Author Archive

Free speech roundup

  • Uh-oh: “40% of Millennials OK with limiting speech offensive to minorities” [Pew Research, Cathy Young on Twitter (“OK, NOW can we stop the ‘naww, political correctness isn’t a threat to free speech, it’s just about courtesy’ spin?”)]
  • Breezy but informative guide to why Schneiderman & Co. might hope to find, amid the general rule that the First Amendment protects business speech about public policy, an exception/ loophole for business speech about public policy when it affects securities [Matt Levine, Bloomberg View; earlier on climate speech investigations here, etc.]
  • “Lawsplainer: How The Sixth Circuit Stood Up To Hecklers (And Cops)” [Popehat on Michigan case of Bible Believers v. Wayne County, Dearborn protesters threatened with arrest for “disorderly conduct” arising from prospect of violence against them]
  • Discrimination law: “Can Office Depot be forced to print flyers that it disapproves of?” [Eugene Volokh; compare Hands On Originals case in Kentucky]
  • Scary: UK’s Muslim Council calls for controls on UK press coverage of Islamic issues [Ben Flanagan, Al-Arabiya] Prominent Labour MP says he would have “no problem” with reintroducing blasphemy laws [National Secular Society]
  • Cook County sheriff sent letterhead takedown demands to over sex ads, but Supreme Court has looked askance at informal you’d-better-not-publish-this pressure by government [Ilya Shapiro and Randal John Meyer, Cato]
  • Portland, Ore. police department “encourages the reporting to law enforcement” of “offensive language used on social media” even when not illegal. It does? [Charles Cooke]

Encryption and the Paris attacks

Almost at once after the Paris attacks, speculation began to circulate that the murderers had used encrypted communications to plan their operation and that legislation giving government backdoor tools to break encryption was therefore needed more urgently than ever. Later reports have suggested, however, that the plotters employed a combination of plain vanilla unencrypted messaging with in-person communication. [Karl Bode/TechDirt, The Verge, Vice “Motherboard” (“How the Baseless ‘Terrorists Communicating Over Playstation 4’ Rumor Got Started”)] Related: Leonid Bershidsky, Bloomberg View. A contrary view: Alex Spence and Duncan Gardham, Politico Europe.

CNN to air “The Hunting Ground” Sunday

This should be interesting: 19 Harvard Law School professors have denounced “The Hunting Ground,” an advocacy show on college sexual assault which CNN plans to air on Sunday, for bias and inaccuracy. “This purported documentary provides a seriously false picture both of the general sexual assault phenomenon at universities and of our student Brandon Winston,” the professors write in an open letter. Legal journalist Stuart Taylor, Jr. calls attention to emails indicating that those working on the documentary might not have embraced what you would call detached or skeptical methods: “We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side.” More: Robby Soave and Linda LeFauve, Reason; KC Johnson, Commentary, on Jon Krakauer’s book Missoula.

And: Emily Yoffe, Slate, back in June but not linked previously; and KC Johnson has questions about a UNC episode.

Criminalization of politics: one data point

The urge to criminalize the other guy’s politics and advocacy seems to be running especially strong these days. If you doubt it, here’s another data point: a Latino advocacy group called, following Republican presidential candidate Donald Trump’s controversial comments critical of immigration, called for arresting Trump. Not only did this not stir any great outcry, but rival Democratic presidential candidate Bernard Sanders has now hired’s executive director to lead his Latino outreach.

One reason our elections and public debates are intensely fought is that they carry high stakes. Their stakes will be higher yet if the price of coming out on the losing side in an election or debate is to face potential prosecution.

“Anti-military animus”

Of the vast edifice of federal laws that now control the terms of private employment, one of the less discussed is a 1994 enactment called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), under which employees who participate in the military are made a protected class in private employment. Writes Jon Hyman: “An individual claiming discrimination under USERRA need only prove that military service was a ‘motivating factor’ in the adverse action — which may rely on circumstantial evidence (including suspicious timing, statements, or behavior) that creates a ‘convincing mosaic’ from which a reasonable jury could infer discriminatory motive.”

