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Short Circuit: A Roundup of Recent Federal Court Decisions

Zestimates, Big Girl Panties, and Scabby the Rat

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

  • Suppose a La Plata, Md. public school teacher compelled a Christian student to write part of the Shahada: "There is no god but Allah and Muhammad is the messenger of Allah." First Amendment violation, right? Fourth Circuit: It was homework for a world history class. About what Muslims believe. Judgment for the school.
  • Allegation: Rumor spreads at Sterling, Va. warehouse that an employee was promoted only because of her sexual relationship with a higher-ranking manager. The highest-ranking manager at the facility helped to spread the rumor, barred her (but not her paramour) from attending a mandatory all-staff meeting where the rumor was discussed, and told her he'd no longer recommend her for promotions. She's later fired. Fourth Circuit: Because "traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society," she might very well have suffered harassment because she is a woman. The case shouldn't have been dismissed.
  • Using Sherlock Holmesian powers of deduction (unbalanced tire, worn lug nuts, nervous driver), police officer suspects drug trafficking is afoot. He touches the suspicious tire, which feels (and is) suspiciously full of meth. Fifth Circuit: And under the revived property rights theory of the Fourth Amendment, touching the tire was a search (but the driver is still going to jail).
  • Female nursing assistant at Pascagoula, Miss. assisted living facility is daily subjected to lewd and sexually violent behavior by a dementia patient. When she voices concerns to facility higher-ups, they invite her to "put [her] big girl panties on and go back to work." After she's fired, she brings Title VII suit against the facility. And her hostile work environment claim can go to trial, says Fifth Circuit.
  • Vacant-property owners in Saginaw, Mich. must register their properties with the city; the registration form states that an owner must allow the city to enter her property if it becomes dangerous. Does this system unconstitutionally require an owner to waive her Fourth Amendment rights? Sixth Circuit: Nope. The Fourth Amendment allows warrantless searches of dangerous buildings provided there's a pre-search hearing to determine whether the building is dangerous.
  • Upon returning to his Detroit, Mich. basement apartment, man finds it ransacked. Storming upstairs, shouting expletives, he encounters a stranger who shoots him three times. Yikes! Turns out it was a federally deputized member of the Detroit Fugitive Apprehension Team task force, on the hunt for a fugitive. Man sues task force members for excessive force and other alleged misdeeds. Officers: Actually, we shot him only after he pulled his own gun on us. Which, says Sixth Circuit, is precisely the kind of factual dispute that must be resolved at trial. No qualified immunity.
  • In 2013, a chaplain with the Michigan Department of Corrections tells Muslim inmate that he can't attend Eid al-Fitr, a religious feast marking the end of Ramadan. Chaplain tells inmate he's the wrong kind of Muslim and can attend the feast only if he changes his religion. Access to the feast is allegedly denied again in 2014. Inmate sues, asserting First and 14th Amendment violations. Qualified immunity? No, says Sixth Circuit—not least because a court in a different case "had already issued a binding order enjoining these defendants from preventing Muslim inmates to participate in Eid." And "reasonable officials follow court orders."
  • Pro-life sidewalk counselors are prohibited from approaching within eight feet of any person in the vicinity of Chicago abortion clinics if their purpose is to counsel, provide literature, or protest. Seventh Circuit: Well, the law is nearly identical to a Colorado law upheld by the Supreme Court in 2000, and even though that case is hard to reconcile with more recent Supreme Court cases, it has not been overturned. The law stands.
  • "Scabby the Rat has returned." Scabby—a giant balloon rodent evoking a Nutcracker nightmare—often pops up at union protests, including one in Grand Chute, Wis. in 2014. That is, until the town ordered deflation under the local sign code. Seventh Circuit: Which was OK. The sign code was content neutral and enforced fairly. (Real hypo from trial: Would Scabby count as a holiday decoration if he had a Santa hat?)
  • Drug defendant is shackled during pretrial hearings because that's what Central District of Illinois court security thinks is safest—as a blanket rule, for every detained defendant. Which means chained wrists, chained ankles, and a chain between them. The defendant, on interlocutory appeal: The judge can't do this without deciding that I, specifically, am dangerous. Seventh Circuit: Meh. Come back after you're convicted. Dissent: This indignity diminishes the courts. And how is he going to get effective review later?
  • Website Zillow uses an algorithm to generate "Zestimates" of home values based on the home's location, the selling price of nearby parcels, and other factors. Given the 100 million properties for which Zillow creates Zestimates, the company does not inspect whether houses have special features that might make them more (or less) valuable than the estimate. Plaintiffs, dissatisfied with the Zestimates on their homes, sue Zillow, claiming that the Zestimates have made it more difficult for them to sell the homes at their real value. Seventh Circuit: Zout of luck. Zestimates "are opinions, which canonically are not actionable" under the deceptive trade practices law the plaintiffs invoked.
  • Rarely do an opinion's opening sentences double as a Short Circuit entry. The Seventh Circuit shows everyone how it's done: "Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence? We hold that the answer is no."
  • DHS Secretary suspends various laws to permit replacement of segments of border fencing (or, y'know, whatever you prefer to call such physical barriers). Ninth Circuit: Which was entirely within the Secretary's statutory authority.
  • Golden Beach, Fla. police officers submit sketchy timesheets: They might be getting paid twice for the same hours. They're arrested for fraud, but eventually the charges are dropped. They sue. Was the application for the warrant to arrest them deliberately missing exculpatory info? Eleventh Circuit: Doesn't matter. The info wasn't that exculpatory.
  • Two African-American couples were murdered in Walton County, Ga. in 1946, as a large crowd of people looked on in what is considered to be the last mass lynching in American history. A grand jury was convened, but no one was ever charged even after 16 days of witness testimony. Seven decades later, can the transcripts be released to a historian? Eleventh Circuit: Yes; though grand jury records are usually kept under seal forever, these can be released as a matter of exceptional historical significance. Dissent: The rules clearly prohibit the disclosure of these materials. Imagine the harm that might come to descendants of the suspects, witnesses, and grand jury members when all is revealed.
  • And in en banc news, the Ninth Circuit will reconsider a ruling that the Second Amendment prevents Hawaii County, Hawaii from banning the open carry of handguns.

Last month, the Food and Drug Administration closed a public comment period over whether it should continue to allow plant-based products to use words like "milk" and "cheese" in their labeling. But such a crackdown would "confuse consumers, harm small businesses across the country, and raise serious First Amendment concerns," IJ argued in a submitted comment.

