George Eliot on suggestion and evidence

From Chapter 8 of Silas Marner (1861), on town dignitaries’ inquiries into the movements of a suspicious visitor to the town:

“Did he wear earrings?” Mr. Crackenthorp wished to know, having some acquaintance with foreign customs.

“Well — stay — let me see,” said Mr. Snell, like a docile clairvoyante, who would really not make a mistake if she could help it. After stretching the corners of his mouth and contracting his eyes, as if he were trying to see the earrings, he appeared to give up the effort and said, “Well, he’d got earrings in his box to sell, so it’s nat’ral to suppose he might wear ’em. But he called at every house, a’most, in the village; there’s somebody else, mayhap, saw ’em in his ears, though I can’t take upon me rightly to say.”

Mr. Snell was correct in his surmise that somebody else would remember the peddler’s earrings; for, on the spread of inquiry among the villagers, it was stated with gathering emphasis, that the parson had wanted to know whether the peddler wore earrings in his ears, and an impression was created that a great deal depended on the eliciting of this fact. Of course every one who heard the question not having any distinct image of the peddler as without earrings, immediately had an image of him with earrings, larger or smaller, as the case might be; and the image was presently taken for a vivid recollection, so that the glazier’s wife, a well-intentioned woman, not given to lying, and whose house was among the cleanest in the village, was ready to declare, as sure as ever she meant to take the sacrament the very next Christmas that was ever coming, that she had seen big earrings, in the shape of the young moon, in the peddler’s two ears; while Jinny Oates, the cobbler’s daughter, being a more imaginative person, stated not only that she had seen them too, but that they had made her blood creep, as it did at that very moment while there she stood.

ADA and disabled rights roundup

  • If you think reopening a retail business with new distancing rules is a challenge, wait till you see the interplay with the ADA, as I explain in my new post at Cato;
  • Court dismisses class action against Wendy’s on behalf of disabled persons unable to use after-hours drive-up service as a walk-up [Davis v. Wendy’s International, a pre-pandemic case; earlier here, here, and here on ADA complaints regarding drive up windows]
  • “Why is subway accessibility so expensive? It’s not just about installing new elevators.” [Annie McDonough, City and State NY]
  • “After DOJ Letter on Website Compliance, The ADA Guessing Game Continues” [John D. McMickle, WLF] ADA filing mills hit condo and co-op boards [Frank Lovece, Habitat] Serial plaintiff files web access suit against Vermont bicycle maker [Bicycle Retailer]
  • Limousine service to pay $30,000 for refusing to hire deaf driver [EEOC press release]
  • Colorado homeowner’s association told to pay $50,000 after failing to allow woman to stay in the complex with her emotional support dog [Associated Press] “Do We Have to Allow Dogs in Our Workplace? Maybe. Maybe Not.” [Daniel Schwartz] Trucking company will pay $22,500 after asking driver to pay fee to bring service dog along in truck to help with his anxiety [EEOC press release]

“F.D.A. Halts Coronavirus Testing Program Backed by Bill Gates”

“An innovative coronavirus testing program in the Seattle area — promoted by the billionaire Bill Gates and local public health officials as a way of conducting wider surveillance on the invisible spread of the virus — has been ordered by the federal government to stop its work pending additional reviews….’Please discontinue patient testing and return of diagnostic results to patients until proper authorization is obtained,’ the F.D.A. wrote in a memo.”

Appalling. Now will you believe what libertarians have been trying to tell you about the Food and Drug Administration? [Mike Baker, New York Times; earlier on FDA and COVID-19 testing here]

