Saturday, June 06, 2020

The Evolution of Language

I learned something new today. On Bushrod Washington's memorial at Mount Vernon, the following is inscribed:

"Firm in every honorable purpose and pursuit. Yet gentle, humane, and condescending."

Condescending? What the .  . .? So it turns out that condescending was meant as a compliment back then. Basically, it meant "talking to people of lower social rank as if they were equals." Jane Austen, apparently, used the word this way in one of her novels. The assumption, of course, was that the person being condescending really was superior and was being modest or affable in talking to say, the servants. Interesting to see how words can change their meaning over time, in this case dramatically. 

Posted by Gerard Magliocca on June 6, 2020 at 09:58 PM | Permalink | Comments (0)

Friday, June 05, 2020

No vehicles in the park

No explanation needed.

Posted by Howard Wasserman on June 5, 2020 at 10:43 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Last act of a desperate man (or first act of Henry V)?

Many have pointed to the differences in how police responded to the George Floyd protests compared with the anti-shutdown protests. It is especially glaring to see police respond with resistance, impatience, and ultimately often-discriminate force and arrests of largely peaceful Floyd protests on public parks and sidewalks, while calmly de-escalating or ignoring heavily armed people in paramilitary gear in a space (the halls of the statehouse) they did not have a right to be in. Photos and videos show the latter protesters being as shouty and as in the officers' faces. And there were more explicit threats of unlawfulness, given that some protesters had military-grade weapons and were threatening government officials. Yet police stayed calm, used little force, and made few (if any?) arrests.

This is not new. In January 2017 (boy, does that seem like decades ago), I wrote about the lack of force and arrests in the first women's march and the airport protests following the first Muslim Ban. At the time I wondered why--whether it was as simple as the race of the protesters (or at least the racial valence of the protests, since many of the protesters and victims of police violence have been white).

One commenter suggested that the subject of the protests mattered: Police do not remain neutral and play peacekeeper when they and their misconduct are the targets of the protests, as opposed to President Trump or governors and their shutdown orders. Events of the past two weeks support that idea. Police in Minnesota were loaded for bear from the outset, prepared for confrontation and looking to stifle the assembly, before anything turned violent and before it spread to other cities; when people in other cities began protesting, police started from a confrontational, escalatory pose with the goal of clearing the streets. We have seen little of the patience and leeway accorded to other protesters. Videos making the rounds show police looking for an excuse to get physical and, once things have become physical, to clear the crowd. One video from Seattle shows a bike officer riding on the sidewalk and trying to squeeze into a narrow space between a person and the pushes; when he and the citizen unavoidably bump, the cop uses that as an excuse to make an arrest. Videos I have seen from yesterday in Buffalo, Philadelphia, and elsewhere show police determined to clear a space and taking out anyone in that space, regardless of whether they are peaceful and whether they are doing anything wrong.

It is telling that we have seen so many incidents of indiscriminate, unnecessary, and arguably excessive police force in response to protests against excessive force by police. And it is significant that we have seen so many incidents of police force despite officers knowing they are being filmed by every protester with a phone, not to mention media covering these events. One explanation is that police do not care; they are confident that nothing in the videos will cause them to lose their jobs or their qualified immunity. Another is that they are, intentionally or not, asserting power by showing what real excessive force looks like--"stop crying or I'll give you something to cry about"--and proving the protesters' point.

A third, more speculative explanation is that we are at the end of an era, that significant changes to policing and police impunity are coming. And at least some officers are trying to get in their last shots before it is too late. I hope reform is coming.

Posted by Howard Wasserman on June 5, 2020 at 12:42 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Thursday, June 04, 2020

Lawsuit over clearing Lafayette Square

Complaint here. Plaintiffs are Black Lives Matter DC and five individuals who were at the protests on Monday and would like to return; defendants are Trump, Barr, Esper, the acting chief of the U.S. Park Police, director of Secret Service, commander of D.C. National Guard, U.S. Army Chief of Staff, 100 John Does (federal law enforcement), and 20 John Poes (non-federal law enforcement). Claims are for violations of First and Fourth Amendments and conspiracy under §§ 1985(3) and 1986.

