Posts Tagged ‘regulatory retaliation’

Trump and regulatory retaliation: a letter

Here’s a letter to the editor I sent to the Washington Post that they didn’t publish, responding to a piece by their business columnist Steven Pearlstein.

To the editor:

Steven Pearlstein (Dec. 2) writes with apparent approval of the prospect that President Trump will “make an example of a runaway company by sending in the tax auditors or the OSHA inspectors or cancelling a big government contract. It won’t matter that, two years later, these highly publicized retaliations are thrown out by a federal judge somewhere. Most companies …will find a way to conform to the new norm.”

I was reminded of Paul Farhi’s revealing story in the Post last March about Donald Trump’s prolonged, losing libel suit against reporter Timothy O’Brien. Per that report, Trump “said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

The knowing use of a flimsy legal case to retaliate or intimidate, to inflict punishments or extract concessions a judge would never have ordered, is no more excusable when aimed at other sorts of businesses and professionals than when aimed at the press and reporters. In both cases it is wrong, it sets a bullying example to others, and it endangers the impartial rule of law.

— W.O.

(cross-posted from Cato at Liberty)

Constitutional law roundup

Could the White House be “tyrant-proofed”?

How would one go about “tyrant-proofing” the U.S. presidency, after years in which many were happy to cheer the expansion of White House power so long as the office was held by someone *they* liked? Key point in Ben Wittes’s 3-part series at Lawfare: the hardest to tyrant-proof are not the extraordinary and covert national security powers held by the chief executive, but the everyday powers over the Department of Justice and regulatory agencies [parts one, two, three].

More: Neither Donald Trump nor his progressive opponents have shown themselves loyal to the principle of the rule of law [John McGinnis, Liberty and Law] Nature of the Presidency lends itself to authoritarianism and despite retrenchment under Coolidge and Ike, that’s been the trend for a century or more [Arnold Kling] And quoting William & Mary lawprof Neal Devins: “A President Trump could say, ‘I’m going to use the Obama playbook’ and go pretty far.” [Marc Fisher, Washington Post] And: Tyler Cowen on FDR, McCarthy, the politics of the 1930s-50s, and “our authoritarians” versus “their authoritarians.”

Donald Trump vs. the Washington Post

Do you think Donald Trump is the first U.S. politico to menace publishers over bad coverage? Not even close. My new Cato piece cites a few examples from a depressingly long history. Plus: reprinted at Newsweek.

Bonus: Sen. Sherman Minton (D-Ind.) who put forth the remarkable proposal to make it “a crime to publish anything as a fact anything known to be false,” and who had led a Senate committee’s investigation of the Gannett newspaper chain over its (then) Republican-leaning politics, was later nominated by President Harry Truman to be an associate justice on the U.S. Supreme Court, where he served for seven years and became a leading exponent of judicial deference to the executive branch.

A culture war that allows no concessions

Hey, Denver city councilors: nixing an airport concession to punish Chick-fil-A for its politics is a blatant First Amendment violation [Jonathan Adler, Denver Post; earlier on mayors-vs.-Chick-fil-A here, here (diversity of views within ACLU), here, etc., and my writing elsewhere] In Board of Commissioners, Wabaunsee County v. Umbehr (1996), the Supreme Court found that under the First Amendment, while some balancing tests and exceptions are applicable, the government is not broadly free to withhold business from independent contractors based on disapproval of those contractors’ speech on issues of public concern. Note also the more recent round in which Boston and New York City officials vowed retaliation against Donald Trump after controversial remarks.