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The Dangers of Government by Executive

The more a president governs unilaterally, the greater the stakes of every election, and that's a bad thing.

There are lots of things one could say about Trump's invocation of an emergency statute to "build the wall." Other commentators, including Ilya, have said most of them, so I'll refrain, but in short it's a terrible idea, and I hope the courts stop it.

I did want to add one additional consideration that goes beyond the issue of the wall and goes to the general issue of presidents acting unilaterally on significant, controversial issues, regardless of whether they have the technical legal authority under broad, vague, statutes.

During the Obama administration, defenders of presidential unilateralism argued vociferously that (a) the president was elected to get things accomplished; (b) Congress, via Republican majorities in the House, and later the House and Senate, was being obstructionist; and (c) therefore, the president was within his rights to use his full authority to govern unilaterally, even in the face of longstanding contrary norms. For example, Obama, like Trump, was stymied by Congress on his preferred immigration policy, so he used his broad statutory authority under the immigration laws to resolve the "Dreamer" issue indefinitely, using that authority far more broadly, more consequentially, and in more direct defiance of Congress than any president had previously.

As a constitutional matter, I think this argument and analogous arguments made (less coherently) by Trump administration defenders have things backwards. Congress and not the president is given the legislative power, so outside of certain military and foreign affairs matters it's Congress, not the president, that is elected to get things accomplished. So in any showdown between the president and Congress, if one party can be deemed obstructionist it's presumptively the president.

But my objections to presidential unilateralism go beyond the constitutional. In my view, historically one of the great advantages of living in the United States is that most people did not care about national politics nearly as much as in other countries. This had the advantages of not wasting people's time thinking about politics, allowing people of differing ideologies to get along, and just in general making life more pleasant by limiting the practical importance of elections.

Of course, a major reason people did not care about national politics that much, even if they had strong feelings about particular issues, is that the national government historically had relatively limited powers. But another reason, one that transcended the scope of federal power, was that it our Constitution makes radical change, or really any significant change, very difficult. You need to get a piece of legislation through each house of Congress (each of which has various internal rules that make it hard to do so) and then get the president to agree.

This obviously has its downsides, as it creates a huge status quo bias, and the status quo is often far from ideal. On the other hand, voters could be assured that whomever got elected, Republican or Democrat, major changes were unlikely. This was especially true because until recently, the parties were divided more on geography and the cultural background of their voters than on ideology.

Over the last forty years or so, however, the parties have become strongly divided ideologically, which by itself raises the stakes of national elections; electing a Republican will bring into government a very different group ideologically than electing a Democrat. Moreover, delegation of authority by Congress to agencies gives the president a fair amount of discretion to change policy through his appointments of executive officials.

Nevertheless, the stakes remain relatively limited so long as the president adheres to traditional norms and refrains from major policy innovations without going through Congress. Once the president instead chooses to in effect "legislate" on important matters unilaterally, the stakes get raised substantially, and the U.S. becomes more like parliamentary systems where every election seems like life or death to partisans, inevitably increasing societal tension over ideological and other differences.

So, constitutional structure aside, why is presidential unilateralism bad? Because our system was designed to make major shifts in government policy difficult, and that's a good thing because it lowers the stakes of politics. We had experience in 1861 with what happens when a significant part of the country believes that the national government has become arrayed against it, and it's not an experience we should want to repeat on any scale.

Libertarianism vs. Utilitarianism in Encouragement of Suicide

Guyora Binder and Luis Chiesa break it down, and some quibbles.

Following up on my post about the case of Michelle Carter who texted her boyfriend to kill himself, my colleague Brenner Fissell pointed me to to a new article by Guyora Binder and Luis Chiesa that deals with the issue of encouragement of suicide. In "The Puzzle of Inciting Suicide", they view the question of criminal liability in such situations as demonstrating a conflict between libertarian and utilitarian intuitions. Under a libertarian understanding, suicide is generally seen as an autonomous act whose encouragement should not be criminalized. Under utilitarianism, however, "inciting suicide seems well worthy of criminalization" because "[s]uicide is a serious public health problem."

They view the trial court decision in Commonwealth v. Carter as struggling with that tension and splitting the difference between not finding any liability (as per libertarianism) and finding Carter guilty of murder (under a utilitarian foreseeability theory) by declaring her guilty of involuntary manslaughter. Their account strikes me as plausible overall, and I recommend their article for its excellent overview of the history and case law in this area. Having recognized their significant contribution, I would like to point out two quibbles.

First, I am not sure I agree with their conclusion that the trial court

embraced the utilitarian foreseeability standard that now prevails in most American jurisdictions. In doing so, it rejected the more libertarian standard of causation that imposes responsibility for results of a wrongful act not followed by intervening voluntary action.

The trial court, as quoted by the Massachusetts Supreme Judicial Court, emphasized that the victim "breaks that chain of self-causation by exiting the vehicle". The SJC (whose opinion I understand was not out yet at the time of the publication of Binder and Chiesa's article) interpreted the trial court as follows:

[The trial court judge's] finding of causation in this context, at that precise moment in time, includes the concept of coercion, in the sense of overpowering the victim's will.

This actually strikes me as an attempt on the part of the trial court to explain the guilty finding in terms that Binder and Chiesa would deem libertarian rather than utilitarian as such. Indeed, an important part of my criticism of the trial court's conviction and SJC's upholding thereof is based on my questioning whether there truly was no intervening voluntary action on the part of the victim.

The SJC seems almost completely focused on causation rather than foreseeability, but causation played an important role for the trial court as well. These decisions suggest that the courts wanted to convince those with a more libertarian conception of suicide as well (despite my belief that this did not succeed in the end). Perhaps Binder and Chiesa will elucidate their understanding of the case further now that the SJC decision is out.

Second, I query whether the all-or-nothing hypothesis, whereby we must let Carter go free vs. convict her of a serious criminal offense, is quite so binary in reality. There are several tools both inside and outside the law at our disposal to punish Carter, potentially provide some recovery for the victim's family, and express societal disapproval of her conduct.

For one, this is the kind of scenario that may call for a tort remedy. For another, the story of this encouraged suicide will likely follow Carter on the Internet until the end of her days, creating negative repercussions for her professional and personal life. It therefore hardly seems the case that if the criminal law did not intervene here (as I suggested it indeed should not have), she would get away scot-free. I would have liked to see more discussion of these themes in Binder and Chiesa's otherwise excellent work.

