How SCOTUS Promoted Pernicious Myths About Sex Offender Registries

“Summarizing the evidence in a 2016 National Affairs article, Eli Lehrer noted that “virtually no well-controlled study shows any quantifiable benefit from the practice of notifying communities of sex offenders living in their midst.”
To reinforce the logic of registries, Kennedy averred that “the risk of recidivism posed by sex offenders is ‘frightening and high.'” He was quoting his own opinion in an earlier case, which in turn relied on an unsubstantiated estimate from a source who has publicly and repeatedly disavowed it.”

“as Justice John Paul Stevens noted in his dissent, there was “significant evidence of onerous practical effects of being listed on a sex offender registry,” ranging from “public shunning, picketing, press vigils, ostracism, loss of employment, and eviction” to “threats of violence, physical attacks, and arson.”

Those predictable costs, combined with legal restrictions on where registrants may live and which locations they may visit, undermine rehabilitation and continue to punish registrants long after they have completed their sentences. That is why several state and federal courts have concluded, contrary to what the Supreme Court said in Smith, that registration schemes are punitive in effect.”

DeSantis wants to roll back press freedoms — with an eye toward overturning Supreme Court ruling

“At the governor’s urging, Florida’s Republican-dominated Legislature is pushing to weaken state laws that have long protected journalists against defamation suits and frivolous lawsuits. The proposal is part DeSantis’ ongoing feud with media outlets like The New York Times, Miami Herald, CNN and The Washington Post — media companies he claims are biased against Republicans — as he prepares for a likely 2024 presidential bid.

Beyond making it easier to sue journalists, the proposal is also being positioned to spark a larger legal battle with the goal of eventually overturning New York Times v. Sullivan, the landmark 1964 U.S. Supreme Court ruling that limits public officials’ ability to sue publishers for defamation, according to state Rep. Alex Andrade, the Florida Republican sponsoring the bill.”

“the proposed bill goes further than simply decrying media bias. Free-press advocates call the measure unconstitutional and suggest it could have far-reaching consequences beyond major media outlets.
“I have never seen anything remotely like this legislation,” said Seth Stern, director of advocacy for the Freedom of the Press Foundation. “I can’t say I have seen every bill ever introduced, but I’d be quite surprised if any state Legislature had seriously considered such a brazen and blatantly unconstitutional attack on speech and press freedoms.”

He added: “This bill is particularly remarkable since its provisions have the vocal support of a governor and likely presidential candidate.”

DeSantis’ office said he “will make a decision on the merits of the bill in final form if and when it passes and is delivered to the governor’s office.””

“Andrade’s proposal incorporates many of the elements DeSantis called for during the roundtable, including:

— allowing plaintiffs who sue media outlets for defamation to collect attorneys fees;

— adding a provision to state law specifying that comments made by anonymous sources are presumed false for the purposes of defamation lawsuits;

— lowering the legal threshold for a “public figure” to successfully sue for defamation;

— repealing the “journalist’s privilege” section of state law, which protects journalists from being compelled to do things like reveal the identity of sources in court, for defamation lawsuits.

Stern said 49 states and several appellate circuits recognize a reporter’s privilege against court-compelled disclosure of source material and stressed that it’s essential for people to be able to speak to reporters without risking their jobs or freedoms.

“Journalists do not work for the government and it’s none of the government’s business how journalists gather news,” he added.

Andrade, however, said the privilege language in his bill would not allow a judge to force a journalist to reveal an anonymous source, but removes existing protections if they decide not to.”

““The law protects journalists from being ‘compelled’ by judges to disclose anonymous sources, but if a journalist has been sued for defamation, and wants to avoid liability, this section makes clear that they cannot claim a special privilege to avoid disclosing the source of the defamatory information and also avoid liability,” Andrade said.

