A “string of civil lawsuits intended to pin liability on online platforms for allegedly providing material support to terrorists” has mostly fared poorly in court, with Section 230 providing a bulwark against liability in most cases, “but some of these cases are on appeal and plaintiffs have filed several new ones. If these suits are successful, they could be detrimental for the Internet: platforms would have little choice to become much more restrictive in what sorts of speech they allow.” In particular, “if online platforms no longer have Section 230 immunity for hosting content even remotely related to terrorism, those forums and services will take aggressive action to screen their users, review and censor content, and potentially prohibit anonymous speech.” [Aaron Mackey, Electronic Frontier Foundation; examples here (Facebook), here (Twitter), here, here (San Bernardino: Facebook, Google, Twitter), here (attacks in Paris and Brussels, Twitter), here (Orlando), here (Facebook), here (Twitter), etc. ]
January 30 roundup
- “Battle over stolen diamond-studded golden eagle takes flight as insurer fights order to pay up” [Jason Proctor, CBC]
- Fentanyl test strips save lives. Feds oppose their distribution [Jeffrey Singer, Cato]
- D.C. Circuit judicial nominee Neomi Rao (full disclosure: an old friend) “comes under fire for undergraduate writings on sexual assault — though her views from 25 years ago are consistent with today’s statutes and rulings.” [K.C. Johnson, City Journal]
- One reason the costs of rent control policies get understated: it’s hard to control and account for declines in the quality of apartment services [Richard McKenzie and Dwight Lee, Cato Regulation magazine]
- Federalist Society National Lawyers Convention video panel on antitrust law transparency with Deb Garza, Hon. Frank Easterbrook (“Always remember that sunlight is full of ultraviolet radiation”), Eric Grannon (incentive problems of “amnesty plus” program; “moral turpitude” provisions, more on which), moderated by Hon. John Nalbandian;
- Big reason military and health care procurement is so pricey: “scads of less specific programs out there [are] insanely cheaper and more functional, but those programs cannot justify the costs of becoming compliant” [from Tyler Cowen comments]
Bans on Independent-Contractor Status Hurt Workers (Again)
In April of last year the California Supreme Court ruled that a large class of service workers historically categorized as independent contractors, those who are under contract with a host enterprise that performs the same kind of service they do, have to be treated as employees and brought under the full range of employment laws. Some labor advocates cheered, but many California workers did not. “I lost my entire staff,” said owner Anthony Giannotti of downtown Sacramento’s Bottle and Barlow barber shop. All seven of his barbers quit, he said. The ruling is expected to disrupt the marketplace for cosmetologists and tattoo artists, yoga and Pilates instructors, and even FedEx delivery personnel. [Angela Greenwood, CBS Sacramento in September]
“Canada’s New Drunk Driving Law Will Make You Thankful for the 4th Amendment”
“Under the revised law, known as C-46, which went into effect in December, police can stop any driver, anywhere, for any reason and demand their sample. Furthermore, you could be cited even if you haven’t driven a car in two hours” because police are given the right to run tests on persons who have recently driven. One strange implication: if you drive to a restaurant and have enough to drink there to cross the blood-alcohol threshold, police can write you up even if you intended to rely on your sober spouse as the one to drive home. [Jon Miltimore, FEE; Maham Abedi, Global News/MSN; earlier]
But see: Richard in comments below says the law is broad but not quite as broad as described above: the original stop must be for some lawful reason, and the law includes an exception that would mostly (though not invariably) preclude liability in the restaurant example.
Discrimination law roundup
- New EEOC chief data officer says machine learning algorithms may soon enable agency to predict, and deploy resources against, workplace bias before it happens [Paige Smith, Bloomberg Law]
- “The BSO, in a statement, defended its pay structure, saying that the flute and oboe are not comparable, in part because the oboe is more difficult to play and there is a larger pool of flutists.” [Geoff Edgers, Washington Post/Allentown Morning Call]
- Even they can’t comply: “The case was ironic since the commission is charged with eliminating discrimination in Pennsylvania.” [Matt Miller, PennLive, on the Pennsylvania Human Relations Commission’s jury loss in a race discrimination complaint] “Do as they say, not as they do: employees accuse Planned Parenthood of pregnancy discrimination” [Jon Hyman]
- Fourth Circuit: maybe Title VII doesn’t create a right to swipe files from HR [Jon Hyman]
- Although libertarians support legalizing marijuana, they should not support laws that bar employers from discriminating on the basis of marijuana use [Jeffrey Miron, Cato]
- “Why do women earn less than men? Evidence from train and bus operators” [Valentin Bolotnyy and Natalia Emanuel via Tyler Cowen]
- Minnesota jury orders women’s football team and league to pay $20,000 to transgender applicant turned away [Mary Lynn Smith, Minneapolis Star Tribune]
“Mom whose tot started deadly Bronx fire sues for $1B from stove maker, city”
“The woman whose toddler sparked a 2017 Bronx blaze that killed 13 people and whose own actions might have fanned the deadly flames is now demanding a total of $1.1 billion — citing the ‘negligence’ of others.” Among other defendants, the suit blames a stove maker for “knobs and valves that were too easy to turn on.” [Dean Balsamini, New York Post]
Court: Maryland law regulating newspapers and social media flunks First Amendment
Last year following the Russian Facebook scandal the Maryland legislature passed a bill regulating newspapers (!) and other online ad platforms. Gov. Larry Hogan refused to sign it, citing First Amendment concerns. Now a federal court has agreed and blocked the law’s enforcement as an unconstitutional infringement on the freedom of the press.