The Perils of Trying to Use Emergency Powers to Build Trump's Wall

A summary of the reasons why Trump lacks the power to use emergency powers to build his border wall, and why it would cause great harm and set a dangerous precedent if he did. Other than that, it's a great idea!

Creative Commons/Tony Webster.Creative Commons/Tony Webster.

News reports indicate that President Trump intends to try to use emergency powers to appropriate money and seize property for his border wall, because Congress was unwilling to give him more than a small fraction of the funds he wanted. In several previous op eds and blog posts, I explained why he lacks the legal authority to do that, and why it would set a dangerous precedent if he managed to get away with it.

In a January op ed in USA Today, I discussed the relevant legal issues, and the potential for setting a dangerous precedent:

Poorly drafted laws give the president a wide range of easily abused emergency powers. Even if he can declare a "national emergency," however, that does not mean he can use it to pay for and build a wall....

Some point to 10 U.S.C. 2808 and 33 U.S.C. 2293 as possible justifications. But Section 2808 states that, during a "national emergency" that "requires the use of the armed forces," the president can reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." No threat posed by undocumented immigration "requires the use of the armed forces," and it is hard to see why a wall is "necessary to support such use."

In fact, as Yale Law School professor Bruce Ackerman explains, longstanding laws bar the use of troops for domestic law enforcement (including enforcing immigration law).

Section 2293 also only applies to a war or emergency that "requires or may require use of the armed forces." Another federal law allows the military to condemn property for various purposes, such as "fortifications." But that only extends to projects for which funding has been appropriated by Congress....

Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress.

Building Trump's wall requires using eminent domain on a massive scale. A third of the needed land is owned by the federal government. The rest would have to be taken from private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily.

The result would be one of the largest federal condemnations in modern U.S. history....

If Trump succeeds in using emergency powers to build the wall and seize property through eminent domain, future presidents could exploit this dangerous precedent. They, too, could declare a "national emergency," and then divert military funds and take private property without congressional authorization.

Republicans who cheer Trump now will regret it if the next Democratic president uses the same powers to declare that climate change is a "national emergency" and then allocate funds and take land for the gigantic "Green New Deal" program many progressives advocate. Climate change is a more plausible menace to national security than undocumented immigration.

If Trump succeeds, presidents could use the same ploy almost any time they want funds or seek to condemn private property for purposes Congress has not authorized, so long as there is some vague security pretext.

While Trump deserves to lose in litigation over the legality of building the wall by using emergency powers, the outcome of such litigation is somewhat uncertain. Administration lawyers may have come up with creative legal arguments that outside observers have not foreseen. In addition, courts all too often give presidents undue deference on security and immigration issues.

I am far from the only observer to warn against the dangers of using emergency powers in this way. Nor is concern about the risk limited to those (like myself) who oppose the wall on grounds of morality and policy. A number of principled conservatives who are far more supportive of the wall than I am nonetheless warn against the dangerous precedent that would be created if Trump succeeds in using emergency powers here. I discuss their views here.

If Trump's emergency power strategy succeeds, it would also threaten the property rights of hundreds or even thousands of people who own property near the border. Many are likely to have their land seized by the federal government through the use of the power of eminent domain. I discuss the harm likely to be caused by that in this Washington Post op ed, written last month:

Trump cannot acquire the land he needs without forcibly displacing large numbers of property owners by using eminent domain. That inevitably threatens the property rights of hundreds, perhaps thousands, of Americans.

Less than one-third of the needed land is currently owned by the federal government. The rest — as much as 1,300 miles — is held by private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily. Even if the wall does not cover the full 2,000 miles because it excludes some areas, such as those that have "natural" barriers, many property owners will have to be displaced. There is no way to build an extensive continuous wall without that....

To get that land, the government would have to resort to eminent domain: a power that allows the state to seize property from unwilling owners. The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are some 4,900 parcels of privately owned land within 500 feet of the probable route of the wall....

Under Supreme Court precedent, owners of condemned property are entitled to "fair market value" compensation: roughly, the price the land would go for if sold on the open market. But studies show that owners often don't get the compensation that the law requires. That is particularly true of those who are poor or lack legal sophistication. Government officials often shortchange such people by using pressure tactics to get them to sell at below-market prices.

Such abuses were common in takings for previous, much smaller border barriers....

Even when owners do secure market-value compensation, that often fails to fully offset their losses. Many understandably value their property above its market value. Often, that's why they hold on to it in the first place. Consider, for example, longtime homeowners or businesspeople who have developed close ties with customers and neighbors in a community. Those losses remain largely uncompensated....

I will likely have more to say about Trump's effort to use an emergency declaration to build the wall as we learn more about his exact plans. The issue will almost certainly wind up in court, and could well result in a prolonged legal battle.

Another "Stop Talking About Him" Order -- Apparently Covering Even Republishing Police Report

"Defendant shall not post on the internet ... any information whatsoever regarding William Siegle."

Larry Martin and Michael Snapp think their neighbor, William Siegle, had mistreated them. They say, for instance, that he threw rocks at their home, and damaged their window; they claim to have a video from another neighbor showing this. They say they contacted the police about this, and the police arrested plaintiff for criminal mischief; that case appears to be pending.

They wrote about this, and other things, on a web site criticizing Siegle (who is a local real estate agent), available under and; among other things, they included a copy of the police incident report. (All this is drawn from a motion they filed in court.)

Siegle sued them, for defamation and for interference with business relations; and he got Judge John E. Harrington to issue an injunction banning not just false and defamatory statements by defendants about him, but all online statements:

[T]he Defendants shall immediately ...

[a.] Delete and/or shut down the websites known as and;

[b.] Immediately delete and shut down any and all additional websites created by them or at their direction that disclose information related to William Siegle;

[c.] Immediately delete any and all information posted by Defendant regarding William Siegle on any internet site as well as any and all social media outlets;

[d.] Defendants shall not create or cause to be created any additional websites related to William Siegle;

[e.] Defendant shall not post on the internet as well as any other social media outlets any information whatsoever regarding William Siegle;

[f.] Defendants shall not use or continue to use automated or "robo" calls/text messages to disseminate the existence of the aforementioned websites ....

This injunction covers true statements and opinions, and not just false statements; indeed, Siegle's papers responding to the defendants' motion don't deny that Siegle threw the rocks or was cited by the police. And the injunction has no exception for reposting of public record government documents, such as the police incident report.