Critics of the bill took issue with the section about attorneys fees, saying it could add a financial incentive to file defamation lawsuits and erode the laws preventing retaliatory lawsuits filed to silence criticism. Florida, like other states, has anti-SLAPP (strategic lawsuits against public participation) laws designed to help stop frivolous lawsuits.

“One of my largest concerns with the bill is the rolling back of the anti-SLAPP protection for defamation defendants,” said Adam Schulman, a senior attorney with the Hamilton Lincoln Law Institute, which advocates for free markets, free speech and limited governments. ”That’s just moving in the wrong direction.”

He said beyond large media companies, some of which have legal teams, the changes could affect the “ordinary guy” who leaves an “unfavorable Yelp review.”

“At one time, it was not considered ‘conservative’ to advocate for turning on the spigot to all sorts of troll-like civil litigation that will line the pockets of bottom-feeding plaintiffs’ lawyers,” Schulman said.

Stern said the new bill would leave those protections “toothless.” Under most anti-SLAPP laws, individuals can recover attorneys’ fees if they can show they were sued in retaliation for criticizing the government.”

A new Supreme Court decision leaves a Trump judge in charge of the Mexican border

“Although the Biden administration left this Title 42 policy in place for many months, it eventually announced that the program must be terminated in May of 2022. But before the policy could sunset, a group of Republican state officials ran to a Trump-appointed judge — who swiftly ordered the Biden administration to leave Title 42 in place. The Trump judge’s decision (his name is Robert Summerhays) is obviously wrong. And yet it’s been in effect for most of a year now, effectively transferring the executive branch’s power to set border policy to a single judge.”

“As a practical matter, by removing this case from its calendar, but leaving its order blocking Judge Sullivan’s decision in place, the Supreme Court has likely ensured that Summerhays will dictate border policy until at least May 11, when the Covid-19 public health emergency ends — although, to be clear, the Court could end Summerhays’s reign as America’s de facto border czar at any point by lifting its stay of Sullivan’s decision.
That means that, absent further action by the Supreme Court, a Trump judge will have dictated federal border policy for nearly an entire year, despite the fact that Summerhays’ decision is poorly reasoned and rests on a rather glaring legal error.”

“The thrust of Summerhays’s Louisiana decision is that the CDC was required to undergo a lengthy process known as “notice and comment” — a process that allows the public to weigh in on policy changes but typically takes months or even years to complete — before it could terminate the Title 42 program. But the whole point of the public health statute permitting the CDC to close the border to certain foreign nationals is to allow the government to swiftly issue emergency orders to mitigate a potential public health crisis.

If the CDC had to spend months jumping through procedural hoops before it could invoke its powers under this statute, then the statute may as well not exist. Suppose that a new disease emerged in, say, Finland next month, and the CDC determined that it should close the border to Finish nationals to delay this disease’s arrival in the United States. It would be pointless to issue such an order months from now. The whole point of such an emergency public health order is that it needs to take effect right away, before the disease enters the United States.

And the Supreme Court has said explicitly that, when the government decides to terminate a policy, it need only use the same process it was required to use in order to create that policy. As the Court said in Perez v. Mortgage Bankers Association (2015), “agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”

The Trump administration did not use notice and comment to create the Title 42 policy. (It did use the process for a later immigration regulation governing the scope of CDC’s power to close the border to foreign nationals, but not for Title 42 itself.) The CDC has since issued several other orders, also without notice and comment, that modified or extended the duration of the Title 42 program.

So Summerhays had no basis whatsoever to extend the Title 42 program on his own authority. The program should have terminated last May, when the Biden administration exercised its lawful authority to end it.”

“If the Supreme Court’s decision to effectively extend the Title 42 program for even more months after it lawfully should have ended were an isolated incident, then it would be easier to accept that this decision was motivated by something other than politics. It is much harder to do so, however, because the Arizona case is part of a much broader pattern in which the Court appears to be manipulating its procedures and its scheduling in ways that extend the life of Republican policies, while swiftly quashing Democratic plans.”

