Topic: Constitution, the Law, and the Courts

“Weaponizing the First Amendment”

Politicians have long known that how you frame a policy issue can determine its fate.

Consider how the term “weaponizing the First Amendment” frames the issue of speech on social media. Kara Swisher, a reporter and opinion writer at the New York Times, wrote yesterday that “Facebook, as well as Twitter and Google’s YouTube, have become the digital arms dealers of the modern age.” She continues,

They have weaponized social media. They have weaponized the First Amendment. They have weaponized civic discourse. And they have weaponized, most of all, politics.

Supreme Court Justice Elena Kagan also recently accused a majority of colleagues of “weaponizing the First Amendment.”

Let’s trace the implications of the term “weaponize” for free speech. The American Heritage Dictionary offers several definitions of “weaponize”:

To supply with weapons or deploy weapons in…

To equip (a missile or other delivery system) with an explosive or other weapon.

To place or mount (an explosive or nuclear device, for example) on a missile or other delivery system.

To produce or refine (a substance or biological agent, for example) for use as a weapon.

To deploy missiles or other delivery systems equipped with weapons.

Notice the connotation of violence? That’s important because in the United States speech is free of the government censor up to direct incitements to violence. The verb “weaponize” invites readers to see some speech on the internet as something like violence. Once that connection is made, censoring the speech becomes more acceptable, perhaps even required.

Kara Swisher’s column seeks to persuade Mark Zuckerberg, not justices on the Supreme Court. Facebook is not covered by the First Amendment. Swisher is inviting Zuckerberg to see some speech on Facebook as a kind of violence. Framed that way, such speech has no place on Facebook or anywhere, really. Zuckerberg can certainly remove it from Facebook; Congress could act if he does not. After all, Congress has the power to punish violence.

So next time you see the term “weaponize” think about the implications of the word for other people’s speech (it’s always other people’s speech). For those people whose speech is being equated with violence, the implications could be dire.

Facebook, Russia and Americans

This post follows my post yesterday about Facebook taking down fake accounts that “helped promote more than three dozen events in the last 15 months, most of them protesting the policies of President Donald Trump or promoting left-leaning causes.” The posts, thought to be supported by Russian operatives, “sought to work alongside legitimate groups organizing rallies and protests in the U.S.” 

So this is not just about the Russians. Americans also associated with the pages for political reasons. One page drew 84,000 likes. Other similar groups, supported by Americans, associated with, and spoke with the pages. (Their queries were not answered). 

As I wrote yesterday, Facebook was well within their rights to take down the pages. They did so because the accounts were fake and thus violated their community standards. Facebook would have had the right to take the pages down because of the Russian support or for “protesting the policies of Donald Trump or promoting left-leaning causes.” But to have the right is not the same as exercising it. Facebook wisely stayed away from the Russian issue and of course, did not remove the pages because of their content. 

But a fact remains: Facebook deprived Americans of their ability to associate with or speak with others for political purposes. It’s not a good look even though the neutral application of community standards does justify the takedown. 

Set Russia aside for a moment and consider the American part of the story. The deleted pages said things some Americans wanted to hear and supported. Members of Congress might find such speech “divisive” or “disinformation.” Apparently some Americans disagreed: they presumably saw the speech as informative and helpful.

In the United States, by culture and by law, we have free speech so people can learn about and evaluate politics and much else. The people who saw the deleted pages seemed to have engaged and assessed the material. “It was the truth about our people,” Victor Perez, a construction worker in Salt Lake City said of a deleted page that, the Wall Street Journal reports, “used divisive memes to promote Native American and Hispanic culture.” 

Yet the same article quotes experts who say allowing such pages will push the Victor Perezs of the world toward extremism while undercutting trust in “legitimate political activists.” In other words, speech online needs to be managed or really bad things will happen. 

But we have such a management system already. 

Individuals have the right and responsibility to inform themselves critically about politics and much else. They have the right to associate with one another to discuss ideas and to persuade others. They can reject bad ideas. Indeed, we trust that they will. Do people actually believe in these ideals? 

The Constitution prevents the government from improving social outcomes by preventing speech and association. Facebook has a right to govern its platform, but we might expect they will only remove users who violate neutral rules. After all, Mark Zuckerberg endorses the American view of free speech

The rest of us should stop expecting internet intermediaries like Facebook to be guardians of truth and wholesome speech.

