Topic: Criminal Law and Civil Liberties

When a Cop Says “Stop!” It’s Not a Request

In the foundational criminal-procedure case of People v. De Bour (1976), the New York Court of Appeals (the state’s highest court) held that a police officer may approach a private citizen on the street to request information as long as there is “some articulable reason sufficient to justify the police action which was undertaken”—which need not rise to an indication of criminal activity. De Bour distinguished this “level one” encounter from more intrusive police actions, such as (1) a “common-law inquiry” of individuals, which must be supported by a “founded suspicion that criminality is afoot,” (2) a forcible stop of an individual that must be supported by reasonable suspicion that person was involved in a crime, and (3) an arrest of an individual, which must be supported by probable cause.

This framework remains in effect, but with one wrinkle: in 1994, the Court of Appeals in People v. Reyes held that an officer’s shouted command to “stop!” is a level-one encounter. The conviction of one Ali Cisse depends on the continued validity of Reyes.

On the night of his arrest, Mr. Cisse, then 17, was walking with three friends in Manhattan. A uniformed officer directed Cisse to stop, “hold up and turn around.” Cisse complied, and the officer noticed an L-shaped bulge in Cisse’s clothing that the officer identified as a firearm. The officer arrested Cisse and seized the firearm and other evidence, which placed Mr. Cisse near the scene of a robbery. The trial court denied Cisse’s motion to suppress the evidence and, relying on Reyes, the state appellate court affirmed.

Yet, the hallmark of a level-one encounter is that it is not “threatening” or “intimidating.” Mr. Cisse thus filed a petition with the Court of Appeals to argue that the police officer performed a “common-law inquiry,” which is a more intrusive interaction than authorized in that circumstance. He maintains that the lower courts misapplied the De Bour framework by relying on Reyes.

Cato and the Brennan Center for Justice have joined together on an amicus brief in support of Cisse. We ask the court to overrule Reyes and hold that an officer’s command to “stop” represents a level-two encounter under De Bour. Twenty-five years of developments in both the law and social science show that a police command to “stop” is more than a mere request for information. Nationwide and state-level research confirms that citizens (including New Yorkers) find police commands to be “threatening” and “intimidating.” Reports show that officers frequently resort to physical force when a subject does not immediately respond to verbal commands, even where the subject poses no imminent threat to the officer or others.

For a level-one encounter, we argue that the “right to walk away” must be restored. Citizens have a right to walk away from police encounters unless they have been seized. “Flight” may give rise to reasonable suspicion when “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity”. The problem lies is the fact that “flight” is often indistinguishable from a suspect’s refusal to abide by a command to stop. To reinstate the right to walk away, the court should require the police to have a basic level of suspicion before they issue a command to stop. 

The Politics of Protecting Hate Speech

Let’s start with some counterfactual history. 

You may find it a waste of time, I think, however, it’s relevant to ask how broad and robust the protection of free speech would be in the US if it hadn’t been for civil rights organizations like the American Civil Liberties Union, and later Jewish organizations and the NAACP? 

Would a First Amendment doctrine based on viewpoint neutrality and the emergency principle have developed in the US? Or would the country have seen a development similar to Europe where hate speech – however it is defined - is criminalized and evil words to a far higher degree are seen as evil actions and therefore, cannot count on constitutional protection?   

Without holding Samuel Walker, professor emeritus of criminal justice at the University of Nebraska, responsible for my interpretation, I think it’s fair to conclude after having read his prolific and still extremely topical book Hate Speech: The History of an American Controversy (1994) that the American courts’ libertarian interpretation of the First Amendment and the widespread support for an uninhibited, robust and wide-open public space in the US would not have materialized without advocacy groups committed to free speech. 

At a time when the support for free speech is sliding and people on the left and on the right are more than willing to shut down their opponents it’s worth revisiting professor Walker’s story of why hate speech is protected in the US and why the current First Amendment doctrine has played a crucial and positive role in creating the necessary environment for tolerance and inclusion of groups that for decades if not centuries were not seen as belonging to American society. There was nothing inevitable about this development. American law and policy could have gone in a very different direction. 

A banal though fundamental point is that good ideas do not defeat bad ideas in and by themselves. They only prevail if there are groups and individuals willing to explain and defend them. That’s basically the reason why the US free speech tradition is different from the European one in spite of the commitment to democracy on both sides of the Atlantic. Ideas have no force in the world without advocates. In twentieth-century Europe there were no civil rights organizations with a position similar to the ACLU’s on free speech. 