I write about the case at Cato. “Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse.”
Food and paternalism roundup
- “Sandwiches and main meal salads will be capped at 550 calories, ready meals will be capped at 544 calories and main courses in restaurants will be capped at 951 calories.” Guidelines from Public Health England aren’t mandatory yet, but expect U.K. government pressure on supermarkets and restaurants [Christopher Snowdon, Baylen Linnekin, Scott Shackford, Ryan Bourne]
- “We are not saying they can never give children a chocolate or biscuit ever again,” says the Public Health England official. “But it cannot be a daily occurrence.” And more from “2018: The [mostly U.K.] nanny state year in review” [Snowdon]
- Research paper on Philadelphia soda tax: cross-border shopping completely offsets in-city reduction in beverage sales, “no significant reduction in calorie and sugar intake.” [Stephan Seiler, Anna Tuchman, and Song Yao, SSRN via Caron/TaxProf] More: owner blames tax for closure of Philly supermarket [Eric Boehm]
- Alternative headline: feds act to curb food waste by giving local schools more freedom to offer lunches kids will willingly eat [Jaden Urbi, CNBC]
- “Los Angeles councilmember Paul Koretz [has] introduced a bill that, if passed, would require entertainment and travel venues around town to put at least one vegan dish on their menus.” [Clint Rainey, Grub Street; Scott Shackford]
- “Dollar stores are the latest target of advocates who want to improve food offerings by limiting them” [Baylen Linnekin]
Feds: we’ve had it with qui tam gamesmanship
“The U.S. Department of Justice is asking federal judges around the country to dismiss lawsuits it says are brought by shell companies that misrepresent their true purposes – filing meritless litigation against health care companies…. The DOJ says these plaintiffs were created for the sole purpose of filing suit under the federal False Claims Act and is complaining that it spent hundreds of hours investigating kickback allegations only to find no merit to them…. Among the law firms representing the plaintiffs in the cases is the firm of prominent personal injury lawyer Mark Lanier of Texas.” [P. David Yates, Legal NewsLine/Forbes]
“Significant to DOJ’s analysis was the fact that the qui tam relators used ‘false pretenses’ to obtain information from witnesses. According to the government, the actions all were filed by a ‘professional relator’ entity that sought to develop contacts and inside information under the guise of conducting a research study of the pharmaceutical industry, and offering to pay individuals for information provided in a purported ‘qualitative research study,’ even though the information was ‘actually being collected for use in qui tam complaints filed by [the professional relator] through its pseudonymous limited liability companies.’…it would be awkward for DOJ to sit idly by and allow qui tam cases to proceed, in the government’s name—which is how the qui tam system works—when those cases are purportedly premised on a scheme one district court already described as involving ethical violations and ‘an elaborate series of falsehoods, misrepresentation, and deceptive conduct.'” [Joe Metro and Andy Bernasconi, Drug and Device Law]
And yet more: “Prominent qui tam lawyers are now questioning the nomination of William Barr as attorney general, citing comments he made nearly 30 years ago questioning the constitutionality of private relators under the FCA. Some of the lawyers who signed a recent letter to U.S. Sen. Chuck Grassley criticizing Barr, including Harvard Law School Professor Nancy Gertner, participated in litigation against Celgene that the government declined to join but nevertheless generated $280 million in settlements and more than $30 million in legal fees.” [Daniel Fisher, Legal NewsLine/Forbes]
New Orleans fans file suit over Saints loss
“Stuck between anger and depression over Sunday’s debacle in the Dome, a few dyspeptic New Orleans Saints fans have settled into an equally predictable stage of grief: litigation.” Among the claimed damages: “loss of enjoyment of life” [John Simerman, The Advocate]
Appellate lawyer Raffi Melkonian, on Twitter, writes: “Let me handicap this for everyone — this case has literally 0 chance of success. 0%. 100% minus 100%. It is dead on arrival. It is pushing up the daisies. A Court would rather deal with 200 sovereign citizen petitions than grant such relief.” More: Michael McCann, Sports Illustrated.