“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.”
I joined host Newel Normand to talk federalism, the Constitution and the pandemic on New Orleans’s WWL on Thursday. You can listen here.
You can watch yesterday’s Cato online panel on COVID-19 and the Constitution with Ilya Shapiro, Trevor Burrus, and me.
Also at Cato, my latest Pandemics and Power notebook is on NYC Mayor Bill de Blasio’s scheme to draft health care professionals nationwide, feds’ seizures of medical equipment, any excuse to ban vaping, and a scene from the life of a great vaccinologist. And while we’re at it, here’s Deirdre McCloskey with some relevant thoughts: “Coronavirus must not rob us of our liberties forever.”
Online Friday at 1-2 pm Eastern: a Cato panel on the pandemic and the Constitution, with Ilya Shapiro, Trevor Burrus and me. Register here and send in questions for us if you like.
- I join Caleb Brown at the Cato Daily Podcast to talk about federalism and the lead role of the states in applying pandemic-related police power. See also Chris Edwards, Cato;
- First John Tamny disagreed with my observation in the WSJ that the Constitution allows states, not the federal government, the power to make lockdown decisions during epidemic outbreaks. Now Roger Pilon weighs in and settles it [Real Clear Markets]
- “Contagion and the Right to Travel” [Anthony Michael Kreis, Harvard Law Review Blog] Lawsuits challenging lockdown orders, sometimes on constitutional grounds, are tried, but the courts are highly deferential during emergencies of this sort [Neil MacFarquhar, New York Times] “Divided Pennsylvania Supreme Court: Governor can shut down firearms dealers during Coronavirus emergency” [Josh Blackman]
- “Now the ex-fiancé and his paramour are using Illinois’s ‘revenge porn’ law to punish her for speaking, and the state is happily obliging.” A First Amendment botch that SCOTUS should correct [Ilya Shapiro and Michael Collins on Cato Institute brief]
- “Reviving the Contract Clause: An Acid Test for Originalism” [John McGinnis]
- “Indiana Supreme Court Applies Eighth Amendment to Curb ‘Oppressive’ Asset Forfeitures” [Ilya Somin in November; earlier on Timbs v. Indiana here and here]
I joined hosts Michael Sanderson and Kevin Kinnally on the Maryland Association of Counties’ popular Conduit Street Podcast, which has a large circulation among civically-minded Marylanders and national reach as well. Our talk ranged widely over legal and governmental aspects of the COVID-19 pandemic emergency, including government’s emergency powers, and how they sometimes don’t go away when the emergency ends; the role of the courts, both during the emergency and after it ends, in enforcing and restoring constitutional norms; contrasts between the state and federal handling of the crisis; and the opportunity this provides (and has already provided) to re-examine the scope of regulation, which has been cut back in many areas so as to allow vigorous private sector response in areas like medical care, delivery logistics, and remote provision of services.
On a special bonus episode of the Conduit Street Podcast, Walter Olson joins Kevin Kinnally and Michael Sanderson to examine the role of state and local emergency powers in the fight against the COVID-19 pandemic.
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. a libertarian think tank in Washington, D.C. A resident of Frederick County, Olson recently served on the Frederick County Charter Review Commission. Olson has also served as the co-chair of [the Maryland Redistricting Reform Commission, created in] 2015.
MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.
You can listen to previous episodes of the Conduit Street Podcast on our website.
You can listen and download here (40:04). [cross-posted from Free State Notes] Related: Nashville radio host Brian Wilson did an extended riff on my Wall Street Journal op-ed on federalism and the virus emergency; you can listen here. And I appeared on screen as a source for a Sinclair Broadcasting TV report (see 1:45+).
“Presidential candidate Elizabeth Warren wants to break up big tech firms and impose new regulation on firms with high revenues. Walter Olson discusses what that might look like in practice.” I join Caleb Brown for a Cato podcast on themes outlined in this space last week. Related: Geoffrey Manne and Alec Stapp last March on Warren’s plans for tech and antitrust (“To Warren, our most dynamic and innovative companies constitute a problem that needs solving.”)
Bonus: earlier posts on Warren and her economic plans including white-collar prosecution, exit tax, regulation of private equity, and corporate governance first, second, third posts as well as political spending and labor co-determination.
- I was part of an informative panel discussion of “Climate Change Litigation and Public Nuisance Lawsuits” organized by the Rule of Law Defense Fund [watch here] Podcast and transcript of an October update on state and municipal climate litigation with Boyden Gray [Federalist Society] And because it’s still relevant, my 2007 WSJ piece (paywalled) on how contingency fees for representing public-sector plaintiffs are an ethical travesty;
- New York securities case against ExxonMobil goes to trial [Daniel Fisher, Legal Newsline; earlier] At last minute, NY Attorney General Letitia James, successor to Eric Schneiderman, drops the two counts requiring proof of intent, which the state had earlier deployed to accuse Exxon of deliberate misrepresentation. Still in play is the state’s unique Martin Act, which allows finding fraud without proof of intent [Nicholas Kusnetz, Inside Climate News]
- Ninth Circuit panel hears “children’s” climate case, Juliana v. U.S. [Federalist Society podcast with James May, Damien Schiff, and Jonathan Adler; related commentary, James Coleman]
- Bernie Sanders doesn’t really need legal arguments for retroactive criminal prosecutions if he’s got Jacobin on his side, right?
- “Lawyers are unleashing a flurry of lawsuits to step up the fight against climate change” [Darlene Ricker, ABA Journal]
- Who’s backing Extinction Rebellion, the lawbreaking group that blocked intersections in Washington, D.C. and elsewhere this fall? “The answer, in part, is the scions of some of America’s most famous families, including the Kennedys and the Gettys.” [John Schwartz, New York Times]
I joined the Lars Larson Show on Tuesday to talk about the Supreme Court’s ruling allowing a suit against Remington over the Sandy Hook massacre to proceed for now [earlier]. The current suit, as green-lighted by the Connecticut Supreme Court earlier this year over a dissent from three of its seven justices, claims that Remington violated the broad provisions on deceptive marketing of a state consumer protection law, the Connecticut Unfair Trade Practices Act (CUTPA). It should be emphasized that the case is still at an early stage and that the Justices will probably be presented with further opportunities to pronounce on its compatibility with the federal law that pre-empts most gun suits, the Protection of Lawful Commerce in Arms Act (PLCAA).
I’ve got a new post up at Cato at Liberty taking a more extended look at the ruling and what lies ahead for gunmaker litigation.