- Online accessibility demands under the ADA: “Surge in website lawsuits continues” [Retail Law Advisor, background]
- Even with no trade war yet, jitters affect livestock growers through slump in cattle futures [Richard Parker, Dallas News] Federalist Society/American Branch of the International Law Association panel on trade law in Trump era [part of symposium with panels on international law generally, alliances and interventions]
- “There is yet another more level of nerdiness, courtesy of Professor David Noll. Anne Gorsuch signed the rule at issue in Chevron.” [Josh Blackman]
- Stop Settlement Slush Funds Act reintroduced as H.R. 522 and likely again to command majority support in House Judiciary Committee [Rep. Bob Goodlatte, earlier (in face of veto prospect, committee approved bill last term by 18-6 vote), more: Fox News, earlier]
- Did Obama DoJ civil rights chief Vanita Gupta act without lawful authority? [Thomas Berry, Cato Legal Policy Bulletin]
- A second Trump executive order on regulation establishes reform officials within agencies [Brian Knight, Reuters, text, earlier on first order]
Search Results for ‘whitehouse’
Environment roundup
- “Rockefeller Foundations Enlist Journalism in ‘Moral’ Crusade Against ExxonMobil” [Ken Silverstein] Massachusetts was using courts to investigate heretics back before the oil industry was even whale oil [Reuters on subpoena ruling] Washington Post shouldn’t have run Sen. Sheldon Whitehouse (D-R.I.) on climate politics without noting his brutal efforts to subpoena/silence opponents on that topic;
- “Should you go to jail if you can’t recognize every endangered species?” [Jonathan Wood]
- Sandy Ikeda reviews Robert H. Nelson, Private Neighborhoods and the Transformation of Local Government [Market Urbanism]
- D.C. Circuit shouldn’t let EPA get away again with ignoring cost of power plant regs [Andrew Grossman on Cato amicus brief]
- Under what circumstances should libertarians be willing to live with eminent domain in the construction of energy pipelines? [Ilya Somin and earlier] Economic benefits of fracking are $3.5 trillion, according to new study [Erik Gilje, Robert Ready, and Nikolai Roussanov, NBER via Tyler Cowen]
- “Dramatically simpler than the old code…[drops] mandates for large amounts of parking.” Buffalo rethinks zoning [Aaron Renn, City Journal] Arnold Kling on California’s housing shortage; John Cochrane on an encouraging Jason Furman op-ed; “Zoning: America’s Local Version Of Crony Capitalism” [Scott Beyer]
Free speech roundup
- New, much-anticipated documentary Can We Take a Joke? When Outrage and Comedy Collide [on demand, Greg Lukianoff] More on the fining of comedian Mike Ward by the Quebec Human Rights Tribunal [Guardian, earlier]
- “It is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!” [@donaldjtrump Sunday on Twitter] 25 years ago in my stump speech on lawsuit reform I criticized Trump for his use of legal threats to silence critics. More reportage on that history, a familiar topic around here [Frances S. Sellers, Washington Post, earlier here, etc.]
- Eighth Circuit: Nebraska regulators improperly retaliated against financial adviser over (inter alia) his criticism of Obama [Eugene Volokh]
- Nine senators (Boxer, Durbin, Franken, Markey, Reid, Sanders, Schumer, Warren, Whitehouse): we demand 22 right-of-center think tanks open their donation records to us [Carolina Journal]
- “Copyright infringer issues bogus DMCA over someone calling him out. Then denies all of it” [Mike Masnick, TechDirt]
- Lawsuit demanding R ratings on films with “tobacco imagery” deserves to be hit with SLAPP sanctions; “suing the MPAA to force censorship raises the stakes.” [WSJ Law Blog, Scott Greenfield]
“Dems Assigned Conservative Groups to Attack on Senate Floor”
Are you now, or have you ever been, a supporter of the Hoover Institution, the Mercatus Center, the Heritage Foundation, or the Acton Institute? Lachlan Markay, Free Beacon:
Democratic senators have been assigned conservative nonprofit groups to call out by name on the chamber floor in speeches on Monday and Tuesday criticizing corporations and advocacy groups for opposing Democratic climate policies, internal emails reveal.
