It seems that Friday was election law day in the federal courts

This past Friday, three separate federal courts released significant election law decisions. As is usual for this sort of thing, Rick Hasen was quick with details and analysis at the Election Law Blog. Here’s a quick rundown:

First, and perhaps most significantly, a partially divided panel of the U.S. Court of Appeals for the 4th Circuit invalidated a 2013 North Carolina law that required voter ID and  limited early voting, based on evidence that the law was designed to reduce African American voter turnout. The finding of racially discriminatory intent (as opposed to partisan intent that has a disproportionate impact on identifiable racial groups) makes it hard to defend reforms that might otherwise have been upheld. Here are the opinion and Hasen’s analysis. Here’s a response from GOP leaders in North Carolina pledging to challenge the decision all the way to the Supreme Court, and here’s Hasen’s explanation of why that’s unlikely to succeed.

Second, a federal district court held that similar voting reforms in Wisconsin were unconstitutional. Among other things, this law would have prohibited the use of university student IDs as valid identification for voting. Here are the opinion and Hasen’s analysis. As Hasen notes, there’s another Wisconsin voter ID case that’s already before the U.S. Court of Appeals for the 7th Circuit, leading to the possibility the two cases could be consolidated.

If that weren’t enough to keep election-law types busy on a Friday, the U.S. Court of Appeals for the 6th Circuit rejected the Libertarian Party’s challenge to Ohio’s ballot access rules for a second time. Here’s the opinion.

But wait, there’s more!

A state court in Kansas struck down a state law requiring proof of citizenship to vote in state and local elections, but not in federal elections. This measure was deemed to create an unlawful “dual voting system.”

Finally, in a non-election-law case with implications for politics, the U.S. Court of Appeals for the 3rd Circuit rejected former senator Bob Menendez’s challenge to his indictment. Menendez had argued that prosecution was barred under the Speech and Debate clause, but the 3rd Circuit wasn’t buying it. Here are the opinion and Hasen’s brief analysis. (He seemed to be busy with a few other things on Friday.)

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How Trump strengthens the forces of political correctness

Republican U.S. presidential candidate Donald Trump holds a rally with supporters in San Diego, California, U.S. May 27, 2016. REUTERS/Jonathan Ernst

Republican U.S. presidential candidate Donald Trump holds a rally with supporters in San Diego, California, U.S. May 27, 2016. REUTERS/Jonathan Ernst

Many of Donald Trump’s defenders love his attacks on “political correctness” and see him as a champion of the struggle against PC-ism. It is indeed true that Trump often fulminates against PC, describing almost anything he opposes as a product of it. But, in reality, he’s exacerbating the very problem he claims to decry.

Political correctness feeds on the perception that right of center political views are really just a cover for racism, ethnic bias, religious bigotry, and sexism. If conservatives and libertarians are really just promoters of white supremacy, there is no reason to take them seriously, and little will be lost if their views are suppressed by speech codes, safe zones, and the like.

That perception is massively reinforced when Trump does things like call Hispanic immigrants “killers” and “rapists,” claim that a Mexican-American judge’s ethnicity should disqualify him from hearing a case involving Trump University, call for a ban on Muslims entering the United States, advocate the massacre of innocent relatives of suspected Muslim terrorists, and generally indulge in rhetoric that differs little from that of David Duke.

If the alternative to political correctness is Trumpism, then most people of good will are likely to pick the former – not just minorities, but also many whites who oppose bigotry. By winning the GOP nomination and becoming the leader of the main right of center party, Trump has already dealt a blow to the struggle against PC. To the extent conservatives have embraced him, they validate the PC left’s claim that they are at best indifferent to bigotry and at worst active supporters of it.

If Trump actually wins the presidency in November, the problem will get worse. Whether we like it or not, a GOP president almost inevitably becomes the most visible face of the political right, even if some right-wingers continue to oppose him. In the same way, President Obama has become the face of the left, even if some left-wingers dislike some of his policies. And if the most visible face of the right is an open advocate of bigotry, that can only strengthen political correctness. It will be perceived – in part, even correctly – as a validation of much that PC leftists have been saying for years.

There is also a second, more subtle, way in which Trumpism promotes PC-ism. Like the PC left, Trump views the world as a zero-sum game: Americans can only gain by being “winners” in competition with foreigners; progress for white workers require shutting out Hispanic immigrants, and so on. Such zero-sum thinking is not just a campaign ploy; it is at the heart of Trump’s entire world-view, since long before he ran for president. And it will surely be a major influence on what he does in the White House.

Trump’s advocacy of zero-sum identity politics for whites is the mirror image of the identity politics of the PC far left. Both assume that minority groups can only really prosper at the expense of whites, and vice versa. The growth of zero-sum identity politics on one side of the ethnoracial divide naturally strengthens it on the other, as well.

Some conservatives and libertarians may think that there is no need to abjure Trumpist nastiness, because PC leftists will hate us regardless of what we do. From the standpoint of hard-core advocates of political correctness, there is little or no real difference between Trump and, say, Mitt Romney or John Kasich. All are alike denounced as bigots. If we are going to be attacked as racists either way, why should we not be just as mean as our adversaries? If they can do it, why not us?