My prior post showed the problems the lawsuit faces. The Bivens and immunity problems do not go away. But the complaint finds cute ways to try show standing for prospective relief. It highlights plaintiffs' intent to continue demonstrating; the new W.H. perimeter prevents access to Lafayette Square or any protest space within view of the White House; and 3) statements by Trump and others to deploy violence against protesters--all of which establishes an imminent threat of future violence if they return to protest. The complaint also compares Trump's statements supporting protesters he likes (such as those who stormed statehouses in search of haircuts) and calling to "dominate" protesters he does not like, as a way to show that the actions against the protesters were viewpoint- and content-based.

Posted by Howard Wasserman on June 4, 2020 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Commemorating Tiananmen Square: A Case Study in the Failure of “People Power”?

Today is the 31st anniversary of the Chinese Communists’ repression of the student protests at Tiananmen Square. After thirty-one years, a memory, like a person, ought to be subjected to middle-aged reflection. I will, therefore, treat this anniversary as an opportunity to reflect maturely and even a little bit coldly on the lessons of Tiananmen Square. One of those lessons, I’ll argue below, is how “people power” fails when it is completely disconnected from the institutions it seeks to displace. So understood, Tiananmen is a grim reminder to current protestors, from Hong Kong to the streets of the USA, that crowds and chants without programs, institutions, and establishment alliances do not have a great track record of success in improving government.

By “people power,” I mean the idea that spontaneous crowds of people, unified only by their disgust with the injustice of an incumbent regime, can both topple that regime and bring about lasting desirable change in government. People Power played a significant role in the wave of democratizations that crested in the 1980s. Mass protests over Benigno Aquino’s murder in 1983 and Ferdinand Marcos’ stealing the 1986 election from Cory Aquino, Benigno’s widow, drove Marcos out of power in the Philippines. Mass mobilization helped enforce the results of the 1988 referendum against Pinochet in Chile. And, most memorably, 1989 saw mass demonstrations herald the beginning of the end of the Soviet-backed Communist regimes of Eastern Europe. Tiananmen Square’s repression, indeed, occurred on the same day that Lech Wałęsa‘s Solidarity Movement won the second largest bloc of seats in Poland’s Sejm in free elections brought about by Solidarity’s mass strikes and demonstrations a year earlier. The students’ protests at Tiananmen were supposed to be part of this great wave of democratic victories sweeping the globe. Alas, Tiananmen ended with a massacre, not an election.

This contrast between Solidarity and Tiananmen suggests how People Power succeeds and fails. The Solidarity movement was more than just a “movement”: It was an institution with the ability to negotiate with Wojciech Jaruzelski’s government, bargaining over those free elections that eventually led to the defeat of the Communist Party. By contrast, the students camped out at Tiananmen Square had no organized decision-making structure, no alliances with anyone in the PRC government, and no capacity to strike compromises. With the more iconoclastic student factions denouncing even reformist Communists like Dai Qing as “neo-authoritarians,” the students gave the Chinese Party the choice of killing itself or killing the students. Naturally, the CCP chose the latter option.

There are grim lessons here for the United States’ “George Floyd” protests and Hong Konger protestors. Pure People’s Power is likely to fail, as peace activist and scholar April Carter has argued, because unfocused mass grievance cannot negotiate with incumbent officials by making limited demands that the latter are prepared to accept. Hong Kong protestors boast that their crowds follow Bruce Lee’s advice to “be water” By adopting a fluid, leaderless mass the police cannot arrest and courts cannot try and imprison. True enough — but a mere flood leaves nothing behind but mud and wreckage, inviting incumbent officials to rally support with the grim warning, “après nous, le déluge.” (Law-and-order Republicans might get an electoral boost in 2020 from such fears of disorder).

Continue reading "Commemorating Tiananmen Square: A Case Study in the Failure of “People Power”?"

Posted by Rick Hills on June 4, 2020 at 11:22 AM | Permalink | Comments (6)

What about Bivens? What about prosecutorial immunity? (Updated)

Rep. Justin Amash, the House member who left the GOP because of Trump, announced plans to introduce a bill (co-sponsored with Ayanna Pressley (D-MA) to eliminate qualified immunity. The bill would "explicitly not[e] in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability." (Update: Draft text).