July 29 roundup

  • Former NYT Peking correspondent Richard Bernstein, who now co-owns two nail salons, challenges Times blockbuster on prevalence of labor exploitation at NYC salons [New York Review of Books, Elizabeth Nolan Brown and followup, Times rebuttal. More: Bernstein rejoinder]
  • More details on how studios used Mississippi attorney general’s office as cut-out against Google [Mike Masnick, TechDirt, earlier here and here, more on AG Jim Hood]
  • Of course licensing laws “are only there to protect consumers and are enforced in a totally neutral way that has nothing to do with viewpoints or political pull (lol).” [Coyote on Boston mayor’s “not welcome in our town” message to Donald Trump]
  • Speaking of Donald Trump, would his lawyer threaten litigation to intimidate reporter Tim Mak? Only in a totally classy way [Daily Beast, S.E. Cupp/New York Daily News (Cohen, 2011: “I’m going to come at you, grab you by the neck and I’m not going to let you go until I’m finished”), earlier from the vaults on Trump’s use of litigation]
  • Things class-action lawyers sue over: “Beggin’ Strips Don’t Have Enough Bacon” [Reuters, New York Post]
  • As Lois Lerner targeting scandal drags on, time for Congress to impeach IRS officials? [Mike Rappaport, Liberty and Law]
  • Welcome to AFFH-land: Bharara, on behalf of feds, says Westchester County should pay for not squeezing Chappaqua hard enough to approve housing project [Journal-News, earlier here and here]

Wrong opinions? No permits for him!

Boston mayor Martin Walsh gives Donald Trump the Chick-Fil-A rush over his immigration opinions [Boston Herald]:

If Donald Trump ever wants to build a hotel in Boston, he’ll need to apologize for his comments about Mexican immigrants first, the Hub’s mayor said.

“I just don’t agree with him at all,” Boston Mayor Martin J. Walsh told the Herald yesterday. “I think his comments are inappropriate. And if he wanted to build a hotel here, he’d have to make some apologies to people in this country.”

More on the use of permitting, licensing, and other levers of power to punish speech and the exercise of other legal rights at Overlawyered’s all-new regulatory retaliation tag. And no, I’m not exactly thrilled with Mayor Walsh for making me take Trump’s side in an argument.

P.S. Now the NYC sequel, from Mayor Bill de Blasio: no more city contracts for the guy with the wrong opinions [The Hill] And welcome readers from the Foundation for Economic Education, which generously calls this blog “indispensable.”

Fear of regulatory retaliation: ObamaCare and beyond

“According to CNN investigative reporter Drew Griffin, the White House is pressuring trade associations and insurance providers to keep quiet about the changes the Affordable Care Act is creating for some people’s health coverage plans. One industry official told CNN on the record that the White House is applying ‘massive pressure’ to combat the impression that the ACA is resulting in the cancellation of some plans.” [Mediaite]

This is not the first time, or the tenth, I’ve heard about regulated entities feeling pressure to shut up about things that might embarrass the regulators they answer to. These stories did not begin with the Obama administration and I don’t think they’ll end with it. Quite aside from whatever we think of ObamaCare itself, shouldn’t they disturb us? And can anything be done about it? Following media attention to the plight of “whistleblowers” in the workplace, lawmakers have created fairly elaborate procedures intended to identify and remedy cases of retaliation against federal employees who speak up about problems they notice, procedures that in some instances have also been extended to some private-sector employees. Should there be procedures aimed at unearthing and rectifying retaliation against regulated entities, too, when they blow the whistle? Or would that be too easily manipulated by regulated entities in search of profit, revenge, or point-making?

