem to routinely erroneously produce false and defamatory statements.

Indeed, a libel lawsuit against OpenAI has already been filed, based on a claim that ChatGPT falsely summarized a complaint in a different case as alleging embezzlement by a particular person; that complaint actually had nothing to do with that person, or with embezzlement. Likewise, a libel lawsuit against Bing has been filed, based on a claim that Bing (which uses GPT-4 technology) responded to a query about "Jeffery Battle" with the following output:

This output apparently mixes information about the technology expert Jeffery Battle with information about the convicted terrorist Jeffrey Battle, and adds material that conveys the message that the output is all about one person (the word "However," coupled with the last name "Battle" without inclusion of the slightly different first name). Yet it appears that AI companies have focused little on the risk of libel, though they have focused on many other kinds of risks.

This is becoming especially significant as such AI programs are becoming integrated into search engines (such as Bing) and other products. If people were to end up viewing AI programs as merely fun toys that can't be trusted with regard to any important information—or just as generators of amusing fiction—then such false statements would cause little harm. But, as I'll discuss in Part I.B, I expect that many users will indeed view the AI programs as reliable enough that the users might, for instance, decide not to select one of dozens of job applicants, or not to deal with some professional or service provider, because of an allegation that the program outputs. And even if users realize that AI programs are no more reliable than, say, rumor or gossip, the law generally recognizes that rumor and gossip can be quite damaging, and can therefore be actionable.

Should, then, the AI programs' creators and operators, such as OpenAI (for ChatGPT) or Google (for Bard) be liable for defamation, based on their programs' output? Part I will analyze this question under the current rules of U.S. defamation law. I will tentatively argue that, when the "actual malice" standard applies, the standard might be satisfied if an AI company has received actual notice of particular spurious information being produced by its software but has refused to act. This would in practice require such companies to implement a "notice-and-blocking" system, loosely similar to "notice-and-takedown" systems required under the DMCA as to copyright and trademark infringements. And I will also discuss the possibility of negligence liability, when such liability is authorized under libel law, by analogy to negligent design product liability.

To be sure, allowing such liability could yield substantial costs. That is particularly so since it may require lay judges and juries to evaluate complicated technical claims about which designs are feasible. (Such concerns of course mirror the concerns about legal liability as to other products, such as pharmaceuticals or cars, or as to services, such as surgical procedures.) Part II will tentatively discuss some arguments for why the law might be changed, whether by courts, by legislatures, or by administrative agencies. Finally, Part III will offer some similarly tentative thoughts about how this might apply to other claims, such as false light, disclosure of private facts, the right of publicity, or negligence.

A terminological note: For convenience, I'll generally use the term "AI programs" to mean AIs that output information in response to a user prompt, though I realize that there are of course AI programs that do other things, such as operate self-driving cars. I'll also refer to "AI companies" as shorthand for companies that create AI programs and provide access to their services. My logic ought to apply to such AI programs however they are designed, whether they are based on LLMs or not, though I appreciate that parts of the analysis may turn on the specifics of each design.

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Barbie Girls Now Live in a Much Wealthier Barbie World Sat, 12 Aug 2023 12:00:18 +0000 Faces of six Barbie dolls looking up | Photo 147293395 © Erin Cadigan |

The Barbie movie has been this summer's biggest blockbuster, racing towards $1 billion in global ticket sales and reigniting age-old debates about what Barbie, the famous doll, means to American culture, the patriarchy, and feminism.

But this Barbie is an economist too. And she can also illustrate how average Americans are significantly more prosperous today than they were a few generations ago—despite the arguments made by populists on both the right and left.

Thanks to Jeremy Horpedahl, an economist at the University of Central Arkansas, we have what you might call the Barbie Price Index, which shows that the amount of work necessary to buy a single new Barbie has fallen quite a bit since the doll was introduced. Today, the average American woman has to work about 30 minutes to afford a Barbie. That's down from nearly two hours in 1959.


"Another way of thinking about it: with the same amount of work, a working mother today could buy her daughter 3-4 times as many Barbies as her counterpart in 1959," Horpedahl notes at Economists Writing Every Day, an economics blog.

On one hand, the decline in the Barbie Price Index shows how much women's wages have grown in the past six and a half decades. While women are still paid less than men, on average, the gap has closed considerably—and effectively vanishes once other lifestyle factors are taken into account.

But it also demonstrates something about the relative level of prosperity that today's Barbie-loving kids get to enjoy—and about the amount of work their parents have to do to deliver it.