But what about Bivens, which has no statutory basis? Federal law enforcement officers assert qualified immunity in Bivens actions (over, for example, using definitely-not-tear-gas-irritant-agents to disperse peaceful protesters); many of the Court's early qualified immunity cases were Bivens rather than § 1983 actions. In Abbasi, the majority incorporated some immunity considerations (e.g., over-deterrence of officials) to the special factors counseling hesitation. But that will not apply in basic Fourth Amendment claims against domestic law enforcement; those officers still fall back on qualified immunity. I suppose that if Amash's bill were to pass, the Court might eliminate immunity to keep Bivens and § 1983 parallel.

And what of other extra-textual absolute immunities that the Court has super-imposed on § 1983 (and Bivens, by extension). Prosecutorial misconduct contributes as much as police misconduct to the racial problems in the criminal justice system (distinct from excessive-force); absolute immunity leaves prosecutors free to engage in blatant misconduct, often shifting the litigation focus back to the police, who then assert qualified immunity. In theory, appellate review, attorney ethics, and electoral checks remedy or deter such misconduct. It has done nothing in practice, given the high standards for showing constitutional violations on appeal, reluctance to sanction prosecutors, and the fact that elected prosecutors run on obtaining lots of convictions as a result of prosecutorial over-reach.

The point is that qualified immunity is bad and should go. But it is not the only cause within the constitutional-litigation framework. (And this does not consider causes outside of constitutional litigation, such as unions and employment practices). Targeting qualified immunity alone--and only in the specific context of § 1983--misses the bigger picture and the many moving pieces necessary for reform.

Posted by Howard Wasserman on June 4, 2020 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 03, 2020

CDT challenges social-media executive order

The Center for Democracy and Technology has sued President Trump over the social-media executive order. Amazingly, that was issued less than a week ago--remember when that seemed this administration's most significant threat to free speech?

The complaint alleges CDT's organizational standing based on its interests in furthering free speech and online expression and the resources it will have to devote to engaging and monitoring the administrative actions the EO calls for. It also lays the ground for third-party standing on behalf of Twitter and other providers, arguing that the President's past retaliatory actions against private companies may deter them from filing lawsuits. The First Amendment theory is that the EO was retaliatory against Twitter for the exercise of its First Amendment rights, making it "ultra vires and therefore void ab initio."

The organizational standing theory works, at least for the moment. While controversial, this is the same theory that human-rights, immigration, and refugee organizations used in the travel ban and similar cases. Courts do not seem ready to jettison the theory. I am less sure about third-party standing, because it is not clear that "fear of Trump criticism affecting our stock price" is a sufficient barrier to Twitter and other companies enforcing their rights.

But it seems to me that the action fails because, at this point, the EO does not do anything. A legal enactment (whether an EO, regulation, or statute) does not violate rights or cause injury (beyond chilling effect, which is insufficient); the enforcement of that enactment violates rights or causes injury. A court cannot erase an invalid EO any more than it can erase an invalid statute; it can only declare its invalidity and enjoin its enforcement.

The problem is that this EO alone does not do anything and there is nothing to enforce right now, thus it cannot violate rights, cause injury, or otherwise do something that a court can enjoin. The EO commands administrative action that might, when taken, violate the First Amendment, the APA, or some other statute (I have not seen anything to make me believe the FCC has authority to interpret or apply § 230). But we will not know whether those administrative actions cause injury or violate rights until they are taken. Same with the FTC and DOJ surveillance and information-gathering--until we see the form it takes, we cannot know whether it is lawful. That also seems to create a problem for the retaliation argument. If the FCC has authority to interpret § 230 and it comes up with a valid interpretation, the retaliatory motive does not render it unlawful, at least so long as the resulting regulation is not limited to Twitter.

The only question is whether this failure is treated as standing (no one has been injured because the government has not done anything), ripeness (the issues are not fit for judicial resolution), or as substantive First Amendment (nothing happened yet to violate the First Amendment). But, at this point, I do not see how this lawsuit succeeds against an EO that, for the moment, is for show.

Posted by Howard Wasserman on June 3, 2020 at 12:02 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

JOTWELL: Wasserman on Bray on mischief

I have the new Courts Law essay, reviewing Samuel L. Bray, The Mischief Rule (forthcoming Geo. L.J.) and connecting his arguments about the statutory mischief rule as a solution to snap removal.