This can't be right; as defendants argue in their motion,

Defendants' right to publish factually accurate information about the manner within which Plaintiff attacked their home is undeniably protected by the First Amendment. Although Defendants may have no Constitutional right to publish information that is clearly false, Plaintiff has been unable to establish that any statement contained in the website was defamatory, libellous, incorrect, or even inaccurate.... Every single fact published on the website attached as Exhibit "A" to Plaintiff's filing involved either information within the public sphere or occurrences where the Defendants were direct participants with personal knowledge of the events....

Nor can the ban on true statements be justified on the theory that they interfere with Siegle's business relations.There is a libel exception to the First Amendment, for certain kinds of false and defamatory factual statements. But there is no interference-with-business-relations exception that would cover true statements and opinions. (See NAACP v. Claiborne Hardware (1982).)


Washington State Voters Should Take Notice of This

A new, misleading voter initiative seeks to repeal I-200, which banned state-sponsored discrimination or preferential treatment based on race, sex, etc.

In 1998, Washington voters adopted Initiative 200 (or "I-200") by a wide margin (58%-42%). Its operative clause states, "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting."

Like California's Proposition 209 on which it was based, I-200 is sometimes honored only its breach. But it has been reasonably effective in the area of public contracting in particular.

Now comes the effort to repeal it. Last week the Washington Secretary of State has certified for the ballot an initiative ("Initiative 1000" or "I-1000") that, if passed, will bring back race- and sex-preferences in public education, public employment, and public contracting. But it does so in a sneaky way. It retains the operative clause. It even expands it:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin, age, sexual orientation, the presence of any sensory, mental, or physical disability, or honorably discharged veteran or military status in the operation of public employment, public education, or public contracting.

But it then defines "preferential treatment" this way:

"Preferential treatment" means the act of using race, sex, color, ethnicity, national origin, age, sexual orientation, the presence of any sensory, mental, or physical disability, and honorably discharged veteran or military status as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate for a public education, public employment, or public contracting opportunity.

Nobody has ever used race, sex, color, ethnicity or national origin, as "the sole qualifying factor" for anything. The point of I-200 is that the listed factors shouldn't be a factor at all. It leaves the state to determine what qualities it wishes to seek, stating only that race, sex, color, ethnicity and national origin shouldn't be among them. A state that wishes to give preferential treatment to small businesses or start-ups or to low-income or first-generation university applicants can certainly do so.

Another section of the new proposal makes it clear that the original I-200 will be eviscerated:

Nothing in this section prohibits the state from implementing affirmative action laws, regulations, policies, or procedures such as participation goals or outreach efforts that do not utilize quotas and that do not constitute preferential treatment as defined in this section.

If somebody in Washington State wants to give Washington voters the opportunity to repeal I-200, they should be clear and upfront about it.

Forged Purported N.J. Attorney General Takedown Demand, in 3-D Printed Gun Case

Mike Masnick (Techdirt) reports:

[A] week or so ago ... various 2nd Amendment groups, including the somewhat infamous Defense Distributed (makers of 3D printer files for firearm components) filed a lawsuit, seeking an injunction against New Jersey's Attorney General, Gurbir Grewal, arguing that he had sent an unconstitutional takedown letter to Cloudflare, which was the CDN service that Defense Distributed was using for its website

In theory, this was setting up an important potential 1st Amendment case. But, on Tuesday, something unexpected happened. The State of New Jersey showed up in court to say no one there actually sent the takedown -- and that they believed it was forged, and sent via a proxy service in the Slovak Republic. Really.

Here's an excerpt from the letter:

The Attorney General's Division of Criminal Justice (DCJ) has concluded that a key document supporting Plaintiff's TRO application—a "takedown notice" purportedly sent by DCJ to CloudFlare, Inc., which hosts one of the plaintiff's websites,—was not in fact issued by DCJ, and appears to have been issued by some entity impersonating the Attorney General's Office. We are including a certification that details our office's investigation so far. In addition, we have referred the matter to the U.S. Attorney's Office for the District of New Jersey....

In an effort to determine who, in fact, issued the notice, DCJ assigned two investigators to review the matter, who obtained the IP address of the device used to submit the notice to Cloudflare, and learned that the IP address is associated with a server located in the Slovak Republic. This IP address is not connected to DCJ, nor would DCJ use this type of proxy server for routine communications with third parties....

Mike Masnick adds, more generally:

There are, of course, some larger issues here. As we've noted for years and years and years -- mainly with regard to the DMCA notice-and-takedown process -- when you have a process that allows for notice and takedown it will get abused. Widely and continuously. Expanding notice and takedown to other arenas only means it will get abused more and more, and the abuse will become increasingly sophisticated.

We should be especially concerned about things like the EU's Terrorist Content Regulation, which will not only deputize random law enforcement officials to send such takedowns to various platforms, but also mandate that platforms takedown any such content within one hour of the notice being sent. If you don't believe that process won't be abused in a similar manner to what we see above, you have not been paying attention. Giving people tools for censorship will lead to censorship, and often it will be done in very surreptitious ways.

We should be extra careful about enabling more such activity under the false belief that only the "good guys" will use such powers, and that they will only use them for good.

Cloudflare has more.

Calabresi & Lawson: "Why Robert Mueller’s Appointment As Special Counsel Was Unlawful"

Calabresi and Lawson's new manuscript arguing that the Special Counsel is unlawful.

Steve Calabresi and Gary Lawson have a new manuscript on SSRN, expanding on their earlier arguments that Robert Mueller's appointment and investigation is unlawful for two reasons. First, Mueller has not been confirmed by the Senate and, second, Congress has not delegated to the Attorney General the power to create inferior offices or to appoint people to those offices.

Here is the abstract:


Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice ("DOJ") has had in place regulations providing for the appointment of Special Counsels who possess "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney." Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be "established by Law," and there is no statute authorizing such an office in the DOJ. We conduct what we think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and lower courts for the appointment of Special Counsels over the past two decades do not – and even obviously do not – authorize the creation and appointment of Special Counsels at the level of United States Attorneys. They authorize the creation and appointment of Special Counsels to "assist" United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels, but they do not remotely authorize the creation of the kind of Special Counsels represented by Robert Mueller who replace rather than assist United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the independent counsel's appointment.

Second, even if one chooses to overlook the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute – and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.

Third, the Special Counsel is, in all events, a superior rather than inferior officer and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is obviously true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official is an "inferior" officer. Such a reading leads to the ludicrous result that there is only one non-inferior officer in every federal department, which is a good reason not to read them that way.