…[Rhode Island Sen. Sheldon] Whitehouse and his allies, including Senate Minority Leader Harry Reid (D., Nev.), have crafted a schedule for floor speeches on Monday and Tuesday that assigns each participating Senator at least one group to go after by name.
Most of the groups have already been targeted by state Democratic officials that have undertaken a coordinated legal campaign against oil giant ExxonMobil since last year. Many were named in subpoenas sent to the company by state attorneys general as part of that effort.
The ringmaster, once again, is Sen. Sheldon Whitehouse of Rhode Island — yes, that Sheldon Whitehouse, whose hometown Providence Journal rightly called out his current campaign to sic the law on improper climate opinion as likely to “have a chilling effect on free speech, by intimidating dissenters into silence.” The leader on the House side is Rep. Ted Lieu (D-Calif.), also getting to be a familiar name.
One reason this is more sinister than your ordinary political sideshow: the proposed concurrent resolution urges right-leaning nonprofits “to cooperate with active or future investigations” of purportedly unlawful opinion-slinging. One of the most junior senators, Gary Peters of Michigan, apparently drew the short straw in the heresy posse and was assigned to attack my own Cato Institute (which publishes this site) at 6:30 this evening.
The senators participating in this appalling exercise besides Sens. Whitehouse, Reid, and Peters, all Democrats, are Sens. Ben Cardin of Maryland, Tim Kaine of Virginia, Barbara Boxer of California, Martin Heinrich of New Mexico, Chuck Schumer of New York, Al Franken of Minnesota, Elizabeth Warren of Massachusetts, Dick Durbin of Illinois, Tom Udall of New Mexico, Jeanne Shaheen of New Hampshire, Jack Reed of Rhode Island, Edward Markey of Massachusetts, Brian Schatz of Hawaii, Jeff Merkley of Oregon, Richard Blumenthal of Connecticut, and Chris Coons of Delaware.
Some early reactions: “All that is lacking are their public confessions” — Ronald Bailey at Reason (whose associated Reason Foundation is among the targets). “‘Assigned’ groups to attack? That sounds like middle school mean girl behavior.” [C.B. on Facebook] Peter Roff at U.S. News on how the Senators can’t (yet) make dissent illegal but can make it costly. And a reminder: the “Exxon Knew” crowd knew Whitehouse’s RICO-for-speech theory was wrong because their own allies had told them, but went ahead anyway.
More, Matt Welch at Reason:
…Since the targets of this shaming exercise are not being afforded the courtesy to rebut the charges in the forum at which they are being smeared, consider this a prebuttal…
This coordinated campaign would be an assault on free speech even if it were not drenched in conspiratorial inaccuracy. Democratic lawmakers, attorneys general, and activists are systematically singling out free-market think tanks for potential criminal prosecution and one-sided disclosure requirements based on the content of the think tanks’ research and commentary. They are literally trying to criminalize dissent. If successful, they will establish as “fraud” or “racketeering” any future think-tank work that runs afoul of political orthodoxy. …
Sadly, this heavy-handed act of government intimidation will likely go as unnoticed as Hillary Clinton’s long track record against free speech. Why? Because generally speaking both the mainstream press and the organized left reserve their First Amendment outrage for politicians they disagree with. Their silence is shameful, and deafening.
The senators’ action this week is no hyperbolic one-off: Prosecuting ungood climatology is baked right into the Democratic Party Platform. The two major Democratic nominees for president agree.