Posted by Howard Wasserman on June 3, 2020 at 10:39 AM in Article Spotlight, Civil Procedure | Permalink | Comments (3)

Tuesday, June 02, 2020

Suing over Monday's crowd dispersal

Here is what we know happened around 6:35 p.m. Monday next to Lafayette Square: Federal law-enforcement officials threw something (dispute whether it was tear gas or a smoke bomb) and pushed throw to move the crowd out of the area. Prior to that point, the crowd was lawfully gathered in a space that has been held to be a traditional public forum, was engaging in peaceful expressive activity, and not engaging in unlawful conduct. Attorney General Barr ordered federal officials to move the crowd, so the space was clear for the President to have his photo opportunity in front of the church. This was captured live on TV, as well as recorded on numerous phones. Federal officials also moved church personnel off of church property through tear gas or other device, presumably at the AG's command.

It looks like a significant violation of the First Amendment. But:

Continue reading "Suing over Monday's crowd dispersal"

Posted by Howard Wasserman on June 2, 2020 at 06:56 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Kolber Signs Off

It was great guest blogging at Prawfs during the month of May. My thanks to Howard and his Prawfs colleagues, to all those who participated in the Legal Discontinuities Online Symposium, and to viewers and commentators like you. Here's a link to my posts during this stint and a link to the posts from the symposium.

Lastly, here's Cal Newport writing in favor of blog resurgence (but maybe I'll tweet here occasionally).

Posted by Adam Kolber on June 2, 2020 at 11:13 AM in Adam Kolber | Permalink | Comments (2)

Monday, June 01, 2020

"We have a different Court"

In an apparently unhinged Monday phone call with governors, the President urged states to enact new laws prohibiting flag burning. According to sources, the President said "We have a different court" and that "if you wanted to try a very powerful anti-flag burning law, we’ll back you.” (Not sure if that means the administration would not back a state that tried a moderately powerful law).

I know these are unserious ravings of an unserious person, but it does reveal how little he understands.

First, under judicial departmentalism, Trump's suggestion is lawful and consistent with his constitutional oath, as is action by any governor and legislature. If they believe these laws consistent with the First Amendment, they can act on that understanding.

Second, for what it is worth, new laws would be unnecessary in many states where anti-flag-burning laws remain on the books. They remain unenforced because state officials know what would happen if they tried.

Third, even if a logical solution to the problem of violent protests, it could not resolve the current situation (assuming these protests peter out after a few more days). Imagine a state enacted or announced plans to enforce a flag-burning law tomorrow. The law would be enjoined immediately by a district court and affirmed by a court of appeals, both bound by Johnson and Eichman. It would be awhile before it reached that "different Court." Alternatively, the right to burn a flag is one of the few clearly established rights, so no officer would attempt to enforce that law on pain of losing qualified immunity in a subsequent civil action.

But indulge the President's fantasies that "we have a different Court" (Kennedy was the last holdover from the Eichman Court) that would resolve the flag-burning question differently. Would it, writing on a clean slate? The Court has earned its reputation as extraordinarily speech-protective; no coherent theory of free speech can tolerate the viewpoint discrimination that would prohibit burning a flag in protest but allow wearing a flag as a shirt or altering a flag to create a different message. At worst, the Chief would join the liberals in another 5-4 decision. But Gorsuch appears as speech-protective as his former boss. Alito and Thomas have cited Johnson to support the principle of viewpoint neutrality (when other cases could have served the same purpose), which I would think they would not have done if they had the doctrine in their cross-hairs. Plus, this would provide an easy opportunity for Republican appointees to silence the "Court is political" voices by demonstrating that their jurisprudence does not inevitably and ineluctably lead to the Republican-preferred outcome. Justice Scalia got 30 years out of Johnson as pretty much the lone example of his originalism leading to a disfavored outcome. So perhaps the President is right--we do have a different Court and it would declare the law invalid by a 9-0 vote rather than a 5-4 vote.

Posted by Howard Wasserman on June 1, 2020 at 03:33 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

The Initially-Foreign-Trained Law Student and the Legal Academic Job Market - Lubin Guest Post

The following is a guest post by Asaf Lubin.

For those considering a career in legal academia, these are uncertain times. The Association of American Law Schools has recently decided to cancel its 2020 Fall Faculty Recruitment Conference due to COVID-19. Instead, law schools are now invited to rely on the Faculty Appointments Register (FAR) to reach out directly to candidates for scheduling what will most likely be online interviews. Of course, it remains to be seen how many law schools will actually hire next year as “pay cuts, salary freezes, and furloughs are hitting law schools” across the country.