It’s a common fallacy to think that the US from the very beginning was exceptional when it comes to the protection of free speech; that the First Amendment from the foundation of the republic meant that Americans enjoyed more or less the same legal right to freedom of expression as they do today. 

As a matter of fact, for the first 150 years the US wasn’t that different from the rest of the world. A few years after the adoption of the Bill of Rights (1791) Congress passed the Alien and Sedition Acts that among other things criminalized making false statements that were critical of the government. President Adams used the law to imprison his political adversaries. In general, the US federal and local governments introduced the same arguments and the same kind of legal instruments as other states around the world to silence challenges to the status quo, i.e. national security, blasphemy, obscenity, offensiveness, protection of the public order and morals and safeguarding the social peace. 

As late as 1928, a man was convicted for blasphemy in Little Rock, Arkansas. He put up a poster in a shop window with the words: ”Evolution is true”, ”the Bible is a lie”, ”God is a ghost”. During World War I Socialists received long prison terms for protesting the draft. Attacks from the right on the ACLU in the 1920s denounced free speech as ”un-American” because of the organization’s defense of unions and left-wing groups. In fact, anything that might have the tendency to cause social harm could be restricted including criticism of the government during times of war, discussion of birth control, and any literature with a sexual content. Government officials were allowed to ban speakers and groups they did not like. They issued injunctions against picket lines, Communists, Socialists, union meetings, and shut down debates about strikes and unions.     

The reality of American history is that meaningful protection of free speech and other individual rights has emerged only since the 1940s. The legal climate only began to change in 1931 when the Supreme Court upheld First Amendment rights of a Communist and of the publisher of an anti-Semitic newspaper – the first cases when speech deemed dangerous and offensive by the majority received constitutional protection and a vindication of the ACLU’s line. Until the 1960s free speech was considered a radical and dangerous idea. As Walker puts it: ”What millions of Americans think of as ancients and hallowed rights are of very recent origin.” 

The hate speech issue first arose in the 1920s with political and legal debates over whether to restrict offensive racial and religious speech. The same two arguments for restricting speech were repeated over and over again: First, that a particular group like the KKK or the Nazis represent a special case and a limited exception to free speech protection should be made for it, and second, that a free and democratic society has an obligation to restrict the activities of anti-democratic groups. In most European countries these arguments carried the day. Laws restricting hate speech and anti-democratic groups were adopted. 

The ACLU refuted both arguments, and their line of defense for hate speech as free speech was adopted by the courts and today serves as the foundation of American public policy and the First Amendment doctrine. The Supreme Court’s decisions were shaped by the advocacy groups that brought cases before it. The ACLU filed briefs in all the major cases through which the Supreme Court created the body of the current First Amendment law.   

The ACLU’s arguments against hate speech provisions were summed up in the 1934 statement Shall We Defend the Nazis in America? It began by challenging the argument that the Nazis with a reference to the suppression of civil liberties in Germany after Hitler’s power grab in 1933 represented a special case and should be exempted from First Amendment protection. The ACLU insisted that the rights of everybody have to be protected and defended independent of the content of their beliefs. Once you accept exemptions to free speech you cannot be sure when they will be used against yourself. In fact, the public order act that was adopted in the UK in 1936 to target Fascists was used to imprison more anti-Fascists than Fascists. Therefore, according to the ACLU, the right of Communists and Socialists are inextricably bound up with the rights of Nazis. 

This is in essence of viewpoint neutrality, the first principle on which the modern First Amendment doctrine is built. The other, the emergency principle, implies that speech has to entail a clear and present danger if it is to be exempted from First Amendment protection. The ACLU made the case for the clear and present danger test by making the point, that nobody can say for sure what speech will lead to violence. 

The ACLU and its allies knew from experience that one has to be very careful calling for banning offensive speech. First, if you are in the business of fighting for social change then most defenders of the status quo will perceive your speech as offensive. Second, terms like offensive speech are very elastic and can easily be used to target yourself the moment your opponents will have the power to move against you. 

Finally, it’s worth pointing out that the libertarian idea of individual rights has been driving the modern First Amendment doctrine. The ACLU early on came to the conclusion that the advancement of the rights of a minority or any other group were best achieved through the expansion of individual rights. That’s the reason why civil rights groups in the US abandoned group libel litigation to defend minorities against racism. They saw it as a threat to their larger goal of achieving equal rights. 