Chicken scraps

  • I joined hosts Mark Newgent and Andrew Langer of RedMaryland on their BlogTalkRadio show Monday evening to talk about the Chick-Fil-A furor, the efforts of politicians in Boston and Chicago to use regulatory permissions to push the company around, and the resulting lessons for political and economic freedom; I went on to discuss my efforts to rally opinion in favor of Maryland’s new same-sex marriage law. You can listen here or here (UStream).
  • Relatedly, here is Ted Frank’s comment: “Every chicken sandwich you don’t buy deprives anti-gay organizations of approximately $0.0001. Probably less than that. Or, you can do what I did and donate some real money that might actually make a difference to [Marylanders for Marriage Equality] to campaign about the gay marriage initiative on the ballot in that state.”
  • “Unwise…won’t work.” The New York Times, oft indignant on other topics, seems rather tepid in criticizing the various city halls’ attacks on speech;
  • No united flock: the restaurants in question, many run by strong-minded independent franchisees, seem to be politically a various bunch themselves.
  • Speaking of non-united flocks, I think the ACLU’s Illinois affiliate may have a thing or two to teach its Massachusetts affiliate. Following the Chicago alderman’s threats to block the restaurant, ACLU of Illinois attorney Adam Schwartz was both forceful and correct: “what the government cannot do is to punish someone for their words. … We believe this is clear cut.” On the other hand, Carol Rose of the ACLU of Massachusetts strangely dismissed the Boston controversy as “little more than a war of words – which is protected by the First Amendment as core speech,” as if the Mayor had merely subjected the sandwich chain to a volley of verbal abuse, without more. Perhaps Ms. Rose wrote the piece while glancing only at Mayor Menino’s official letter to Dan Cathy, which stays generally within “war of words” territory, and was unaware of the July 20 coverage in the Boston Herald, which quoted Menino thus: “If they need licenses in the city, it will be very difficult — unless they open up their policies.” That’s no more a mere “war of words” than “If you run that editorial, I’ll have you arrested.”
  • More coverage: Tom Palmer Cato podcast; Hans Bader of CEI First Amendment analysis; David Boaz, Roger Pilon and Brad Smith at Politico; must-read Glenn Greenwald column; earlier here, etc.
  • And: “By handing Chick-fil-A a valid grievance, Menino and his ilk rallied popular support for the company” [Josh Barro, Boston Globe]
  • Yet more: Pressure group friendly to Chicago alderman filed antidiscrimination complaint based on chain execs’ speech [Volokh; HuffPo (“negotiation”)] Some further thoughts on where the First Amendment’s relevant in the whole affair, and where it isn’t [Jim Huffman, Daily Caller]

When regulators retaliate

The uproar continues, and quite properly so (earlier here and here), over the threats of Boston Mayor Thomas Menino and Chicago alderman Proco (“Joe”) Moreno to exclude the Chick-Fil-A fast-food chain because they disagree (as do I) with some of the views of its owner. Among the latest commentary, the impeccably liberal Boston Globe has sided with the company in an editorial (“which part of the First Amendment does Menino not understand?…A city in which business owners must pass a political litmus test is the antithesis of what the Freedom Trail represents”), as has my libertarian colleague Tom Palmer at Cato (“Mayor Menino is no friend of human rights.”)

The spectacle of a national business being threatened with denial of local licenses because of its views on a national controversy is bad enough. But “don’t offend well-organized groups” is only Rule #2 for a business that regularly needs licenses, approvals and permissions. Rule #1 is “don’t criticize the officials in charge of granting the permissions.” Can you imagine if Mr. Dan Cathy had been quoted in an interview as saying “Boston has a mediocre if not incompetent Mayor, and the Chicago Board of Aldermen is an ethics scandal in continuous session.” How long do you think it would take for his construction permits to get approved then?

Thus it is that relatively few businesses are willing to criticize the agencies that regulate them in any outspoken way (see, e.g.: FDA and pharmaceutical industry, the), or to side with pro-business groups that seriously antagonize many wielders of political power (see, e.g., the recent exodus of corporate members from the American Legislative Exchange Council).

A few weeks ago I noted the case of Maryland’s South Mountain Creamery, which contends through an attorney (though the U.S. Attorney for Maryland denies it) that it was offered less favorable terms in a plea deal because it had talked to the press in statements that wound up garnering bad publicity for the prosecutors. After that item, reader Robert V. wrote in as follows:

Your recent article about the [U.S. Attorney for Maryland] going after the dairy farmers reminded me a case in New York state where the Health Department closed down a nursing home in Rochester. They claim is was because of poor care, the owner claims it was because he spoke out against the DOH.

The state just lost a lawsuit where the jury found the DOH targeted the nursing home operator because he spoke out against them.

According to Democrat and Chronicle reporters Gary Craig and Steve Orr, the jury found state health officials had engaged in a “vendetta” against the nursing home owner:

Beechwood attorneys maintained that an email and document trail showed that Department of Health officials singled out Chambery for retribution because he had sparred with them in the past over regulatory issues. The lawsuit hinged on a Constitutional argument — namely that the state violated Chambery’s First Amendment rights by targeting him for his challenges to their operation.

The Second Circuit panel opinion in 2006 permitting Chambery/ Beechwood’s retaliation claim to go forward is here. It took an extremely long time for the nursing home operators to get their case to a jury; the state closed them down in 1999 and the facility was sold at public auction in 2002.