It has become fashionable on the populist right to complain about stagnating male wages and a supposedly declining standard of living. Oren Cass, executive director of the right-wing think tank American Compass, published a "Cost-of-Thriving Index" earlier this year, claiming that the basic necessities for a middle-class lifestyle were no longer within reach for households relying on a single breadwinner. It would take 62 weeks of earnings—more than a full year—to pay for a year's worth of groceries, a home, health insurance for a family, a car, and to save for a child's college education, he argues. That's up from just 40 weeks' worth of earnings in 1985.

The study has some serious flaws, as Horpedahl and Scott Winship, a senior fellow at the American Enterprise Institute, have detailed at length. Chief among those problems is that Cass' analysis does not take into account taxes and various family-oriented subsidies delivered via the tax code. With those included, the so-called "cost of thriving" for families with a single male breadwinner has actually fallen since 1985.

But Cass' study also ignores the crucial role that women now play in the work force and in earning income to support their families. Including them in the overall assessment means that the cost of thriving has fallen by about 7 weeks since 1985, in part because women have seen bigger gains in earnings during recent decades.

Horpedahl tells Reason that the Barbie Price Index also demonstrates something else about the changing cost of an average American life. "It's easier to make manufactured toys cheaper than it is to make personal services cheaper," he says. "But even including the costs of all goods and services, the gains for women have been substantial."

Indeed, it is much easier to take advantage of economies of scale and cheaper labor markets to make plastic dolls than it is to provide essential services like health care and education. Even so, the falling costs of all the stuff that we buy—the physical necessities and the luxuries—in recent decades is something worth noting and celebrating.

Life in modern America might not be as fantastic as living in Barbie Land. But it sure beats the America of the past.

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Today in Supreme Court History: August 12, 1795 Sat, 12 Aug 2023 11:00:43 +0000 8/12/1795: Chief Justice John Rutledge takes judicial oath.

Chief Justice John Rutledge


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Baltimore Orioles Owners Demand Even More Unnecessary Taxpayer Money Sat, 12 Aug 2023 11:00:32 +0000 Camden Yards, the ballpark for the Baltimore Orioles, is packed with fans. | Mark Goldman/Icon Sportswire 749/Mark Goldman/Icon Sportswire/Newscom

The Baltimore Orioles have the best record in the American League, a stadium that is commonly ranked among the most beautiful ballparks in the country, and a $600 million commitment from the Maryland state government to improve it even more.

That, apparently, is not good enough for the Orioles-owning Angelos family.

Oriole Park at Camden Yards is owned by the state through the Maryland Stadium Authority, so the Orioles operate there under a lease, which is due to expire at the end of the year. It's almost certain they will extend that lease, because of the team's seven decades of history in Baltimore and the lack of viable stadium options elsewhere, at least in the immediate future.

The sticking point in lease negotiations is that John Angelos, managing chairman of the Orioles, is jealous of The Battery Atlanta, a mixed-use development next to Truist Park, home of the Atlanta Braves. In an odd arrangement, the county government owns the baseball park while the baseball team (more specifically its owners, Liberty Media) funded and own most of the adjacent development.

Angelos seems to dream of a similar arrangement, which would involve Baltimore giving him prime downtown real estate (presumably for free or a subsidized price) on top of the $600 million to be spent on stadium improvements. Public spending on stadiums for teams owned by billionaires evidently isn't enough anymore. This isn't just bad policy (in all cases) but in Baltimore's case is physically implausible. As The Athletic's Ken Rosenthal writes: "The necessary land for such a project around Camden Yards, however, does not exist. The ballpark sits in the middle of Baltimore, while Truist was built in a suburb 10 miles outside of Atlanta….Building an office complex, entertainment district or even a sole apartment building at Camden Yards would appear impractical."

As for the $600 million in government funds to be spent on improvements, it's not clear why they're necessary. Camden Yards is the 10th-oldest park in the league, having opened in 1992, but it already has wide concourses, plenty of food options, and unique features. The $600 million infusion isn't exactly needed to save a historical-yet-outdated ballpark, because it doesn't feel outdated. In fact, that's more than the $482 million of public money (in 2022 dollars) that funded the original project.

The idea was that economic development around the stadium would eventually pay for the original construction costs. But when the latest $600 million taxpayer commitment was announced, Angelos called it a "tremendous opportunity to redefine the paradigm of what a Major League Baseball venue represents and thereby revitalize downtown Baltimore."

As Kennesaw State University sports economist J.C. Bradbury tweeted, "The supposed example of how a properly designed ballpark project…can spur surrounding development now wants to develop the surrounding property whose development it didn't catalyze after 30 years."