There are surely times when Special Counsels are appropriate. Both statutes and the Constitution provide ample means for such appointments through the use of existing United States Attorneys with unimpeachable credentials and reputations for standing above politics. Any number of United States Attorneys have performed these functions with distinction. Statutes and the Constitution do not, however, permit the Attorney General to appoint a private citizen as a substitute United States Attorney under the title "Special Counsel." That is what happened on May 17, 2017. That appointment was unlawful, as are all of the legal actions that have flowed from it.

A Brief Note on the Recent Neomi Rao Controversy

As VC readers are aware, D.C. Circuit nominee Neomi Rao has been the subject of contoversy for op-eds she wrote twenty-five or so years ago while in college. I'm generally in favor of an informal statute of limitations on such things, and I've said so publicly even in situations where (a) the underlying behavior was far more outrageous and (b) I have no particular love for the individual involved. For example, when the Ralph Northam controversy broke, I tweeted, "Unpopular Opinion? Don't judge people by stupid, offensive things they did 30 plus years ago, unless such behavior has continued."

Also, as someone who wrote conservative columns for the school newspaper on my own very liberal college campus, I am especially alert to the temptation to express one's views a bit more sharply than one might otherwise, or even to sometimes express views for the sake of Devil's advocacy, in (perhaps immature) reaction to the stifling political correctness one faces. Nor, of course, does one write such articles thinking that twenty-five years later interest groups will be pouring over them looking for any indelicate language that can be taken out of context and used against you, and in fact in my case I usually dashed off my opinion pieces in twenty minutes or so when I felt the inspiration. I'm guessing if I read those pieces now, like Rao I'd occasionally cringe at how I expressed myself.

All that said, critics have often tendentiously described the content of Rao's writings, primarily by taking a infelicitous sentence or two out of context. For example, an article that has been described as anti-gay actually argues that the mainstream, left-wing gay group on campus should not ostracize a group of conservative gay students that had recently formed. Arguing for tolerance of conservative gay students by other gay students isn't the sort of thing that can reasonably be construed as "anti-gay."

Similarly, her article on a date rape allegation at Yale has been unfairly described as blaming women for date rape. Neomi has apologized for "insensitivity" in how she addressed the issue, but she didn't blame women for date rape; the "worst" thing she wrote was an offhand sentence noting that staying reasonably sober is a good way to reduce the risk of being assaulted. But blame? She stated in the beginning of the article that a male student who assaults a woman "should be held responsible" and later reiterated "that a man who rapes a drunk girl should be prosecuted."

NOTE: Neomi Rao is both a faculty colleague and a friend.

Dark Law: Published Michigan Precedents on Protection Orders Missing from Westlaw

Three cases, including the two leading Michigan precedents on the First Amendment and restraining orders, are invisible to lawyers who rely on Westlaw. Lexis is also missing two of the three, but it’s changing its policies to include them. And a federal statute is behind this.

Patterson v. Beverwyk (2017), Buchanan v. Crisler (2018), and TM v. MZ (2018) are precedential decisions of the Michigan Court of Appeals. The first two are already in the Michigan Appellate Reports advance sheets; the third will presumably be there soon (it was only decided in October). Patterson sets an important precedent about whether businesses can get personal protection orders (known in Michigan as PPOs). Buchanan and TM set important precedents about First Amendment limits on protection orders that purport to limit unwanted public speech about the plaintiff.

But all three are missing from Westlaw. This means that, as a practical matter, those cases are likely invisible to those lawyers who rely on Westlaw rather than the print reporters. Judges and litigants as well as lawyers are unlikely to benefit from the existence of those precedents. And I suspect that judges who wrote the precedents thought they were making law that would be found by other appellate judges, by trial court judges, and by lawyers—but the effect of the precedents is now sharply limited. Indeed, perhaps this is why TM, though dealing with much the same topic as Buchanan, doesn't cite it.

Why does this happen? It's a complicated story, that starts with an overbroad and possibly unconstitutional federal statute, moves on to an overcautious state policy, and then to what strikes me as a misguided decision by Westlaw.

[1.] In 2006, Congress mandated (in 18 U.S.C. § 2265(d)(3)) that states may not "make available publicly on the Internet any information regarding the registration, filing of a petition for, or issuance of a protection order ... if such publication would be likely to publicly reveal the identity or location of the party protected under such order." (Any information like this is supposed to be kept "in secure, governmental registries for protection order enforcement purposes.")

The impulse behind this, I take it, is

  1. to protect the beneficiaries of the protection orders from the people against whom they got these orders (that's the "or location" part of the rule), and
  2. perhaps to protect the beneficiaries' privacy in some cases where the orders arise from sexual abuse or similar behavior.

But the statute extends even to information that the restrained party already knows, such as the protected person's identity, and even in cases involving circumstances that are no more private than those present in many publicly accessible criminal or civil cases. Moreover, the law is a content-based restriction on states' speech, which might mean that it violates the First Amendment, depending on whether states have First Amendment protections from the federal government (a matter that is surprisingly unsettled).

[2.] Some states have concluded (plausibly, given the text) that this statute bars Internet posting of appellate court opinions, including the use of parties' names in those opinions. Several states therefore have a policy of using pseudonyms or initials to refer to any protected parties in court opinions; Massachusetts, for instance, is one example, and indeed Michigan sometimes does this as well.

Many other states, as best I can tell, just barrel on without any regard to this statute, at least when it comes to their appellate opinions; California is an example of that.

But the Michigan Court of Appeals goes the furthest of all: It completely declines to post on its standard opinion release pages any opinions in which someone had gotten a protective order—though of course, it still publishes such opinions in print, since they are precedents. (Some of these opinions are available on the Michigan government site, but not in the usual location, and I suspect only by accident.)

[3.] Now the last puzzle piece: Westlaw and Lexis. They of course are not bound by 18 U.S.C. § 2265(d)(3), since they aren't state governments. And their job, it seems to me, is to distribute at least all the binding precedents, since those are law that lawyers need to see.

To be sure, for nonbinding decisions, they may choose not to post certain orders that courts themselves decide not to post (for instance, certain Colorado Court of Appeals unpublished opinions, as I learned recently). Likewise, they may go along with court decisions to retroactively seal certain opinions, on the theory that if the court wants an opinion sealed, they ought to accommodate the court's preference.