Hyman discusses the recent case of Arroyo v. Volvo Group North America, in which managers expressed admiration but also “frustration” at an employee’s resort to “frequent military leave” in situations where, they believed, her army reserve obligations would have been consistent with taking less time off the job. Eventually it dismissed her on attendance grounds.

Last month the Seventh Circuit overturned a lower court’s dismissal of the case, citing, as “anti-military animus,” managers’ concerns about what they perceived as her overuse of the leave, and its disruptive effects on work. “Animus” as a word here, of course, hardly carries the connotation of prejudice, spite, or hostility that frequently attach to that word. It is more like an confusing leftover from the days when federal employment law made it its chief business to prohibit invidious discrimination, rather than, as now, to enforce affirmative accommodation.

California regulation: it’ll knock the stuffing out of you

30-employee Woof ‘N’ Poof, which manufactures stuffed collector dolls and other novelty accessories in the northern California community of Chico for sale in Nordstrom and other stores, may soon call it quits [Debbie Cobb/KHSL via Richard Rider, Flash Report]:

[Owner Roger] Hart says a raise in minimum wage and workers compensation are just a couple of issues that have made it difficult to keep the business financially afloat here. Hart said, “The high cost of doing business in California coupled with ridiculous regulatory environment makes it virtually impossible to do business.” He says he has seen an 11% hike in payroll.

…A recent visit by an inspector with the Department of Consumer Affairs set the company back. The inspector from Sacramento cited him for having the wrong size font on the decorative pillow labels. He was told to take the labels out, or they would have his inventory seized. It was a costly fix.

Government is just another word for the things we do together, like threatening to seize pillow inventories with wrong-font labels.

Lowballing the cost of junior-manager overtime

How reliable are projections from the Department of Labor about the cost of the President’s ambitious new extension of overtime entitlements to salaried workers earning $23,660-$50,440? The “administration refuses to allow others to check its math. The Florida Department of Economic Opportunity, the state agency that I lead, in August requested the specific data and methodology the Labor Department used to calculate its estimates. Our request was denied.” So the department went ahead with its own analysis. “The rule will supposedly cost $2 billion the first year. Our math shows $1.7 billion for Florida alone.” [Jesse Panuccio, WSJ, earlier here, here, here, here, and here]

“Own A Business with a TV in Portland? Fire Up that Closed Captioning.”

“Every public place in [Portland, Oregon] with a television set will have to display closed captioning during business hours beginning next month, or face the specter of hundreds or thousands in fines.
… advocates for the deaf cheered, and restaurant lobbyists shook their heads in frustration.” The Portland City Council vote was unanimous. [Dirk VanderHart, Portland Mercury]

Politics roundup

  • “Executive Power in the Age of Obama,” podcast interview with Prof. David Bernstein about his new book Lawless, from Encounter Books [Liberty and Law] And so many choices: Bernstein picks his top five acts of Obama administration lawlessness;
  • Donations-wise, law firms love Hillary Clinton [Above the Law] as do teachers’ unions [RiShawn Biddle]
  • “The Criminalization Of Politics: Is It Happening, And Is It A Problem?” David Lat covers the Federalist Society convention panel [Above the Law]
  • Donald Trump’s fondness for legal threats can be traced back to his early association with infamous attorney Roy Cohn [Business Insider video with Michael D’Antonio; June 1989 Spy magazine “Those Who Can, Sue” noting the Trump/Cohn connection; a Steven Brill anecdote about Cohn and Ford Motor that I quoted in my first book] More: @andrewmgrossman on “Ex. 1 to defendant’s anti-SLAPP motion,” Trump on Kasich;
  • “Sheldon Silver lied to us” [New York Daily News editorial] More: Lawyers for Silver “don’t plan to call any witnesses. They will instead enter some documents as evidence in their defense, offering a case so minimal that U.S. District Judge Valerie Caproni used air quotes when referring to it.” [WSJ]
  • Raunchy emails in Kathleen Kane saga: “Pennsylvania’s attorney general seems to have decided that if she has to go, she’s going to take others down with her.” [AP/Yahoo]
  • Eternal return? Ex-con reinstalled as mayor of Bridgeport, Ct. played key role in cities-sue-gun-business episode [U.S. News, back then]