A memo last week from San Francisco Mayor London Breed made clear that “the City’s contracting processes and policies have not changed and will not change as a result of the Resolution” by the Board of Supervisors branding the National Rifle Association a domestic terrorist group. [Joshua Koehn, San Francisco Chronicle] The resolution had proclaimed that the city should take all reasonable steps to identify and limit business and financial links between its vendors and contractors and the membership organization, but Breed pointed out that the city enacts changes to its law only by ordinance, not by resolution, which means the swaggering language had no effect off the playground. It had been widely predicted that courts would strike down a move by the city to coerce contractors in this way. Earlier here and here.
The video of Cato’s 18th Constitution Day forum, held September 17, is now online, with a line-up of eminent speakers including Tom Goldstein of SCOTUSBlog, Jan Crawford of CBS News, and Judge Thomas Hardiman of the U.S. Court of Appeals for the Third Circuit, who in the annual B. Kenneth Simon Lecture discussed judicial independence and service during good behavior. I moderate the third panel, on Property Rights, Antitrust, and the Census.
Court-packing schemes have something in common with passing a municipal resolution to label one’s political adversaries “domestic terrorists”: their proponents, as David Boaz has observed, tend not to ask “What if my opponents had this power?” Eric Turkewitz expands on the idea in a post:
This is as good a time as any to discuss the Golden Rule of Laws. This rule states that when you want to use some legal maneuver to attack “the other side” ask yourself how “the other side” could likewise use it.
- Though ruled unconstitutional a half century ago, Louisiana’s criminal defamation law has remained on the books and could still cause you grief, especially if a sheriff’s office thinks you’ve defamed it [Sara Pagones and Katie Moore, NOLA.com]
- Certiorari petition filed asking Supreme Court to stop climatologist Michael Mann’s lawsuit against National Review [NR, earlier]
- Latest sassy response to a cease-and-desist demand (language) [Mike Masnick, TechDirt; “Diamond and Silk” versus Wonkette] Person “threatens to sue the Guinness World Record folks for removing his records” [same]
- Also Techdirt-related: “Defamation lawsuit brought by self-proclaimed email ‘inventor’ settles” [Cyrus Farivar, NBC, related]
- New Hampshire high court: inventor and company weren’t defamed by being called patent troll [ABA Journal, earlier here and here] Lawsuit alleging adult defamation of a seventh grader results in liability but no damages [Eugene Volokh; Massachusetts Superior Court]
- Council in Peachtree City, Ga. considers proposal to pay legal bills of city workers and officials who sue critics for defamation [George Franco, Fox 5 Atlanta]
Some followup on the “Statement on the Purpose of a Corporation” signed by 180 CEOs of major companies and covered in this space earlier: “What’s significant about the statement is what it does not say. The corporate signatories do not suggest in any way weakening the fiduciary duties of the boards and managers of ordinary for-profit shareholder corporations to manage such companies’ affairs for shareholders’ benefit.” [Jim Copland] “If corporate leaders, under the new Business Roundtable principles, elevate concerns about their employees and communities, are their decisions still entitled to deference under the business judgment rule?” [Alison Frankel, Reuters] Many of the assumptions underlying these discussions amount to political myths [Jonathan Macey] And the Federalist Society held a panel on “Corporate Responsibility: Maximizing Shareholder Benefit v. Social Justice” with Paul Atkins, Macey, and Andrew Schwartz. More: CLS Blue Sky Blog.