The Facebook Takedown

Since the 2016 election Facebook has faced several problems, some related to the election, some not. In 2016 Russian agents bought ads on Facebook and posted messages related to the election. Facebook has been blamed for not preventing the Russians from doing this. Many people may believe the Russian efforts led to Donald Trump’s election. That view remains unproven and highly implausible.

Beset by other problems, Facebook seeks to avoid a replay of 2016 after the 2018 elections. Yesterday Facebook tried to take the offensive by removing 32 false pages and profiles from its platform; the pages had 16,000 to 18,000 followers, all connected to an upcoming event “No Unite the Right 2 – DC”.  

Facebook stated the pages engaged in “coordinated inauthentic behavior [which] is not allowed on Facebook because we don’t want people or organizations creating networks of accounts to mislead others about who they are, or what they’re doing.” Facebook does not allow anonymity on its platform at least in the United States. They appear to be enforcing their community standards.

Most people might not worry too much about what Facebook did. The speech at issue was said to be divisive disinformation supported by a traditional adversary of the United States. Who worries about the speech of hostile foreigners? Still a reasonable person might be concerned for other reasons.

The source of the Facebook pages, not the company’s policies, seemed of most interest in Washington. Sen. Mark Warner said that “the Kremlin” had exploited Facebook “to sow division and spread disinformation.” Warner’s confidence seems unwarranted. The Washington Post reported that Facebook “couldn’t tie the activity to Russia.” Facebook’s chief security officer called the Russian link “interesting but not determinant.” The company did say “the profiles shared a pattern of behavior with the [2016] Russian disinformation campaign.”

The takedown also affected some Americans. Ars Technica said the event on the removed page “attracted a lot of organic support, including the recruitment of legitimate Page admins to join and advertise the effort.” Perhaps Russian operatives have no protections for their speech. But the Americans affected by the takedown do or at least would have had such protections if the government had ordered Facebook to take down the page in question.

But the source of the speech was not the only problem. As noted earlier, Sen. Warner thought two kinds of speech deserved suppression: divisive speech and disinformation. But, as a member of Congress, he cannot act on that belief. Courts almost always prevent public officials from discriminating against speech based on its content. For example, the First Amendment protects “abusive invective” related to “race, color, creed, religion or gender.” The Supreme Court has also said false statements are not an exception to the First Amendment.

In contrast, Facebook can remove speech from their private forum. The First Amendment does not govern their actions. But Facebook’s freedom in this regard might one day threaten everyone else’s.

Here’s how. Facebook might have removed the page for purely business reasons. Or they have acted more or less as agents of the federal government. The New York Times reported that Sen. Warner “has exerted intense pressure on the social media companies.” His colleague Sen. Diane Feinstein told social media companies last year “You’ve created these platforms, and now they are being misused, and you have to be the ones to do something about it. Or we will.” Free speech would fare poorly if social media were both free of constitutional constraints and effectively under the thumb of public officials.

Facebook officials may see business reasons to resist Russian efforts on their platform, a goal served by enforcing existing rules. At the same time Facebook wishes to be seen by Congress as responsive to congressional bullying. But being too responsive would only encourage more threats later, and in general, giving elected officials even partial control over your business is not a good idea. So Facebook is both careful about Russian influence and responsive to congressional concerns, a good citizen rather than an enthusiastic conscript in defense of the nation.

Facebook’s efforts may yet keep Congress at a safe distance. But members of Congress may be learning they can get they want from the tech companies. In the future federal officials free of constitutional constraints may indirectly but effectively decide the meaning of “divisive speech” and “disinformation” on Facebook and elsewhere. Their definitions would be unlikely to affect only the speech of America’s adversaries.

Judge Issues Temporary Restraining Order Against Blueprints for Homemade Muskets

Late yesterday, U.S. District Court Judge Robert Lasnik issued a temporary restraining order (TRO) blocking the release of design files for 3D-printed guns. The order comes in response to a lawsuit filed by a number of state attorneys general who claim that the Trump administration acted unlawfully in reaching a settlement in a lawsuit brought by Defense Distributed, a company that produces digital blueprints for 3D-printed guns, and the Second Amendment Foundation. Judge Lasnik found that states were likely to suffer irreparable harm—the standard for a TRO—if the digital blueprints became distributable via a website, and he felt that the situation was such an emergency that the order was issued within a day of when the suit was filed.

