My new Cato post looks at a low-profile program in which a nonprofit backed by former New York City Mayor Michael Bloomberg places lawyers in state attorney generals’ offices, paying their keep, on the condition that they pursue environmental causes. We know much about this and other AG entanglements thanks to two reports by Chris Horner of the Competitive Enterprise Institute (CEI) based on public records requests that had been strenuously resisted by the state AGs. (CEI was itself the target of a notorious subpoena engineered by AG offices.) The New York Post also takes a critical view of the program.
[J]ust after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was “intentionally stifling the free exchange of ideas.” The full statement was short and to the point:
We listened to today’s Senate Select Committee on Intelligence hearing on Foreign Influence Operations’ Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.
The competition question is one that the DOJ’s antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are “stifling the free exchange of ideas on their platforms.” Because while — on its face — that might sound like it’s supporting free speech, it’s actually an almost certain First Amendment violation by the DOJ and whatever state AGs are involved.
There are lots and lots of cases on the books about this, but government entities aren’t supposed to be in the business of telling private businesses what content they can or cannot host. Cases such as Near v. Minnesota and Bantam Books v. Sullivan have long made it clear that governments can’t be in the business of regulating the speech of private organizations — though those are both about regulations to suppress speech.
More: “How Regulating Platforms’ Content Moderation Means Regulating Speech – Even Yours” [Cathy Gellis]; John Samples, Cato Daily Podcast on Trump’s comments about Google searches; Federalist Society debate on social media antitrust; “if you’re going to make an allegation that there’s a big [anti-conservative] conspiracy [on search engine results], you should do your due diligence.” [Zachary Graves] Earlier here, etc.
- Critique of political-spending provisions of Sen. Elizabeth Warren’s proposals on corporate governance [Prof. Bainbridge] Plus, some WSJ letters on her plan [same; earlier here, here, and here]
- “The Impact of the Dodd-Frank Act on Small Business” [Michael D. Bordo and John V. Duca, Cato Research Briefs in Economic Policy]
- Something to keep in mind in New York Attorney General races: “The Martin Act Gives New York Politicians Way Too Much National Power” [Jeff Patch, Real Clear Markets, and thanks for quotes]
- Through its Charities Bureau the New York AG’s office can also make life difficult for private nonprofits of whose ideology it disapproves; Democratic nominee Letitia (Tish) James says she intends to use the power to go after crisis pregnancy centers and NRA [Zach Williams, City And State NY]
- Treasury based a list of supposed Russian oligarchs on Forbes mag list of wealthy Russians. Now a 79-year-old laser scientist faces sanctions who’s been a U.S. citizen for 10 years and says he isn’t friendly with Putin [Steven Mufson, Washington Post]
- “Why California’s Gender Quota Bill [for corporate boards] Is More Likely To Be Unconstitutional Than California’s Pseudo-Foreign Corporation Statute” [Keith Paul Bishop, California Corporate & Securities Law (Allen Matkins)]
- “Lawmakers are doing nothing to stop wheelchair ramp scams: businesses” [Julia Marsh and Yoav Gonen, New York Post, earlier on NYC ADA shakedowns]
- Not a flattering picture: inside the politicized office of one state’s (Minnesota’s) attorney general [Rachel M. Cohen, The Intercept, Briana Bierschbach, Minnesota Public Radio, J. Patrick Coolican and Jessie Van Berkel, Minneapolis Star-Tribune (Swanson releases criminal record of aide-turned-critic]
- Remembering when the U.S. went through its first moral panic about plastic guns, in 1986 [Dave Kopel]
- Until 2012, after 60 Minutes did an exposé, “it was perfectly legal for members of Congress to trade on inside information. Not for you, of course. You’d go to jail. But for some strange reason, mystifying to all, that law simply did not apply to Congress.” [Kevin Underhill, Lowering the Bar]
- “Federal Court: Miami Taxi Companies Have ‘No Right To Block Competition’ From Uber” [Nick Sibilla, Forbes]
- “Not even consumer law professors routinely read consumer contracts and disclosures” [Jeff Sovern, CL&P]
- California state agency in charge of Prop 65 enforcement seeks to effectively reverse judge’s recent ruling and exempt naturally occurring acrylamide levels in coffee from need for warning [Cal Biz Lit] Prop 65 listing mechanism requires listing of substances designated by a strictly private organization, spot the problem with that [WLF brief in Monsanto Co. v. Office of Environmental Health Hazard Assessment]
- Yes, those proposals to ban plastic straws are a test run for broader plastic prohibitions [Christian Britschgi, Honolulu Star-Advertiser] Impact on disabled users, for whom metal, bamboo, and paper substitutes often don’t work as well [Allison Shoemaker, The Takeout] Surprising facts about fishing nets [Adam Minter, Bloomberg, earlier]
- “A closely watched climate case is dismissed; Will the others survive?” [Daniel Fisher on dismissal of San Francisco, Oakland cases] Rhode Island files first state lawsuit, cheered by mass tort veteran Sen. Sheldon Whitehouse (D-R.I.) [Spencer Walrath/Energy in Depth, Mike Bastasch/Daily Caller]
- Meanwhile back in Colorado: Denver Post, Gale Norton, other voices criticize Boulder, other municipal climate suits [Rebecca Simons, Energy in Depth, earlier here and here]
- Waters of the United States: time to repeal and replace this unconstitutional rule [Jonathan Wood, The Hill, earlier on WOTUS]
- “What you’re talking about is law enforcement for hire”: at least nine state AG offices “are looking to hire privately funded lawyers to work on environmental litigation through a foundation founded by” nationally ambitious billionaire and former NYC mayor Michael Bloomberg [Mike Bastasch]
“New York City’s attempt to hold five of the world’s biggest oil companies responsible for damage from global warming didn’t seem to impress a judge during oral arguments Wednesday to determine if a lawsuit can proceed.” Judge John F. Keenan grilled the city about its standing to sue, its own investments in the energy sector, and its attempt to dress up an already-lost challenge to emissions as a not-yet-tried challenge to sales of products resulting in emissions.