But here the Michigan courts want these decisions to be published, as binding precedent. They are labeled "for publication." They are printed in the Michigan Appellate Reports (which are, as it happens, published by the same company that owns Westlaw). Michigan courts expect them to be findable by Michigan lawyers; they just read 18 U.S.C. § 2265(d)(3) as barring the Michigan government from itself posting them online. And many lawyers rely on Westlaw and Lexis, precisely because of the usual completeness of their collections, rather than separately searching (and separately subscribing to) the Michigan Appellate Reports.

Westlaw's explanation, then, doesn't really work. They told me in an e-mail,

Our policy at Thomson Reuters is to align with the policy of the courts. We include on Westlaw those opinions that are published by the court on its website. If the court does not post selected opinions due to privacy statutes or court rules, we adopt that same approach and do not publish the opinions on Westlaw.

Regarding your question about opinions in restraining order cases, the relevant court rule that guides the approach on dissemination of the opinions is Michigan Court Rules, Rule 3.705 (MIRSPECPMCR3.705). Specifically, Subrule 3.705 (C) provides: "(C) Pursuant to 18 U.S.C. 2265(d)(3), a court is prohibited from making available to the public on the Internet any information regarding the registration of, filing of a petition for, or issuance of an order under this rule if such publication would be likely to publicly reveal the identity or location of the party protected under the order."

I like Westlaw a lot, and have generally gotten excellent service from them; but here I think they are mistaken. The policy of the Michigan courts cannot be, in 2019, to keep their precedent off the online research services on which lawyers rely. When Michigan courts choose to make certain opinions precedential, and to print them in case reporters, it makes no sense for Westlaw to exclude them from its online collection.

Lexis's response about the two cases that it's missing (Buchanan and TM) strikes me as much more sound:

Our content acquisition team investigated these issues today and determined that these documents were not collected initially due to notices that came up on the court's website that indicated the opinions (and associated data) in these cases were not available online per Michigan Court Rules.... Previous court contacts confirmed the documents had been "suppressed," and were not available. However, one of our editors contacted the court today and the court confirmed that while the documents are not available via the website, they were published and available from the court via written request. We are adjusting our process to account for the court's policy regarding suppressed opinions.... We are working with the court to quickly identify any additional documents that may have been excluded on this basis and will add them online, as appropriate.

[* * *]

In any event, though, whether you think Westlaw is right on this, one thing is clear: Michigan lawyers and judges should know about this policy. My impressionistic reaction from chatting with a few Michigan lawyers is that this policy is not widely known, so I thought I'd note it.

And more broadly, this situation shows how privacy-based speech restrictions can have unexpected indirect effects. (For more examples, see here and here.) In this instance, I think that Michigan courts and Westlaw could and should have avoided those effects; but still it seems to have been the federal statute that got the ball rolling, even if others could have stopped the ball.

Westlaw tells me they're unaware of any other states in which recent precedents are similarly invisible, though if you are aware of some, please let me know.

Disclosure: I filed an amicus brief and argued on behalf of amici in TM v. MZ; indeed, I learned about the subject matter of this post because someone who saw the TM opinion sent my invaluable pro bono local counsel Michael F. Smith a copy of a brief in a related case, which cited Buchanan. I was surprised that I hadn't seen Buchanan in my research—and then figured out that I hadn't seen it because it was missing from Westlaw.

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Los Angeles Demanding That City Contractors Disclose Ties to the NRA

But the new ordinance violates the First Amendment, because it tends to deter (and deliberately so) association with an advocacy group.

The ordinance, enacted yesterday, states:

Each [contract] Awarding Authority shall require that a Person fully disclose prior to entering into a Contract, all of its and its Subsidiaries' contracts with or Sponsorships of the NRA.

The disclosure required under this section shall continue throughout the term of the Contract, thereby obligating a Person to update its disclosure each time the Person or its Subsidiary contracts with or enters into a Sponsorship with the NRA.

And it makes clear that it is motivated by the NRA's political advocacy, as you can see from the recitals at the start of the ordinance (e.g., "the NRA leadership, with the financial support of its dues paying members, continues to lobby against gun safety regulations").

But the Supreme Court has made clear that the First Amendment generally bans (see O'Hare Truck Service, Inc. v. City of Northlake (1997)) the government from "retaliat[ing] against a contractor, or a regular provider of services, for the exercise of rights of political association"—precisely what the ordinance implicitly threatens.

And the Court has also made clear that compulsory disclosures of political association is also presumptively unconstitutional, precisely because they deter such association, see Shelton v. Tucker (1960), a case requiring such disclosures of schoolteachers:

Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy. Public exposure, bringing with it the possibility of public pressures upon school boards to discharge teachers who belong to unpopular or minority organizations, would simply operate to widen and aggravate the impairment of constitutional liberty.

That case involved government employees, but the logic of O'Hare, which applied government employee First Amendment precedents to government contractors, makes clear that it applies to government contractors, too.

So the ordinance violates the First Amendment just because of its disclosure requirement alone. And it also invites First Amendment discrimination lawsuits by individual contractors who are denied contracts after they disclose that they deal with the NRA, just as an employer's asking applicants to disclose their religion would invite religious discrimination lawsuits by applicants who aren't hired (and even in the absence of specific regulations barring such question).

Naturally, the same would be true if a city asked companies whether they do business with or sponsor the NAACP, the ACLU, or any other group because of the group's political advocacy. But note that this principle applies only when the disfavored groups are selected because of what they say or what laws they support; the analysis would be different if an ordinance focuses on nonspeech actions. Asking companies where they have any contracts for building a border wall, for instance, would not violate the First Amendment, because such building isn't protected by the First Amendment. (Some such queries might in some situations violate other rules, such as those related to federal preemption, but that's a separate matter.)

Zestimates, Estimates, and Opinions

Zillow has no obligation to take down (or revise) property value estimates to which the property owners object.

From last week's Seventh Circuit decision in Patel v. Zillow—an interesting case that I was fortunate enough to consult on (on Zillow's side)—the facts:

A Zestimate is an estimated value for real estate, available on the Zillow web site for about 100 million parcels. Zillow generates Zestimates by applying a proprietary algorithm to public data, such as a building's location, tax assessment, number of rooms, and the recent selling prices for nearby parcels. But because Zillow does not inspect the building, it cannot adjust for the fact that any given parcel may be more attractive and better maintained, raising its likely selling price, or the reverse. Zillow states that its median error (comparing a Zestimate with a later transaction price) is less than 6%, though the Zestimate is off by more than 20% in about 15% of all sales. Zillow informs users that none of the parcels has been inspected and that Zestimates may be inaccurate, though Zillow touts them as useful starting points.