This is a deeply silly order. People have been making guns out of various objects for centuries. Watch this video of someone making a shotgun out of two pieces of commonly available tubing.

Zip guns like those have been used for centuries. They’re easy to make and easy to learn how to make. And, as long as you follow certain guidelines (such as not making a machine gun), such guns are perfectly legal to make. As the ATF website says: “No, a license is not required to make a firearm solely for personal use.”

Moreover, distributing plans for zip guns is a form of speech protected by the First Amendment, as it should be. Here’s a website telling you how to make one, and here’s a YouTube video telling you how to make one in less than two minutes. Judge Lasnik’s TRO is the equivalent of shutting down those websites and videos because telling people how to make zip guns creates an “irreparable harm.”

3D-printed guns are little better than those zip guns. The Libertor is a one-shot pistol that, if it works, fires a low-powered bullet with an effective range of maybe 20 feet. More often, it might just explode in your hand. As one commentator writes,

The Liberator’s bullet emerges going very slowly and wobbling or tumbling due to lack of spin. It might go almost anywhere, though not very far, and is unlikely to do much damage to anything it manages to hit. It’s a bit better than holding up a cartridge in a pair of pliers and banging the cap with a centrepunch or similar, but not much.

The Songbird is another design that works slightly better, but still wouldn’t be your first choice for doing anything except demonstrating to your friends that you built a gun that doesn’t blow up in your hand.

These guns are little better than a musket or a muzzle-loading flintlock pistol, which anyone can purchase without a background check. Yes, that’s right, criminals all over the country can purchase something like this replica English Civil War cavalry pistol and wreak havoc. Sure, they’ll need to get some black powder, some wadding, and some musket balls, but those are widely available, especially in the internet age. Or, if they want more than one shot, they can purchase this 1860 model Colt revolver replica, also without a background check, which would certainly be good enough to rob a store. So why aren’t people constantly robbing stores with the guns of Jesse James or Captain Jack Sparrow? Because it would be stupid and more expensive than purchasing this professionally manufactured Hi-Point 916 for $149.00. And if someone is prohibited from purchasing a gun from a licensed dealer, perhaps because they’re a convicted felon, they can acquire a gun in the myriad ways criminals acquire guns. No street-level gun dealer is waiting for the TRO to be lifted so he can start flooding the streets with in-demand single-shot plastic pistols. The concept is too silly to contemplate.

The idea that allowing websites to distribute digital blueprints for 3D-printed guns creates “irreparable harm” to the states is as silly as saying allowing people to distribute plans for zip guns does “irreparable harm.” The fear created by the phrase “3D-printed guns” should not be allowed to override common sense.

New Lawsuit Would Increase Legal Immigration

A prominent law firm—Kurzban, Kurzban, Weinger, Tetzeli and Pratt, P.A.—filed a lawsuit Wednesday that has the potential to reshape legal immigration in a significant way. I submitted an expert affidavit in support of the lawsuit, which the lawyers cite in their motion for a preliminary injunction. The suit challenges the government’s unlawful practice of counting spouses and minor children against the green card limit for EB-5 investors—an issue I have written extensively about in prior posts.  

The EB-5 program allows almost 10,000 foreign nationals to receive permanent residence (i.e. a green card) if they invest up to $1 million in a new business that creates 10 jobs. In fiscal year 2014, the government announced that investors reached the annual quota for the first time, and a large backlog has developed. However, the government has chosen to reduce the quota by the number of spouses and children of the investors.

As Table 1 shows, 64.4 percent of those who received permanent residence under the program from 2014 to 2017 were the spouses and children of the investors. Thus, this practice has effectively reduced the quota for investors by almost two thirds.