“Aren’t the plaintiffs using the product?” Keenan asked. “Does the city have clean hands?”
“Yes, the city uses fossil fuels,” [plaintiff’s attorney Matthew] Pava responded.
- “Leave your 13-year-old home alone? Police can take her into custody under Illinois law” [Jeffrey Schwab, Illinois Policy]
- So many stars to sue: Huang v. leading Hollywood names [Kevin Underhill, Lowering the Bar]
- Morgan Spurlock’s claim in 2004’s Super Size Me of eating only McDonald’s food for a month and coming out as a physical wreck with liver damage was one that later researchers failed to replicate; now confessional memoir sheds further doubt on baseline assertions essential to the famous documentary [Phelim McAleer, WSJ]
- If you’ve seen those “1500 missing immigrant kids” stories — and especially if you’ve helped spread them — you might want to check out some of these threads and links [Josie Duffy Rice, Dara Lind, Rich Lowry]
- “Antitrust Enforcement by State Attorney Generals,” Federalist Society podcast with Adam Biegel, Vic Domen, Jennifer Thomson, Jeffrey Oliver, and Ian Conner]
- “The lopsided House vote for treating assaults on cops as federal crimes is a bipartisan portrait in cowardice.” [Jacob Sullum, more, Scott Greenfield, earlier on hate crimes model for “Protect and Serve Act”]
Dusting off rarely used powers held under the Class Action Fairness Act, the U.S. Department of Justice and some state attorneys general have begun to file in opposition to class action settlements. In a case against defendants Ashburn Corporation and online discount wine retailer Wines ‘Til Sold Out (WTSO), which had already drawn objections from CEI’s Ted Frank, DoJ and AGs from 19 states succeeded in getting some settlement terms rewritten, in a deal then denied final approval by the trial judge, who saw additional problems. [Alison Frankel, Reuters; Perry Cooper, Bloomberg Law and more; Nicholas Malfitano, Legal Newsline] For Arizona Attorney General Mark Brnovich, the wine case was the ninth in which his office had intervened against a class settlement it viewed as unfair [Brnovich press release] “If your state’s AG isn’t joining the briefs of the bipartisan coalition led by Arizona defending consumers against class action abuse, you should be asking their office some tough questions.” [@tedfrank on Twitter]
A New York appellate court has upheld an order that New York Attorney General Eric Schneiderman pay counsel fees to the Competitive Enterprise Institute for having resisted required disclosure of the “AGs United for Clean Energy” secrecy agreement [Anna St. John, CEI; Chris White, Daily Caller]
- One-woman false-accusation machine induced Pittsburgh police to file eight criminal cases against couple; one was jailed for six days and the other for six months before she admitted making it up [Paula Reed Ward, Pittsburgh Post-Gazette]
- Regulation is the bane of a great many California small businesses, and that goes for Humboldt County marijuana growers too [David Boaz, Cato]
- One Billy Goat might have cause to regret picking trademark fight with another [Timothy Geigner, TechDirt]
- “Antitrust Jurisprudence Is the Right’s Greatest Legal Success” [John McGinnis, Law and Liberty]
- State Attorney General Election Tracker is a new resource from law firm Cozen O’Connor tracking campaign and election news from state attorney general elections across the country;
- “Iowa judge admits hundreds of his rulings were ghost-written by attorneys” [Clark Kauffman, Des Moines Register]