Plaintiffs filed this suit after learning that the Zestimates for their parcels were below the amounts they hoped to realize. For example, Vipul Patel listed his home with an asking price of $1.495 million and contends that the Zestimate of $1,333,350 scared away potential buyers. Plaintiffs asked Zillow either to increase the Zestimates for their parcels or remove them from the database. When it declined to take either step, they filed this suit, under the diversity jurisdiction, invoking [among other things] the Illinois Uniform Deceptive Trade Practices Act, which forbids unfair or misleading trade practices....

The court rejected the deceptive trade practices claim, in an analysis related to the Illinois statute, but one that is parallel to the approach used in libel cases under the common law and under the First Amendment:

[T]he statute deals with statements of fact, while Zestimates are opinions, which canonically are not actionable. Plaintiffs want us to brush this rule aside because, they say, Zillow refuses to alter or remove Zestimates on request. This does not make a Zestimate less an opinion, however....

That Zillow sells ads to real estate brokers [also] does not affect the statutory analysis. Having labeled Zestimates as estimates (something built into the word "Zestimate"), Zillow is outside the scope of the trade practices act. Almost all web sites, like almost all newspapers and magazines, try to finance their operations by selling ads. That they do so without telling customers exactly what pitches are being made to potential advertisers does not convert a declared estimate into an inaccurate statement of fact....

And the court also noted (perhaps because the author of the opinion, Judge Frank Easterbrook, is a noted law and economics scholar):

[P]laintiffs are mistaken to think that the accuracy of an algorithmic appraisal system can be improved by changing or removing particular estimates.

Suppose plaintiffs are right to think that the Zestimates for their properties are too low. Removing them from the database would skew the distribution, because all mistakes that favored property owners would remain, not offset by errors in the other direction. Potential buyers would be made worse off.

Suppose instead that plaintiffs are wrong—that they have overestimated the value of their properties, while the Zestimates are closer to the truth. Then removing them from the database would not just skew the distribution but also increase the average error of estimates. Potential buyers of plaintiffs' properties would be deprived of valuable knowledge.

Finally, suppose that plaintiffs are behaving strategically—that they know the Zestimates to be accurate (or at least closer to the likely sales price than are plaintiffs' asking prices). Then removing their parcels from the database, or "correcting" the Zestimates to match plaintiffs' asking prices, would degrade the accuracy of the database as a whole without any offsetting benefits to the real-estate market. In general, the accuracy of algorithmic estimates cannot be improved by plucking some numbers out of the distribution or "improving" others in ways that depart from the algorithm's output. The process is more accurate, overall, when errors are not biased to favor sellers or buyers.

A Stark Choice for an Arizona Supreme Court Vacancy

Governor Ducey should choose Appellate Judge Jennifer Perkins

Arizona Governor Doug Ducey has made some superb appointments to the Arizona Supreme Court, as well as to the Courts of Appeals. Two great picks with whom I am familiar are Justices Clint Bolick and John Lopez. Now he has the opportunity to fill another position with another outstanding choice in Judge Jennifer Perkins, who he appointed to the Arizona Court of Appeals. I have known Judge Perkins since she was a young staff attorney at the Institute for Justice in Arizona--when her maiden name was Barnett (no relation)--and think she would be an outstanding addition to the Court.

In contrast, another candidate being touted for the office is the County Attorney of Maricopa County, who has been responsible for defending what Sheriff Joe did when he was in office. He is also a huge drug warrior. As this column reports, rather than faithfully execute the law, he "led the attempts to render [the Arizona Medical Marijuana Act] ineffective, arguing that Maricopa County could refuse to issue zoning documents." According to this account, when a Vietnam vet publicly contradicted his stance on marijuana by relating how he uses marijuana for his chronic pain, he is quoted as replying: "I have no respect for you. And I have no respect for someone who would try to claim that you served this country and took an oath to uphold the constitution and defend it against all enemies foreign and domestic, because you're an enemy." When asked about this by reporters afterwards, he referred to the vet "an enemy of our constitution." This is a rather strange invocation of the Constitution for a future justice. And such stridency about drug policy often leads judges to be bad on Fourth Amendment oversight of law enforcement.

Still, I wouldn't be writing this if Governor Ducey did not have a much better choice at hand. I hope he continues his winning streak by elevating Judge Perkins to fill this important vacancy.

Telling People to Kill Themselves

The Michelle Carter case and the complex relationship between causation and mental health.

The news came down this month that the Massachusetts Supreme Judicial Court has affirmed the involuntary manslaughter conviction of Michelle Carter, the woman who at age 17 in 2014 encouraged her 18-year-old boyfriend Conrad Roy III to commit suicide. The full decision is here. Robby Soave at Reason and others have raised free speech concerns, and Eugene Volokh has commented previously on how unusual it is to see individuals encourage others to kill themselves.

Carter's actions are shocking to most: she seemingly helped Roy via texting to plan his suicide through carbon monoxide inhalation in his pickup truck, convinced him through texts to get back in the truck when he interrupted his attempt at one point, and then listened over the phone as he suffocated to death. One might wonder, with significant others like that, who needs enemies. That said, did Carter deserve her (15-month) jail sentence?

The case raises many questions, but one of them concerns the issue of causation in the context of manslaughter. Massachusetts in relevant part defines involuntary manslaughter as "[a]n unlawful killing that was unintentionally caused as the result of the defendants' wanton or reckless conduct". Nicholas LaPalme wrote (before the decision of the MA SJC came out) an informative student note in the BU Law Review about the case and the thorny issue of causation in its context, which I recommend to those who want to dig into the subject more deeply.

MA does not have a criminal statute that specifically covers the encouragement of suicide, which is why prosecutors apparently and successfully resorted to an involuntary manslaughter theory. While I don't think the answer is obvious, my current thinking is that the case was decided incorrectly.

The SJC agreed with the lower court that Carter engaged in "coercion, in the sense of overpowering the victim's will." Indeed, the SJC stated that:

Until the victim got out of the truck, the judge described the victim as the cause of his own suicidal actions and reactions. This period of "self-causation" and "self-help," which is completely consistent with his prior behavior, ended when he got out of the truck.

The SJC added:

The judge could have properly found, based on this evidence, that the vulnerable, confused, mentally ill, eighteen year old victim had managed to save himself once again in the midst of his latest suicide attempt, removing himself from the truck as it filled with carbon monoxide. But then in this weakened state he was badgered back into the gas-infused truck by the defendant, his girlfriend and closest, if not only, confidant in this suicidal planning, the person who had been constantly pressuring him to complete their often discussed plan, fulfill his promise to her, and finally commit suicide. And then after she convinced him to get back into the carbon monoxide filled truck, she did absolutely nothing to help him: she did not call for help or tell him to get out of the truck as she listened to him choke and die.