[Updated to correct error on Lachlan Markay’s name, sorry]
“Oil as the new tobacco” — and what that might mean
Promoters of the “Exxon Knew” climate denial subpoena campaign have made a point of saying they intend to repeat the playbook of the 1990s multi-state and federal tobacco litigation, this time with the energy industry and its various trade associations, allies, and non-profit/university well-wishers as targets. But what does it mean to repeat the tobacco playbook? As one who has written at length about that episode (along with various other authors including Cato’s Robert Levy, the late Martha Derthick, and Margaret Little) I can help spell out what that means. The public-sector tobacco litigation fell out of favor as a policy model because it was the scene of vast corruption fueled by the availability of billions in fees to politically favored private lawyers; because of its grotesque violations of elemental legal fairness, such as the enactment of statutes retroactively knocking out legal defenses for the state’s opponents; because of its quick-change remake of purported initial idealism into cash on the barrelhead as the primary driver of settlement; and because of its grave civil liberties violations such as the federal government’s assertion of a right to close down industry trade associations and seize their files. Are advocates of the new climate-denial litigation hoping for it to follow the same path? [Valerie Richardson, Washington Times, thanks for quoting me]
Climate advocacy as “racketeering”: they knew
They knew, because their own allies had told them: “As you know, deception/disinformation isn’t itself a basis for criminal prosecution under RICO.” — an official of the Union of Concerned Scientists, writing to the organizers of a campaign to enlist scientists behind a call for a RICO investigation of the fossil fuel industry for its statements about climate change. The letter added, explaining UCS’s unwillingness to back the letter, “We don’t think that Sen. [Sheldon] Whitehouse’s call gives enough of a basis for scientists to sign on to this as a solid approach at this point.” [Reason]
Despite cautions like these, calls for a RICO investigation soon caught on among the political class and an investigation launched by Democratic state attorneys general has now aimed dragnet climate subpoenas at the Competitive Enterprise Institute and, thus far less directly, at nearly 100 advocacy, free-market, and university-based groups. “These include the U.S. Chamber of Commerce Foundation, the George Mason University Law and Economics Center, the American Enterprise Institute, the National Taxpayers Union Foundation, the Cato Institute [which publishes Overlawyered], the National Black Chamber of Commerce, the Federalist Society for Law and Public Policy Studies, the Heritage Foundation, and on and on,” writes Ronald Bailey. CEI responded to the subpoena here (in a brief written by Andrew Grossman) and here, and on May 13 Cohen Milstein, the private contingency-fee law firm representing the attorney general of the Virgin Islands, responded, reserving the right to compel compliance with the subpoena, which demands the production of ten years’ worth of documents.
Presidential candidates Hillary Clinton and Bernie Sanders are among public figures who have backed calls for a racketeering investigation of fossil fuel companies’ participation in climate debates. I have found no evidence that either has expressed concern about the direction in which such investigations are headed.
What’s the problem with Rhode Island officials and free speech, anyway?
Seriously, what’s their problem? [Hans Bader on the Rhode Island attorney general’s proposal for a ban on many hostile social media posts, covered here earlier] Meanwhile, a Providence Journal editorial blasts home-state Sen. Sheldon Whitehouse:
…in dealing with [carbon dioxide emissions], or any crisis, it is vitally important that America not discard its essential values of freedom.
Regrettably, Sen. Sheldon Whitehouse, D-R.I., continues to make noises about using government to prosecute some of those who willfully persist in questioning the scientific consensus on climate change. …
This is troubling: a U.S. senator and attorney general [Loretta Lynch], both sworn to uphold the Constitution, mulling legal action against American citizens and companies for the “crime” of challenging a scientific theory. A number of Democratic attorneys general — including Rhode Island’s Peter Kilmartin — have also expressed interest in prosecuting those whom they believe are deliberately misleading the public about this issue.
Turning such disagreements into punishable acts of fraud would seem to be legally difficult. But that may not be the point. The threat alone could have a chilling effect on free speech, by intimidating dissenters into silence. Such an approach would be an affront to the scientific method, which involves the free exploration of ideas. …
President Thomas Jefferson said in his first inaugural address: “Error of opinion may be tolerated where reason is left free to combat it.”