As we look to examine the long-lasting impacts of COVID-19 on the legal academic job market, one category of candidates deserves our special attention. Initially-Foreign-Trained Law Students (IFT or IFTs) on the market have faced unique challenges that have mostly gone unvoiced. While battling visa issues and the emotional and financial costs of relocating a family, this group of candidates also had to endure various forms of explicit and implicit bias. These adversities, and others, make what is already an uphill climb––trying to succeed in a highly competitive buyers’ market––seem insurmountable. Especially at this time, as the growing unemployment numbers due to the coronavirus are triggering a general isolationist sentiment centered on preserving American jobs for American workers, the challenges for IFTs loom larger. This sentiment is one shared by the current administration. President Trump recently signed a “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” According to some reports, Trump is expected to only broaden and tighten these foreign worker bans and restrictions, as pressure from conservative lobbying groups to do so intensifies.

Thanks to the dedicated work of Sarah Lawsky, who through this blog annually compiles information and produces reports about entry-level hires, we now have a decade of data easily accessible to us. I therefore set out to explore what the numbers have to say about IFT hires. Given that there are few resources available that exclusively target this group of market goers, the short essay I wrote provides some initial insight into their professional and geographical backgrounds and academic interests as well as offers some general advice.

Continue reading "The Initially-Foreign-Trained Law Student and the Legal Academic Job Market - Lubin Guest Post"

Posted by Sarah Lawsky on June 1, 2020 at 11:00 AM in Entry Level Hiring Report | Permalink | Comments (0)

Saturday, May 30, 2020

Original Intent vs. Original Public Meaning

I'm still writing the portion of my book on Ogden v. Saunders (more on that to come). Here is one thought that flared up after reading Justice Washington's opinion.

He said there that his task was to discover the intent of the framers of the Constitution. There is a great deal of literature on the distinction in originalism between original intent, original understanding, and original public meaning. What I'm struck by is that original public meaning is a far more democratic understanding than original intent. To seek the latter, you are looking at the views of a small number of people. For the former, you are supposed to look at everything written at the relevant time and go more with a broader understanding that does not give special weight to the views of the drafters. This is, for example, a way of contesting John Bingham's view of the Fourteenth Amendment. Sure, he was the drafter, but were his views widely shared or even known.

To what extent, though, does original public meaning represent an anachronism by taking a more democratic view of original meaning? Maybe the answer is that original intent is the right approach to the Founding because that was a more elitist project. And the 14th Amendment, by contrast, should be read more in line with original public meaning because America was more democratic by then. Or maybe neither period should be viewed that way: only modern constitutional amendments (such as the 25th and 26th) can be so read because they were the only ones ratified by a very broad electorate.

Posted by Gerard Magliocca on May 30, 2020 at 10:18 PM | Permalink | Comments (7)

Friday, May 29, 2020

The remedy to be applied (Updated)

At the risk of spending more time taking seriously something fundamentally unserious.

As I am coming to understand it, § 230(c) does two things. (c)(1) says the ISP or web site is not liable as publisher or speaker for third-party content in actions for defamation, invasion of privacy, etc. (c)(2) accords immunity for "good faith" actions in restricting access or removing material that it believes unprotected or "otherwise objectionable" (although I am not sure what cause of action exists for an improper takedown). The premise of the "policy of the United States" reflected in the EO is that companies that engage in content- or viewpoint-based takedowns engage in "editorial conduct" do not act in good faith, thereby a) removing (c)(2) immunity and b) rendering them publishers who should be liable as such. Neither of these can be squared with the statutory text.

But what about what Twitter actually did in this case--engaging in its own speech by slapping a label on the post or promoting contrary messages. Section 230 is silent as to an ISP engaging in its counter-speech to the content it allow on its site. But no one doubts that a private bookstore or newsstand could allow content while labeling it or organizing it in a way that expressed the owner's distaste for that content and that it could not be liable for such actions. So even if the EO could remove an ISP's protection (which it cannot), it cannot stop it from doing what it did here.

And many comments about all of this (tweets by Trump, Ted Cruz, etc.) are about how Twitter is violating the First Amendment by its own counter-speech, treating it the same as enforced silence. Putting aside that these are private companies, this is a perverse take on free speech.