Google’s Brief to the Supreme Court Explains Why We Need Section 230

“”If Section 230 does not apply to how YouTube organizes third-party videos, petitioners and the government have no coherent theory that would save search recommendations and other basic software tools that organize an otherwise unnavigable flood of websites, videos, comments, messages, product

The Supreme Court hears a case this week that endangers workers’ ability to strike

“The Teamsters, the union in this case, allegedly timed a 2017 strike so that it would begin after some of Glacier Northwest’s mixing trucks were already filled with concrete, forcing the company’s non-union employees to race to dispose of this material before it hardened in the trucks. But the company was able to remove this wet concrete from the trucks before they were damaged, and there are a wealth of cases establishing that workers may strike even if doing so will cause some of their employer’s product to spoil.
In one case, for example, the National Labor Relations Board (NLRB) — a kind of quasi-court that hears disputes between unions and employers — sided with milk truck drivers who struck, even though their strike risked spoiling the milk before it was delivered to customers. Another case, handed down by a federal appeals court, reached a similar conclusion regarding striking cheese workers.

That said, there are also some cases establishing that workers may not walk off the job at a time that could result in truly egregious damage to their employer’s business. In one such case, for example, a federal appeals court ruled that foundry workers who work with molten lead could not abruptly walk off the job and leave the lead in a state where it could melt the employer’s facilities or injure other workers.

In any event, the Supreme Court’s decision in San Diego Trades Council v. Garmon (1959) lays out the process that employers must use if they believe their workers timed a strike so recklessly that the union should be held liable. In nearly all cases, the employer must first obtain a ruling from the NLRB establishing that their workers’ strike was not protected by federal law. Only then may they file a lawsuit against the union.

The employer in Glacier Northwest, however, wants the Supreme Court to water down Garmon considerably, potentially enough to render that decision toothless.

If that happens, it would be a tremendous blow to workers. One important reason the Garmon process exists is that it shields unions from lawsuits that could drain their finances and discourage workers from exercising their right to strike — after all, that right means very little if well-moneyed employers can bombard unions with lawsuits the union cannot afford to litigate.”

If You Oppose COVID Emergency Powers, You Should Oppose Title 42 Expulsions

“Gorsuch didn’t say that there aren’t problems at the border or that the transition from Title 42 wouldn’t prove challenging. “But the current border crisis is not a COVID crisis,” he wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

Policy makers would be wise to scrap the pandemic-era Title 42 order. It’s accomplished the opposite of what proponents promised, leading to more frequent and less predictable migrant inflows. Since a Title 42 expulsion carries no reentry penalty, repeat crossings roughly quadrupled in 2021 compared to their 2019 rate. Smugglers have taken advantage of repeat crossings by charging migrants more for the inflated number of northward journeys. With asylum largely inaccessible at ports of entry, migrants desperate to enter the country have attempted to cross the border in less surveilled, more dangerous terrain. These things have all contributed to chaotic scenes at the border, providing fodder for immigration restrictionists.”

Yes, You Can Yell ‘Fire’ in a Crowded Theater

“The erroneous idea comes from the 1919 case Schenk v. United States. The case concerned whether distributing anti-draft pamphlets could lead to a conviction under the Espionage Act—and had nothing to do with fires or theaters.
In his opinion, Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” However, this idea was introduced as an analogy, meant to illustrate that, as Trevor Timm wrote in The Atlantic in 2012, “the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority.” The phrase, though an oft-repeated axiom in debates about the First Amendment, is simply not the law of the land now, nor has it ever been—something made all the more apparent when Schenk v. United States was largely overturned in 1969 by Brandenburg v. Ohio.

“Anyone who says ‘you can’t shout fire! in a crowded theatre’ is showing that they don’t know much about the principles of free speech, or free speech law—or history,” Foundation for Individual Rights and Expression President Greg Lukianoff wrote in 2021. “This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations.””

Lindsey Graham’s surprisingly complex Supreme Court case about Trump’s Big Lie, explained