Free speech roundup

  • “To no one’s surprise, Hungary’s coronavirus emergency bill — which criminalizes fake news — has already resulted in police detaining and questioning social media users who criticize Orbán.” [Sarah McLaughlin] “Part of the powers granted to the government by the coronavirus authorization act is the ability to criminally prosecute the spreading of false news which inhibits the ability of authorities to defend against the pandemic. András recalled that the police arrived at his home at 6 a.m. with a search warrant.” [Insight Hungary 444]
  • The more you know about past abuses under the former FCC public interest standard, the less sanguine you will be about inviting the government to regulate the fairness of social media platforms [John Samples and Paul Matzko]
  • “China-Style Internet Control Is One of the Worst Ideas for Solving Coronavirus” [Ilya Shapiro] “China’s cybersecurity administration [earlier this year] implemented a set of new regulations on the governance of the ‘online information content ecosystem’ that encourage ‘positive’ content while barring material deemed ‘negative’ or illegal.” [Lily Kuo, The Guardian]
  • San Antonio council’s anti-hate-speech resolution had a lot of ill-advised content but managed to stop short of overstepping the First Amendment itself [Taylor Millard, Hot Air]
  • We reported on SEC gag orders last year (more: Robert McNamara) and now the New Civil Liberties Alliance is in court to challenge another one [Peggy Little, NCLA on SEC v. Romeril]
  • Once censorship to regulate “online harms” gets its foothold the topics of its meddlesome ambition will expand [Charles Hymas on demands in Britain that “body shaming” in social media be subject to legal sanction]

“Wearing Masks: Legally Required, but Also Illegal”

“One potential problem: wearing a mask in public may also be a crime…. In fact, many states and localities have similar anti-disguise laws, most of which date back to the Reconstruction era and were aimed at suppressing the Ku Klux Klan.” Kevin Underhill’s explainer of the law of mask bans includes the sidelight question of “false whiskers” [Lowering the Bar]

Social media moderation and the First Amendment

Kristine Frazao of Sinclair Broadcasting interviewed me for this clip, which ran on many broadcast stations from coast to coast, and also in this associated news article:

“In America, we’ve got First Amendment that controls what a government can do and by the same token it does not control what a newspaper can do, a radio station can do or what a social media platform can do,” said Walter Olson, a Senior Fellow at the Libertarian Cato Institute’s Robert A. Levy Center for Constitutional Studies.

In other words, social media platforms are private companies, and can, therefore, choose how to label content. Still, there have been concerns raised about political bias among these independent fact-checkers, and others concerned that pushing things underground or offline may breathe new life into conspiracy theories.

“There has always been a strong argument that the way to refute bad ideas is to get them out there so people can shoot at them,” Olson said in an interview Monday. “Air them out, put some sunshine against them, it’s healthy against a virus too, and against the virus [of] a thought.”

COVID-19 pandemic roundup

“…shall guarantee to every State in this Union a Republican Form of Government”

Among the wackier claims put forth in four of the lawsuits challenging governor’s virus shutdown orders is that the measures violate the U.S. Constitution by depriving states of a republican form of government. That’s a rhetorical gesture more than a serious legal argument, both because the orders haven’t deprived states of such a form of government, and because the federal courts in any event long ago made clear that the so-called Guarantee Clause can’t be sued over — it’s a political question and not “justiciable.” I’ve got a new piece at The Bulwark looking at the history of attempts to breathe life into the Guarantee Clause and what might happen if courts ever decided to entertain lawsuits under it.

Oracle fights the federal contract cops in court

Federal administrative agencies are supposed to originate in legislation from Congress if not in the language of the Constitution itself. Ilya Shapiro and William Yeatman:

Yet for decades, the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) has operated a comprehensive enforcement regime, without any basis in the law.

It started in 1965, when President Lyndon Johnson ordered that all government contracts include a set of anti-discrimination provisions—collectively, an equal-opportunity clause. Since then, the OFCCP leveraged this tenuous foundation into a full-blown regulatory scheme, complete with the power to award monetary damages.

In recent years, OFCCP has wielded its power in increasingly aggressive ways. For example, the agency’s onerous and burdensome demands for information often exceed the value of the underlying government contract. Given the absence of statutory constraints—OFCCP is making this up as it goes along—the agency’s evident overreach is perhaps unsurprising.

In a February post here I noted that even when the agency makes up the rules as it goes along “few big companies are willing to fight back, given the breadth of arbitrary power the agency holds over them as well as the distant threat of debarment or other sanctions,” but that this pattern was beginning to change, with first Google and more recently Oracle pushing back. Now Oracle is challenging the government in court and the Cato Institute has joined an amicus brief on its behalf, arguing that “(1) OFCCP’s scheme is far beyond any statutory authority, and (2) striking it down wouldn’t undermine enforcement of anti??discrimination laws.” [Shapiro and Yeatman on brief in Oracle v. U.S. Department of Labor]