Posted by Howard Wasserman on May 29, 2020 at 10:13 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Why Retributivism Has a Time Frame Problem

Many have the intuition that those who do good deserve good things, and those who do bad deserve bad things. Retributivists take this intuition quite seriously. They argue that criminal offenders should suffer or be punished in proportion to their moral desert. It is offenders’ moral desert, they believe, that justifies the harsh treatment offenders receive. In the more pure forms of retributivism that I focus on here, moral desert is all that retributivists need to examine to assign amounts of punishment to particular offenders.

It turns out to be quite difficult, however, to decide exactly what counts in assessments of moral desert for criminal justice purposes. Even if we assume desert depends on actions (as opposed to, say, character or virtue), retributivists must decide whether to examine offenders’ desert for crimes and other misdeeds across their entire lives (the “whole life” approach) or only for what are typically recent crimes under consideration at a current sentencing proceeding (the “current crime” approach).

Neither view is acceptable. The whole life view examines all of offenders’ good and bad deeds and all of the good and bad things that have happened to them in order to impose penal treatment proportionate to moral desert. Unfortunately, we have limited evidence of offenders’ prior conduct and of the good and bad things that have happened to them since birth. Moreover, punishing those who have suffered great misfortune risks augmenting the mismatch between their well-being and what they deserve. In some cases, the whole life approach could lead to unworkable “moral madness” (Ezorsky 1972, p. xxv) in which a person has suffered so much that he could knowingly break the law and still be immune to punishment.

Continue reading "Why Retributivism Has a Time Frame Problem"

Posted by Adam Kolber on May 29, 2020 at 02:29 AM in Adam Kolber | Permalink | Comments (7)

Thursday, May 28, 2020

Thoughts on the Twitter EO (Updated to include final Order)

Thoughts on the final new EO.

1) It cites Packingham and Pruneyard to support the proposition that social media has become the "functional equivalent of a traditional public forum" and the "modern public square." But Packingham was a case about how social media is so important that government cannot prevent people from accessing it; it does not support the proposition that social-media companies are bound by the First Amendment. It studiously avoids Manhattan Community Access, which rejected the idea that opening a private space for speech (a bulletin board, open mic at a comedy club) subjected the owner to First Amendment limitations. And part of the rationale was that the Constitution does not "disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property." To the extent the EO commands the FTC to try to impose those obligations on social-media platforms (Twitter mentioned by name), it will run into that limitation.

2) The irony (perhaps intentional) is that the EO was prompted not by restricting speech, but by engaging in counter-speech--exercising its own First Amendment right to label something Trump posted as bullshit. Even if Twitter were somehow obligated to treat its platform the way government is supposed to treat the public square and not bar any protected speech, it cannot, consistent with the First Amendment, be prohibited from speaking in its own voice. So the Twitter conduct the EO aims to stop is not the Twitter conduct that precipitated the EO.

3) The EO's goal seems to be to impose the platform/publisher distinction onto  statutory language that does not create and cannot bear that distinction. Eugene Volokh explains the platform/distributor/publisher distinction and § 230 as it stands. He explains that § 230 gives social-media companies the immunity of a platform (e.g., telephone companies) even when it acts like a distributor (e.g., a bookstore or newsstand). Congress could change that, but has not. The EO attempts to impose that interpretation as executive-branch policy, but I am not sure the text can bear it. I leave to others to parse this out.

4) To relate this to Adam's various posts, the EO and the discussion around § 230 reflects the conflation of descriptive and normative arguments, of "is" and "should." The EO argues that any "editorial conduct" makes the entity a publisher and outside the protection of (c)(1) and (c)(2). But that is not what the statute, as it is written, says or means. As Eugene argues, it could have said it and it could be amended to say it. In others, maybe Twitter "should" lose immunity and the law should be written to do that; under the law as it "is," Twitter does not lose immunity.

5) It is not clear what practical effect the EO has. It seems to want the FTC and FCC to undertake regulatory activities that neither may have the power to take in an area that typically is not subject to agency action. Section 230 immunity arises when a service is sued for defamation or for an improper take-down; neither of those has anything to do with the agencies. It prohibits federal spending on misbehaving sites. It seems to want the FTC and state AGs to consider unfair/deceptive trade practice proceedings against sites for controlling content, but that would seem to run into some First Amendment problems.