I am far from convinced that the fact that we are dealing with a "vulnerable, confused, mentally ill" adult is sufficient to break the chain of self-causation. While the case was reminiscent in some ways of that in which Lori Drew convinced 13-year-old Megan Meier via a fake MySpace account to kill herself, one of the key differences is that Meier was a minor, a status that often comes with special legal treatment (note: Orin Kerr was a pro bono lawyer for Drew, and the judge actually overturned the jury's conviction under the Computer Fraud and Abuse Act).

While Roy suffered from depression and had made previous aborted suicide attempts, it is not clear to me that he was mentally incompetent in a legally relevant sense. He had not lost touch with reality such as by suffering a psychotic breakdown or the like at the time of his suicide. His texts strike me as entirely lucid. To overpower a victim's will, the victim for all intents and purposes needs to be deprived of free will - I don't see sufficient evidence that he was.

Relatedly, if Roy's will was under a cloud, what about Carter's? Carter, who unlike Roy was technically still a minor (though barely), had her own history of mental health problems and had been taking antidepressants for several years. Psychiatrist Dr. Peter Breggin (admittedly, a controversial figure in his field) testified at the trial that Carter was "enmeshed in a delusion" and thought she was helping Roy when encouraging him to end his suffering through suicide. For those interested, Dr. Breggins put together an extensive archive about his views on the case, including that Carter's behavior, which previously included trying to keep Roy from killing himself, experienced a change after a medication switch a few months before the suicide.

If a legislature wishes to punish behavior like Carter's, it will have to think extensively through its requirements for the mental state of both the victim and the perpetrator to tease out what it means to overwhelm someone else's will without one's own will being considered overwhelmed. MA's involuntary manslaughter statute does not do that work, and using it in this case circumvents the fact that the legislature chose not to make encouragement of suicide a specific, stand-alone criminal offense. We should not let our strong distaste for Michelle Carter's actions detract from the realization that this case sets a dangerous precedent.

Why Rep. Omar was accused of indulging in anti-Semitic rhetoric

It's not about AIPAC. She suggested that the only reason a Republican would call her out for past anti-Semitic comments was that he was paid off by Jewish money.

As readers are likely aware, Rep. Ilhan Omar of Minnesota has been embroiled in a controversy about alleged anti-Semitic tweets she posted. The controversy has devolved into a debate over whether, to what extent, and under what circumstances discussing the influence of AIPAC and other pro-Israel groups over American Middle East policy relies on anti-Semitic conspiracy theories and tropes.

Lost in the shuffle is that the context of Omar's tweets makes the underlying anti-Semitism much clearer than the way the debate, as described above, has been framed.

Here's what happened: The Israeli newspaper Ha'aretz posted an article in English describing how House Minority leader McCarthy promised 'Action' against and fellow freshman congresswomen Rashida Tlaib. As the article noted, both women are strongly anti-Israel, and both had been accused of engaging in anti-Semitic rhetoric. Indeed, Omar had already apologized for one of her comments, suggesting that Israel "has hypnotized the world," stating that she didn't realize that that this language seemed to play on classic anti-Semitic tropes and was thus offensive to Jews. Given that McCarthy analogized Omar and Tlaib to Rep. Steve King, it seems fair to surmise that just as House Republicans demoted King for racist comments, McCarthy sought to penalize Omar and Tlaib for anti-Semitic rhetoric.

In stepped Glenn Greenwald, who retweeted the Ha'aretz piece, and commented: "GOP Leader Kevin McCarthy threatens punishment for @IlhanMN and @RashidaTlaib over their criticisms of Israel. It's stunning how much time US political leaders spend defending a foreign nation even if it means attacking free speech rights of Americans."

Greenwald, as his wont, drew no distinction between "criticizing Israel in an anti-Semitic manner" and "criticisms of Israel." He also conflated criticizing anti-Semitic comments about Israel with "defending a foreign nation," and made the bizarre suggestion that McCarthy threatening to penalize members of Congress for racist/anti-Semitic statements somehow impinges on their free speech rights--as if King had a first amendment right not to be demoted after praising white supremacy.

Ilhan, in turn, retweeted Greenwald with the comment, "It's all about the Benjamins baby." After receiving lots of pushback, she "clarified" that she was referring to AIPAC.

The context of the controversy, in other words, was not a debate about a specific Israeli policy, nor about the general influence of AIPAC, but about a leading Republican calling out two leftist Democrats for comments that were widely perceived to be anti-Semitic, and for which one of the Democrats had already apologized.

So the anti-Semitic implications of Omar's initial tweet are rather clear: 'McCarthy isn't criticizing me because it's an obvious political move for a Republican to criticize anti-Semitism among Democrats, but because he's been bought off by Jewish money. And, moreover, that calling out anti-Semitism in this particular context constitutes loyalty to a foreign country.'

She then tried to save herself by suggesting that she wasn't referring to Jewish money in general, but specifically to AIPAC, the leading pro-Israel lobby group. And in fact she partially succeeded in redirecting the debate to one over AIPAC's influence.

Let's be generous, and assume she meant AIPAC to begin with. Two freshman Democrats who have attracted a great deal of attention are widely perceived to have engaged in anti-Semitic rhetoric while criticizing Israel. The leader of the House GOP, just off demoting a member of his caucus for racist comments, threatens similar action against the two Democrats. Again, this seems like a rather obvious political move, that neither needs any lobbying group for inspiration, nor is in fact about Israeli policy, as such. Suggesting in the absence of "Israel lobby" money, the House Repbuplican leader wouldn't call out anti-Semitism by House Democrats suggests that you believe that the lobby, i.e., Jews, are pulling the strings in a classic Jewish-conspiracy kind of way, such that even the most mundane and obvious of political maneuvers are really just tribute to a Jewish cabal.

UPDATE: How might someone in Omar's position have responded to Greenwald's tweet, assuming some response was deemed appropriate, if she wanted to seem sincere in her previous apology and not fan new flames of anti-Semitism? How about, "I erred in using rhetoric that inadvertently echoed anti-Semitic canards, but I apologized sincerely for my error and reject Rep. McCarthy's attempt to gain partisan advantage through his divisive tactics. I look forward to working with the Jewish community on issues of mutual concern."


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