This libertarian idea lies at the heart of the conceptual difference on free speech between the US and Europe. The same can be said of the concept of tolerance. In America, tolerance is of the individual rather than the group, and it is more radical than what is practiced in the European nation states. In the immigrant American society, as Michael Walzer notes, the state is not committed to one group over another; it’s neutral. Government is not an arbiter of taste, and citizens must learn to tolerate one another as individuals, even within the group. This concept of tolerance is the consequence of the First Amendment doctrine’s focus on individual rights. 

Professor Walker concludes that “protection of free speech has helped to ensure the participation of different groups in American society, particularly the powerless.” He insists that free speech has promoted inclusion in contemporary society. Today, this point of view is not shared by those on college campuses who argue that hate speech must be prohibited in order to achieve the inclusion of the historical victims of discrimination. But the history of the hate speech issue, as presented in Walker’s book, supports just the opposite argument. “The inclusion of the powerless and the historical victims of discrimination has been aided (not fully achieved, of course) by the broadest content-neutral protection of offensive speech.”  

U.S. Attorney for Massachusetts Doubles Down on Misguided Prescription Opioid Policy

Conventional wisdom argues that the opioid epidemic has resulted from excessive opioid prescribing, but the evidence shows just the opposite. Restrictions on opioid prescribing have pushed opioid users into the black market, where they overdose on illicit fentanyl, not prescription opioids (mainly because they cannot assess potency).   Reason’s Jacob Sullum has a nice recent piece on this point.

Yet policymakers keep doubling down on the conventional wisdom.  The U.S. Attorney for Massachusetts, Andrew Lelling, has just anounced new scrutiny of doctors who prescribe opioids:

US Attorney Andrew E. Lelling has sent letters to “a number of medical professionals” alerting them that their opioid prescribing practices “have been identified as a source of concern.”

In a statement released Thursday, Lelling said that the professionals who received the warning had prescribed opioids to a patient within 60 days of that patient’s death or to a patient who subsequently died from an opioid overdose.

The letters inform the professionals that it’s illegal to prescribe opioids “without a legitimate medical purpose, substantially in excess of the needs of the patient, or outside the usual course of professional practice.” It acknowledges that the prescriptions may have been medically appropriate, however.

Such actions will scare medicial professionals into even less prescribing, force more patients into the black market, and increase the frequency of opioids overdoses.

MPD’s NEAR Act Implementation: The Wrong Way to Do the Right Thing

In 2016, the D.C. City Council unanimously passed the Neighborhood Engagement Achieves Results (NEAR) Act, partly based on a pilot program in Richmond, California, that sought to implement a holistic approach to crime fighting. Recently, the ACLU of the District of Columbia (ACLU DC) filed suit against the Metropolitan Police Department (MPD) to implement the component of the NEAR Act that requires police to track demographic and other relevant data of individuals who police stop and frisk for weapons or otherwise search. MPD Chief Peter Newsham has admitted the department has not yet been able to comply with the law’s data collection requirement and recently a federal judge indicated that he was preparing an injunction in ACLU DC’s favor to compel the department to produce and publish the data.

As a policing researcher, the value of new empirical data is high, because, until recent decades, we haven’t had much of it. For just one example, this paucity of reliable policing data led the federal government to underestimate the number of persons shot and killed by police in the United States by about 150 percent every year. Thanks to the researchers at the Washington Post, we now know that police officers fatally shoot an average near 1,000 individuals every year instead of the roughly 400 that were annually reported by the FBI. Data is particularly helpful when trying to measure the racial and ethnic impacts of intrusive policies like stop and frisk because claims of racial bias are nearly impossible to prove in a single circumstance, but data can support or undermine claims of racial bias depending on population and other variables. While numbers by themselves cannot tell the whole story of any given policy, well-cultivated data can show where and in what circumstances disparities arise, giving researchers information to explain what is happening.

Before the judge made his announcement in the ACLU DC lawsuit, MPD had been training its officers to implement the demographic recording section of the NEAR Act. I had conversations with more than a dozen patrol officers over the past several weeks, and the NEAR Act was often a subject of discussion. While each officer I talked to said they would implement the law in line with their general order to do so, personal reactions ranged from ambivalent, to skeptical, to fearful of what implementation would bring. Most notably, officers were apprehensive about asking people who they have stopped and potentially searched for even more personal information, including their ethnicity and gender identity.