6) The press is going to spend the next several days talking about the this and not the 100,000 dead Americans. So this is more shit flooding the zone.

Update: I agree with the general consensus that, while this will have no legal effect, it will make life difficult and annoying for Twitter, under the threat of the federal government (including a corrupt AG) watching them and their users. Which is the point.

Posted by Howard Wasserman on May 28, 2020 at 01:33 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Quarantine and Incarceration

Most of the attention related to incarceration and the pandemic concerns risks to inmates of catching COVID in close prison quarters without proper masks and social distancing. And the increased attention is well warranted. The pandemic, however, also raises interesting questions about the nature of punishment severity. I have used the example of quarantine over the last decade to make a point about the severity of prison. On any plausible view of severity, it should be measured as a change from one's baseline condition to one's imprisoned condition. For example, many scholars think that prison severity is measured as a deprivation of liberty. If so, the severity of prison depends on the amount of liberty one has in his baseline unpunished condition relative to the amount of liberty in his punished condition. This is how we ordinarily measure harm in other contexts. The harm someone caused to your car depends on its state after an accident relative to its baseline state.

So, counterintuitively perhaps, when everyone is quarantined by state law, the severity of incarceration goes down. Why? Because the change in one's liberties from baseline to incarceration are reduced. The same may be true of some non-liberty views of prison severity. If severity is a function of bad subjective experiences, then severity is a change from one's baseline level of happiness to one's punished level of happiness. If quarantine lowers baseline levels of happiness, state quarantine also reduces the severity of incarceration during the period of quarantine because we measure the decline in happiness from a lower baseline. Of course, if one is in a prison with a high risk of getting COVID, one may have lower happiness both in one's baseline condition and one's punished condition. So consider a very self-interested inmate who has immunity to COVID. The person's change in distress caused by imprisonment goes down because he'd be stuck in quarantine even if he were not imprisoned. (I'm ignoring some debate about whether baselines should be measured as pre-punishment levels or as counterfactual levels, but I think the point can be made either way.)

Such results are not entirely counterintuitive. Consider someone who receives a sentence of home confinement during a period of statewide quarantine. Do we really think such a person received a significant punishment if his rules of home confinement essentially match the rules of quarantine? True, there is stigma attached to home confinement that isn't attached to quarantine. But it still seems like a small potatoes punishment during quarantine. And none of this should come as a surprise to those who think about punishment in consequentialist terms. Prison becomes less of a deterrent during quarantine. Deterrence goes down a bit as the difference between non-incarcerative and incarcerative conditions decreases. At the same time, interests in incapacitating dangerous people may stay relatively constant (though this may change based on how much danger we think people would pose under conditions of quarantine).

But recognizing punishment severity as a change in conditions fits less well with retributivist views. For example, if a defendant were sentenced with an expectation that quarantine will continue and then it is unexpectedly eliminated after sentencing, the defendant will now receive a sentence considerably more severe than that which the judge intended. Yet I doubt most retributivists would care about the risk of overpunishment. Ditto for the reverse case. If a person is sentenced to prison and, while there, a quarantine is unexpectedly imposed on the civilian population, few would think that the (self-interested, immune) prisoner should now spend longer in prison to get what he deserved. I think this is because most people have a duration fetish.  For the most part, they think about prison severity in terms of the passage of time and pay relatively little heed to the severity of prison conditions or, more accurately, the severity of the change of conditions from pre- to post-punishment conditions.

Posted by Adam Kolber on May 28, 2020 at 01:27 PM in Adam Kolber | Permalink | Comments (4)

Panel on Academia Post Corona

Three day conference - free and open - with many interesting speakers like behavioral economist Dan Ariely (Duke), Gil Shwed (CEO of CheckPoint), Manuel Trachteberg (Tel Aviv Univ) and other academics and industry leaders. On the second day, June 1, I am on a panel debating Professor On Amir, Associate Dean UCSD Business School (my occasional coauthor and the father of my children) about the future of academia and learning. Register and join!

Academia Post Corona | 1:30 PM (EST)

Orly Lobel, On Amir; Moderated by Lee Levinstin

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Posted by Orly Lobel on May 28, 2020 at 12:29 PM | Permalink | Comments (0)