Table 1: EB-5 Investors, Spouses, and Children Receiving Legal Permanent Residence

 

2014

2015

2016

2017

Totals

Spouses

2,521

2,424

2,229

2,296*

9,470

Share Spouses

23.5%

23.8%

22.6%

23.3%*

23.3%

Children

4,267

4,159

4,204

4,048*

16,678

Share Children

39.8%

40.8%

42.6%

41.1%*

41.1%

Derivatives

6,788

6,583

6,433

6,345*

26,149

Share Derivatives

63.3%

64.6%

65.2%

64.4%*

64.4%

Principals

3,935

3,605

3,430

3,510*

14,480

Share Principals

36.7%

35.4%

34.8%

35.6%*

35.6%

Total

10,723

10,188

9,863

9,855

40,629

Sources: I-526 Principals and derivatives from Department of Homeland Security, 2014, 2015, 2016, 2017; *2017 derivative-primary shares estimated based on the average during the prior three years

As outlined in the complaint and motion for a preliminary injunction, this practice has no basis in law. Subsection (b)(5) of section 203 of the Immigration and Nationality Act specifies:

Visas [i.e. green cards] shall be made available, in a number not to exceed 7.1 percent [i.e. 9,940] of such worldwide level [i.e. 140,000], to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise….

Subsection (b)(5) provides no green cards whatsoever to spouses and children of investors. This means that all of those visas should be available to the investors themselves. Only later in a separate provision—subsection (d) of section 203—are green cards provided for spouses and minor children of those immigrants:

A spouse or child… shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

Nothing in this provision applies the EB-5 cap under subsection (b)(5) or any other cap to the spouses and minor children. The government cannot simply create a quota where Congress has not provided one. Indeed, as I’ve written before, members of Congress in 1990—when the EB-5 program was created—explicitly envisioned spouses and children not counting against the quota. They made exact predictions of how much investment would be made based on the belief that fully 10,000 investors would enter under the new law.

Not only that, but the requirement that spouses and children receive the “same order of consideration” requires that they not be subject to the cap. The law defines “order of consideration” as “immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition on behalf each such immigrant is filed…” In other words, the line is entirely determined by the date when the principal applicants—the investors—file their petitions “under subsection (b)”. The derivatives—spouses and minor children—are not part of the “order” at all. They get the same spot in line as their spouse or parent.

Obviously, this lawsuit would be a big win for investors and their families if it succeeds. Based on my calculations in my affidavit, nearly half of those involved in this lawsuit alone will have children reach adulthood during this time and lose their eligibility. New applicants applying this year face nearly 16 years to wait if they applied this year, meaning that anyone with a child over the age of 5 will never be able to immigrate.

As importantly, this legal analysis applies with equal force to all the other major immigration categories—family-sponsored, employer-sponsored, and diversity lottery winners—so a good outcome in this case would set a precedent that immigrants in those categories could use to have their spouses and children excluded from the quotas as well. This outcome would immediately boost immigration levels by about 40 percent, and over time, as new immigrants enter and are able to sponsor their parents after becoming citizens, this share would grow even further.

Destroying Property Value by Regulation Is Just as Bad as Using Eminent Domain

Nearly a century has passed since Justice Oliver Wendell Holmes’s legendary proclamation that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” But that statement did little to actually clarify when the Fifth Amendment’s protections against uncompensated takings of property applies to government action that regulates away the use of land rather than physically taking it through eminent domain.

Attempting to clear up that confusion, the Supreme Court 40 years ago handed down the now infamous Penn Central decision (involving the historic qualities of NYC’s Penn Central Station). Penn Central requires courts to go through a balancing test based on (1) the economic impact of the regulation, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the nature or character of the government action. Unfortunately, that’s a lot of words to give very little direction, so property owners, regulators, lawyers, and lower courts have been clamoring for meaningful guidance on those fact-bound, ad-hoc inquiries ever since.

As the story of Simone and Lyder Johnson illustrates, the Supreme Court needs to provide true guiding principles on regulatory takings. The Johnsons were drawn to Ponce Inlet, Florida, where they bought land and made plans to construct their dream home. Sensing that the town may be able to benefit, Ponce Inlet persuaded the Johnsons to expand their plans into “a delightful mixed-use waterfront development.”

Over several years, the Johnsons bought additional parcels while working hand-in-hand with the town. They were amenable to providing everything the town asked for, like a nature preserve and boat slip. After millions of dollars were spent, the town changed its mind, halted all work, denied permits, and went so far as to pass legislation prohibiting all development on the Johnsons’ property.