The general order posted on the MPD website states that officers should use the following statement when asking for personal information, “Per the NEAR Act, as passed by the Council of the District of Columbia, we are required to ask for your gender, race, ethnicity, and date of birth.”

But the text of the NEAR Act does not require officers to ask this personal information, only to record it.  Indeed, researchers use demographic information to discover racial and other disparities in police stops and to determine whether those disparities are driven by officer bias or by departmental policy. In either case, the relevant demographic information is the sex and race of the stopped individual that the officer observed while making a stop, not the ethnicity or gender identity of the person stopped. What’s more, the general order instructs officers to select “unknown” whenever an individual refuses to answer the questions, subverting the purpose of recording the officer’s observations because of an uncooperative subject.

Mark Zuckerberg, Communitarian

Like almost every week, Facebook has been in the news. Much has been said about their earlier decisions regarding the speech of Russian agents, much of it negative. Amid that debate, you might overlook Mark Zuckerberg’s latest post about Facebook’s content moderation work. Don’t. Facebook’s moderation decisions impact speech across the globe and Zuckerberg’s post is an intriguing and important statement of the company’s position.

While the post announces changes to Facebook’s appeals process, for now I will focus on the ideas and values informing their policies about online speech.

We make tradeoffs among values all the time, even tradeoffs involving freedom of speech. While free speech is a fundamental value in the United States, it nonetheless may be curtailed to prevent violence, suppress obscenity, and protect a person’s reputation, among other reasons. Over time, these other values have come to matter less relative to free speech. Speech must directly and immediately lead to violence to be restricted; that does not happen much. Courts gave up on defining obscenity and made it difficult for public figures to win libel judgments. As a constitutional matter, we limit free speech in order to realize other values; in practice, speech almost always trumps other concerns.

At least in the public sphere. We could by law or custom demand that everyone, everywhere vindicate freedom of speech. But we don’t. I have the power to exclude speakers who ask irrelevant questions at Cato forums (though I rarely exercise it). Facebook has the same power to remove the speech of individuals or organizations from their platform. As a nation we choose private governance of private property over free speech when these values come into conflict.

That brings us to Mr. Zuckerberg. Facebook protects less speech than the U.S. Supreme Court. What values matter more to Facebook in some instances than free speech? Zuckerberg believes that Facebook should “balance the ideal of giving everyone a voice with the realities of keeping people safe and bringing people together.” Safety comprises, among other things, protection against terrorism and self-harm. “Bringing people together” implies avoiding social polarization by restricting hate speech and misinformation, the latter perhaps condemned less for its falsity and more for its divisiveness. Speech that contravenes these values constitutes “harmful content” that may be removed.

More abstractly, Facebook values community a lot. It protects its members against external and internal threats and seeks to foster unity. This concern for unity (and worries about division) marks a sharp departure from First Amendment doctrine. Limiting speech to preclude violence seems more familiar to students of liberty than restrictions in pursuit of social harmony. After all, divisive and polarizing speech (including “hate speech”) enjoys full protection by the courts. In the classic struggle between the individual and community, Facebook cares more about the latter than say, the average classical liberal, or indeed, the average free speech advocate.

You might think Facebook’s values reflect the challenges of building a lasting global business. Facebook users may prefer safety and unity over free speech. Community preferences and business logic might well go together. No doubt this is part of the story. But it is not the whole story. Facebook has a commitment to community that goes beyond profitability.

Zuckerberg’s post offers a novel discussion of “borderline content” which is defined as “more sensationalist and provocative content [which]… is widespread on cable news today and has been a staple of tabloids for more than a century.” Such content does not violate Facebook’s community standards; it toes the line. Facebook restricts the distribution and virality of such content but does not remove it. Why? “At scale it can undermine the quality of public discourse and lead to polarization. In our case, it can also degrade the quality of our services.” The latter is the concern of a businessman; the former are the values of a citizen who believes his company has a social obligation to foster civic unity at some margin.

These tradeoffs and the underlying philosophy suggest two problems for Facebook. First, the traditional problem of drawing lines. Racial and religious invective divides society and thus may be removed from the platform. Easy choices, you might think. But consider harder questions. Many people found The Bell Curve by Charles Murray and Richard Herrnstein racially offensive. They specifically deplored its treatment of IQ and race. Facebook’s Community Standards specifically preclude negative mentions of either.  Should speech favoring that work be removed?  On the other hand, a couple of years ago prominent law professor Mark Tushnet argued that President Hillary Clinton should have treated conservatives and Republicans as Germany and Japan were treated after 1945 (“…taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”)  Given that “taking a hard line” toward Germany after 1945 arguably led to the deaths of at least 500,000 people, should speech like Tushnet’s recommendation be banned from Facebook going forward? It will be hard to draw these lines consistently at scale while avoiding the appearance of political bias. 