There is no reason to pit environmentalism and free speech against one other. We can join together to protect our planet without trying to silence those who argue against us.
Some more recent commentary on the AG subpoena investigation Sen. Whitehouse helped orchestrate: Richard Epstein, George Will, Ronald Rotunda. As Prof. Rotunda points out, the government not only declines to prosecute advocacy research in other contexts, but often funds it. And the 2012 Alvarez v. U.S. (stolen valor) case establishes that outright, knowing lying for advantage often receives constitutional protection as well, on the recognition by the courts that “if the government can punish that, we go down a steep slippery slope. … The marketplace of ideas, not the subpoena power of government, should decide what is true or false.” More: “The environmental campaign that punishes free speech” [Sam Kazman and Kent Lassman (CEI), Washington Post]
Free speech roundup
- Eric Turkewitz has collaborated with other law bloggers on a series of April Fool’s blog hoaxes, but this year many bloggers sat out his joke about Donald Trump suits against the press. Sort of a canary in the coal mine right there [Paul Alan Levy]
- It’s come to this: Providence Journal runs pro/con debate on whether to criminalize “climate denial” [Michael E. Kraft, H. Sterling Burnett, link fixed now h/t Gitarcarver] Putting the R.I. in RICO: Sen. Whitehouse trades charges with WSJ, other malefactors (hello!) who keep fighting him on climate probe [Edward Fitzpatrick, Providence Journal, WSJ]
- “Judge Dismisses Felony Charge Against Michigan Jury Rights Pamphleteer” [Jacob Sullum, earlier on nullification activists and the law here, etc.]
- Feminist urges banning porn on the rationale least consistent with the First Amendment: that it operates as propaganda, the way a philosophical treatise might [Washington Post]
- FIRE announces free online First Amendment library; also interviews Eugene Volokh in a seven-minute video [Ronald Collins/Concurring Opinions]
- Greater Glasgow Police to social media users: “Think before you post or you may receive a visit from us this weekend.” [Alex Massie, Spectator, earlier on Scotland speech bans]
Behind that “scientists’ letter” on climate denial as legal offense
Remember that “scientists’ letter” in which twenty or so credentialed scientists signed their names to a letter asking that so-called climate deniers be investigated, as Sen. Sheldon Whitehouse (D-R.I.) had been demanding? On inquiry, however, some of the signatories did not seem to know much about the letter or to be particularly committed to the idea. According to David Rifkin and Andrew Grossman’s new Wall Street Journal piece (ungated here), open records requests have now established that the letter was coordinated by Sen. Whitehouse himself. Background here, here, etc.
Rifkin and Grossman also announce the formation of a new, and badly needed, Free Speech in Science Project. “The project will fund legal advice and defense to those who need it, while executing an offense to turn the tables on abusive officials.”
Environment roundup
- Oh, George Takei, must you approvingly link to conspiracy site saying Zika virus microcephaly is caused by Monsanto? [archived]
- Texas lawyer who blew GM trial sued over alleged BP compensation scam [Laurel Brubaker Calkins and Margaret Cronin Fisk, Bloomberg Business Week]
- “Enviros Plan To Militantly Shutter World’s Major Coal Plants” [Daily Caller]
- Obama administration has been on a tear imposing compulsory energy efficiency standards on consumer products, but a bill in Congress would halt that trend [Paul (“Chip”) Knappenberger and Patrick Michaels, Cato]
- From the vaults: Ted Frank notes how historic preservation laws can lead owners to pre-emptively demolish a building for fear that exploring options to save it could lead opponents to organize and seek an injunction [Point of Law]
- “Obscure Taxpayer-Funded Program Bankrolls Anti-Pipeline Activists” [Inside Sources]
- Pressed by Sen. Sheldon Whitehouse, Attorney General Loretta Lynch says Exxon’s claimed climate denial has been referred to FBI [Grist, I get a mention]