Why do this? Nostalgia is one factor. As Reason's Matt Welch wrote in the May 2023 issue, "By demonstrating that people will indeed shell out good money to feel nostalgia for make-believe, Field of Dreams helped create the template for the modern baseball industry: Build expensive, 'retro'-looking stadiums and get taxpayers to foot the bill by selling them a mixture of gee-willikers Americana and economic analyses every bit as magical-realist as the source material."

Study after study after study has shown government subsidies of sports stadiums do not boost economic growth—they merely cost taxpayers money. Yet politicians continuously bow down to billionaire team owners.

Angelos is already in hot water for the almost three-week suspension of TV broadcaster Kevin Brown. Angelos was apparently not pleased with Brown, who merely noted on air a statistical fact that had been provided by the press team in their game notes and was shown on the team-owned broadcast network: The Orioles had as many wins in Tampa this season as in the previous three seasons combined.

Perhaps state and local governments should not be in the business of subsidizing billionaires who make such ridiculous decisions.

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Rob Long: Welcome to the Age of Blunder in Public Health, Foreign Policy, and…Hollywood Fri, 11 Aug 2023 21:04:16 +0000 Cheers producer explains why the studios are failing, the writers and actors are missing the big picture, and creators fear their audience.]]> long | Lex Villena

Today's episode is an audio version of The Reason Livestreamwhich takes place every Thursday at 1 p.m. Eastern on Reason's YouTube channel.

The topic this week was the strikes by Hollywood writers and actors and the guest was Rob Long, whose long and storied career in the entertainment industry includes stints writing and show running for the classic sitcom Cheers, among many other things. He's also a longtime contributor to National Review, a columnist for Commentary, a co-creator of the online community and podcast platform Ricochet, and the host of the weekly radio commentary Martini Shot.

Zach Weissmueller and I talked with Long about how the studios and streaming platforms like Netflix brought most of their problems on themselves; whether fears of artificial intelligence taking over Hollywood are overblown (spoiler alert: they are); why studios and production companies refuse to create more mass-audience content like the Roseanne reboot and Top Gun: Maverick; and why Rob believes we are in what he calls an "age of blunder," where really smart people in charge make really terrible decisions on everything from COVID-19 to foreign policy to the creation and distribution of TV shows and movies.

Previous appearance:

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AOC Slams the FDA's Harmful Overregulation of Sunscreen Fri, 11 Aug 2023 20:28:40 +0000 AOC against the FDA | Anthony Behar/Sipa USA/Newscom

Credit where credit is due: Rep. Alexandria Ocasio-Cortez (D–N.Y.) may be a self-described democratic socialist, but when it comes to the Food and Drug Administration's (FDA) overregulation of sunscreen—a nontrivial issue—she sounds a lot like a libertarian.

In a recent TikTok video, AOC interviewed esthetician Charlotte Palermino about the abysmally limited sunscreen options in the United States.

"U.S. sunscreen regulations are not necessarily making us more safe," explains Palermino. And AOC agrees:

AOC is calling out a very real problem. Sunscreen is regulated like a drug, which means the product is subject to byzantine FDA regulations that have largely thwarted innovation in the category for the last 20 years.

As the economist Alex Tabarrok has pointed out, European and Asian countries enjoy vastly superior options.

"Suncreens in Europe and Asia are better than in the United States because more ingredients are allowed and these create more effective and more pleasing suncreens," he writes.

This is no accident, but rather the deliberate result of regulatory policy. The European Union, for instance, has approved 27 different compounds for use in sunscreen, whereas the FDA has only approved 17.

"The number of approved ingredients matters because not all filters can seamlessly be formulated into sunscreens or other suitable products for skin application," writes the Cato Institute's Gabriella Beaumont-Smith. "Moreover, some of the ingredients approved in the EU and Japan but not the US are more effective and long‐​lasting."

If the FDA won't clear more sunscreen ingredients for use in the U.S., the agency should at the very least allow reciprocity: Foreign sunscreens could be made available with warning labels noting that they were approved by European health officials but not by the FDA. Of course, the best option would be for U.S. regulators to simply get out of the way and acknowledge that these products are obviously safe for human use. Indeed, not approving them is the greater danger, since using sunscreen is one of the best ways to prevent skin cancer.

In her TikTok video, AOC encourages her supporters to confront their members of Congress on this issue. Ideally, she would pursue the argument she's making here to its logical end and endorse very broad regulatory reform. After all, FDA inaction is depriving Americans of much more than just sunscreen: Regulatory hurdles are partly responsible for everything from the baby formula shortage to the high price of insulin.

Nevertheless, it's good that even though AOC was feeling the Bern, she apparently doesn't want to get burned.

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]]> 59 AOC against the FDA