The Johnsons sued, claiming that Ponce Inlet’s actions amounted to a compensable taking. The state trial court agreed, but the appellate court reversed and sent the case back to determine if a taking had occurred based on the economic impact on the “parcel as a whole” (meaning all the Johnsons’ property, rather than the specific parcels the trial court had found to be left devoid of economic value).

The Johnsons—through companies collectively known as Pacetta—have now asked the U.S. Supreme Court to review their case. Cato, along with the NFIB Small Business Legal Center, filed a brief supporting that petition. The Supreme Court has consistently referred to the Penn Central factors as the North Star of regulatory-takings law but has done little to clarify the meaning of each factor or how they should be weighed relative to one another.

What we do know is that property owners almost always lose under Penn Central. Under that nebulous test, lower courts are free to use those malleable factors to find that what government is attempting to achieve through its regulations is so important that a taking has not occurred, regardless of the regulation’s economic impact on the owner or the extent of its interference with invest-backed expectations. Likewise, lower courts frequently find that the economic impact of a regulation is not quite drastic enough—despite destroying as much as 95% of a property’s value—to find that a taking occurred, despite the extent of interference with investment-backed expectations.

The Court should take up Pacetta v. Ponce Inlet and use it as an opportunity to clarify at least one aspect of property law: that when one of Penn Central’s three ad-hoc inquiries tips strongly in favor of the owner, a taking has occurred and compensation is due.

Qualified Immunity Meets #MeToo: Prison Official Says Sexual Abuse Didn’t Violate “Clearly Established Law”

When Katie Sherman was nineteen years old, she was incarcerated at Trumbull County jail in Ohio, for about five months. During that time, Charles E. Drennen worked as a corrections officer in the female pod of the jail where she was housed. Several female inmates had filed complaints that they’d been harassed and threatened by Drennen, who had a reputation for glaring at the inmates while they were sleeping, but Drennen began focusing on Ms. Sherman in particular. He often made highly sexual comments to her, and on at least four or five occasions, ordered her to expose herself to him, and to touch herself sexually in front of him and other inmates. Ms. Sherman – again, then a nineteen-year-old girl – complied because she was intimidated by Drennen. She eventually attempted to file a complaint against him (even though complaints were not anonymous), but she was never given the complaint form she requested. 

After she was released, Ms. Sherman - along with Michele Rafferty, her cellmate - filed a Section 1983 lawsuit, asserting (amongst many other claims) that Drennen’s sexual abuse violated her Eighth Amendment right to be free from cruel and unusual punishment. Drennen moved for summary judgment, arguing that this was “only” sexual harassment, and that because he did not physically touch Ms. Sherman himself, he hadn’t violated her constitutional rights. The district court correctly rejected this perverse “no touching” safe harbor for sexual abuse, and noted that “the facts, viewed in a light most favorable to Plaintiffs, demonstrate that Sherman only masturbated and revealed her breasts due to Drennen’s control over her.” The court likewise rejected Drennen’s claim for qualified immunity, holding that “[i]t is clearly established that sexual abuse is impermissible” and that “[a]ny reasonable prison official would understand that he has no authority to command an inmate to engage in sexual acts.”

Under normal principles of civil litigation, Ms. Sherman would then have been entitled to a jury trial on her civil rights claims. But the doctrine of qualified immunity gives defendants a one-side litigation advantage in the form of interlocutory appeals - that is, if a defendant is denied qualified immunity, they can immediately appeal that decision, before the case even goes to trial. Mr. Drennen has done exactly that, so the question of whether he should receive qualified immunity is now being briefed before the Sixth Circuit. The Cato Institute has therefore filed an amicus brief, urging the court to affirm the denial of immunity, but also to address the legal infirmities with the doctrine in general.

As I’ve  discussed  several  times now, qualified immunity was essentially invented out of whole cloth by the Supreme Court over the last half century. The text of our primary civil rights statute – usually called “Section 1983” after its place in the federal code – makes no mention of any immunity, and the common-law background against which it was adopted did not include any freestanding defense for public officials who acted unlawfully; on the contrary, the historical rule was that public officials were strictly liable for constitutional violations. In essence, qualified immunity has become nothing more than a “freewheeling policy choice” by the Court, at odds with Congress’s judgment in enacting Section 1983.