Second, Facebook’s aspirations may conflict with the expectations of investors. Zuckerberg says Facebook research indicates that people want to engage with borderline content. If Facebook is a business, and businesses give customers what they want, why make it harder for customers to get the permitted content they want? More generally, Facebook managers may be mistaken about “borderline content” and about their audience. The economist Robin Hanson recently noted: ordinary people “are more interested in gossip and tabloid news than high-status news, they care more about loyalty than neutrality, and they care more about gaining status via personal connections than via grand-topic debate sparring. They like wrestling-like bravado and conflict, are less interested in accurate vetting of news sources, like to see frequent personal affirmations of their value and connection to specific others, and fear being seen as lower status if such things do not continue at a sufficient rate.” I admire Zuckerberg’s desire to improve public discourse. How widely shared is that ambition? Does our shared aspiration reflect the social norms of Facebook users? If not, should the CEO’s hopes trump his customers wants?

A final point. Much has been made of liberal bias at Facebook. Zuckerberg himself has noted that the environs of Menlo Park are quite left-leaning. It’s also true that many on the left do emphasize community over the individual as a matter of philosophy. But the community values mentioned in Facebook’s post are not necessarily those of the left. Conservatives have, at various times, argued for government action to protect community values against noxious speech. They have tended to lament divisions and praise the larger social whole (think of their view of patriotism and “our country”). Facebook’s idea of community may be either left, or right, or neither. What it cannot be is consistent with a philosophy that always accords free speech priority over social unity.

Will Malay Muslims Accept Equality Before Law?

There is a heated debate in Malaysia these days on whether the country should affirm the International Convention on the Elimination of All Forms of Racial Discrimination, or ICERD. Adopted by the United Nations General Assembly in 1969, the internal convention calls for eliminating all legal structures that favor one group over another. 

Malaysia is among a handful of countries that have neither signed nor ratified the treaty. One major reason is that many within the country’s ethnoreligious majority, the Muslim Malays, do not want to lose the privileges they have over the non-Muslim minorities such as the Chinese or Hindus. The Islamists also feel alarmed that accepting legal equality will lead to more freedom of religion, freedom of expression, or the intermarriage of Muslims and non-Muslims. 

Free Malaysia Today, a popular newssite with liberal tendencies, asked me what I think. I encouraged Malaysians to accept ICERD, and gave a reference that even the Islamists could not easily reject: The Ottoman Empire, the very seat of the Islamic Caliphate. Here is how Free Malaysia Today reported my take:

Mustafa Akyol, an award-winning author on contemporary Muslim issues, said Muslim groups who oppose the International Convention on the Elimination of All Forms of Racial Discrimination, or ICERD, should study the policies of past Islamic powers including the Ottoman caliphate with regards to equality.

“I would recommend that all those in Malaysia who oppose the ICERD on Islamic grounds read the Ottoman Constitution of 1876. It reads:

‘All subjects of the empire are called Ottomans, without distinction whatever faith they profess… [And] All Ottomans are equal in the eyes of the law. They have the same rights, and owe the same duties towards their country, without prejudice to religion.’”

The full story is available here: ”The Caliphate had ICERD, too

Policing High-Crime Areas: A Matter of Trust

Last week, NPR.org published a story entitled “D.C.’s Aggressive Confiscation of Illegal Guns Leaves Residents Feeling Targeted.” The report explains how the D.C. Metropolitan Police Department (MPD) is particularly adept among major cities at getting illegal guns off the streets, but a recent uptick in gun violence has ramped up efforts of their Gun Recovery Unit (GRU). The aggressive tactics of the GRU—using what locals call “jump-out cars” to stop and search individuals for weapons—contribute to the longstanding animosity between some community residents and the police.

While it is true that, per capita, D.C. leads other cities in gun confiscation, the high number of recovered weapons only tells part of the story. That is, what MPD did and the numbers of stops they made to recover that many weapons are part of a larger problem of harassment and distrust in the community. The MPD is quick to point to D.C.’s 44 percent increase in homicides since last year as the justification for their policy, but it’s uncertain as to whether “jump-out” tactics will help at all.