Did you guess “Canada”? The Canadian federal elections agency “will consider any substantial public talk or advocacy about climate change during the weeks around the Oct. 21 general election as potentially a form of election advertising, and thus only legal if it complies with the Elections Act.” [J.J. McCullough, Washington Post]
- Britain’s Labour Party conference pledges to take over private schools, confiscating endowments as well as land and property [Benjamin Kentish, Independent]
- New York Department of Education readies moves to place private and religious schools under much tighter government control [Peter Murphy, City Journal]
- Chicago teachers’ union sends delegation on “solidarity trip” to Venezuela [Mark Glennon, Wirepoints; Hannah Leone, Chicago Tribune]
- So-called Blaine Amendments bar religious schools in participating in voucher programs to which they would be admitted were they nonsectarian. A case of religious discrimination, and if so, violative of the First Amendment? [Ilya Shapiro and Dennis Garcia on Cato merits brief in Supreme Court case of Espinosa v. Montana, Trevor Burrus and Patrick Moran on certiorari stage brief]
- “The [California] draft curriculum says that ethnic studies courses created by districts from the proposed curriculum will… ‘critique empire and its relationship to white supremacy, …capitalism, and other forms of power and oppression'” [Valerie Strauss, Washington Post/Lowell Sun; Elizabeth Castillo, Cal Matters; Joanne Jacobs]
- “Kamala Harris expresses ‘regret’ over California truancy law” [Katie Galioto, Politico; background; “Souvarine”, Daily Kos (“criminal penalties for parents of truant children” are among “the earliest and most enduring progressive victories”; also tracing publicity on the issue to a certain scribbler of “libertarian claptrap,” though I made clear I was building on the earlier work of, e.g., the Marshall Project)]
- Despite strenuous efforts in Seattle and D.C. suburbs to impose “equity lens” on school systems and train all sides about implicit bias and systemic racism, no sign that actual outcome gaps are likely to budge [Rebecca Tan, Washington Post]
Not scary or intrusive at all: presidential candidate Sen. Bernie Sanders (I-Vt.) has called for enacting a “national wealth registry,” the better to enforce future schemes of taxation, confiscation, and restraints on expatriation [Brittany De Lea, Fox Business; related, Chris Edwards, Cato; Emily Ekins on opinion poll] And the steep “exit tax” that Sen. Elizabeth Warren (D-Mass.) and Sanders propose to slap on wealthy individuals who depart the U.S., of up to 40 and 60 percent respectively, did not sound better in the original German [Ira Stoll; earlier]
P.S.: On the constitutionality angle, note that the Competitive Enterprise Institute has just filed a lawsuit on behalf of a couple challenging the constitutionality of a provision of the 2017 tax reform law known as the Mandatory Repatriation Tax. Counsel Andrew Grossman, quoted in the CEI press release, stated:
The Mandatory Repatriation Tax is unconstitutional for the same reason that a wealth tax would be. The Constitution does not permit Congress to simply declare money that it wants to tax to be income and then demand its cut. And the courts have never permitted retroactive taxation reaching back anywhere near the 30 years, as the Mandatory Repatriation Tax does. The details of the tax may be complicated, but the constitutional violations are clear.
Eugene Volokh thanks a House panel for “inviting me to testify about ‘How the Tax Code Subsidizes Hate.’ The Tax Code indeed subsidizes hate, just as it subsidizes Socialism, Satanism, and a wide variety of dangerous and offensive ideas.”
In particular, a long line of court opinions has made clear that 1) “tax exemptions can’t be denied based on the viewpoint that a group communicates,” 2) “excluding speech that manifests or promotes ‘hate’ is forbidden viewpoint discrimination”, 3) the law “may treat groups differently based on their actions, but not based on the views they express” (emphasis added) and that 4) while groups may be denied tax exemptions “for deliberately engaging in speech that falls within one of the few narrow exceptions to the First Amendment, such as true threats of criminal attack, or incitement intended to and likely to cause imminent criminal conduct,… ‘hate speech’ writ large doesn’t fall within any such exceptions.” In addition, the D.C. Circuit has found that a former IRS attempt to hinge exemption on a group’s presentation of “a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion” was unacceptably vague in scope and application.
Moreover, if the IRS were to begin revoking groups’ tax exemptions based on their exercise of speech that is not protected, such as libel or incitement of immediate criminal conduct, it would be obliged to apply such a policy neutrally as to content — which means a lot of groups quite different from the one targeted in the test-case controversy will find their ox gored. The legal precedents have developed in cases involving a wide range of both progressive and conservative litigants, and understandably so, because if principles in this area are to be principles they must protect speakers of many different points of view, not just the popular or emollient. Either that, or they will in effect protect none. [expanded and cross-posted at Cato at Liberty]
- “Small claims court for copyright” idea, now moving rapidly through Congress, could create a new business model for troll claimants [Mike Masnick, TechDirt; EFF on CASE Act] A contrasting view: Robert VerBruggen, NR;
- “If Boston is weirdly NOT full of good restaurant/bar/cafes for its size, and if people don’t want to stay after they hit 26 or so, these throttled [liquor] licenses are one of the real structural reasons why.” [Amanda Katz Twitter thread]
- Push in California underway to join a trend I warned of five years ago, namely states’ enacting laws to encourage tax informants with a share of the loot [McDermott Will and Emery, National Law Review]
- Baltimore food truck rule challenge, single-member districts, sexting prosecution, and more in my new Free State Notes roundup;
- “For years the Westchester County DA, Jeanine Pirro, now a Fox News host who opines on justice, rejected Deskovic’s requests to compare the DNA evidence against a criminal database. Deskovic was not exonerated until 2006, after he had served 16 years” [Jacob Sullum, Reason]
- Come again? “Louisville judge rules Kentucky speed limit laws unconstitutional” [Marcus Green, WDRB]