One answer is that, if we really think the PC left is reprehensible, we should not imitate their bad behavior, but oppose it. We should not respond to their intolerance with our own. But, even more importantly, the struggle against political correctness is not really about winning over its most vociferous advocates. They are unlikely to be persuaded anytime soon, if ever.

The true stakes in the struggle are the hearts and minds of people who are not already set in their views. It is about young college students who may not like censorious PC-ism, but could succumb to it if they see it as the only antidote to bigotry. It is about minorities who might be open to alternatives to left-wing politics, but not if the most visible ones seem like an obvious cloak for white supremacy. It is about well-meaning people of all backgrounds who seek coexistence between different racial and ethnic groups, but aren’t sure how to achieve it. Most of all, it is about showing that the world does not have to be a zero-sum game: that immigrants and natives, blacks and whites, Anglos and Hispanics, can all prosper together through voluntary cooperation in which their differences can become assets rather than liabilities and sources of conflict.

Trump, his rhetoric, and the world-view behind it, are all impediments to effort to combat PC. Indeed, they are a bigger liability to the cause than any PC leftist is ever likely to be. Like that of most causes, the reputation of this one is more easily undermined by the misdeeds of its supporters than those of its enemies. Nothing is more likely to discredit the struggle against PC than having its most visible supposed advocate validate the claims of its enemies.

By contrast, opponents of PC-ism are more likely to get a fair hearing if they show they are not willing to support bigotry, including- indeed, especially – when it is promoted by political party they might normally support. If you truly care about the combating political correctness, you have one more reason to be #NeverTrump.

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Is Tammy Wynette’s widower’s widow a public figure?

Tammy Wynette and her ex-husband George Jones at the Country Music Association Awards in Nashville in 1995. (Jeff Mitchell/Files/REUTERS)

Tammy Wynette’s widower’s widow is a limited purpose public figure when it comes to discussions of what used to be Wynette’s property, a split Texas appellate panel held Wednesday (McManus v. Richey). An interesting illustration of a recurring question; the heart of the court’s conclusion was that,

[Plaintiff] Sheila [Richey, Wynette’s widower’s widow,] admitted to participating in the Investigation Discovery network show, entitled “The Will—Family Secrets Revealed,” and the Dr. Drew show to discuss Tammy’s will and the complaints made by Tammy’s children. See McLemore, 978 S.W.2d at 573 (“‘By publishing your views you invite public criticism and rebuttal; you enter voluntarily into one of the submarkets of ideas and opinions and consent therefore to the rough competition in the marketplace.’”). Furthermore, the alleged defamatory comments made by [defendant Michelle] McManus and others directly relate to Sheila’s involvement in the distribution and possession of the assets of the Tammy Wynette estate.

What difference does public figure status make?

1. As a First Amendment matter, it affects the showing that a libel plaintiff would have to make to recover proven compensatory damages (when the speech is on a matter of public concern). Private figures may recover such damages by showing that the speaker negligently erred; but public figures must show that the speaker knew the statement was false or at least likely false. Other rules, such as those related to punitive or presumed damages, are the same for public and private figures.

2. A Texas statute offers certain procedural protections for defendants — chiefly, an opportunity for quick dismissal of cases that a court finds lacking in merit, and an award of attorney fees to successful defendants — in libel cases brought by public figures (as well as some other libel cases as well). That was the specific issue involved in this very case.

Fun fact: Tim McGraw sang at the wedding of Sheila Richey and Wynette’s widower, George Richey.

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My article on the politics of five major science fiction and fantasy series

Babylon 5 - 2

After the GOP and Democratic conventions, even many of us who follow politics closely might need a break from this year’s awful presidential election. If you are one of them, you might be interested in my new article on the politics of five major science fiction and fantasy series, just published at the Institute for Humane Studies’ Learn Liberty site:

The politics of science fiction and fantasy series may seem like a frivolous topic at a time when we have so many serious real political problems. But it’s nonetheless worth considering, if only because far more people read science fiction novels, and watch genre movies and TV series than read serious nonfiction literature on political issues. Besides, the politics of imaginary worlds is a lot more fun to contemplate than the dismal real-world political scene.

And so, without further ado, here are some thoughts on the politics of several major science fiction and fantasy series—chosen partly because of their popularity, but partly also because they are among my personal favorites.

The five series I picked are Babylon 5, Battlestar Galactica, Game of Thrones/Song of Ice and Fire, The Hunger Games, and The Lord of the Rings. I did not include Star Trek and Star Wars, because I have discussed their political themes in some detail elsewhere (see here and here).

I decided to include Babylon 5 even before the passing of Jerry Doyle, one of the series’ best actors, yesterday. But this post now doubles as a modest tribute to him. For those interested, here is a more extensive tribute by Jan Michael Straczynski, creator of Babylon 5.

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Student may go forward with lawsuit alleging Columbia’s sex assault investigation was biased against him because he was male

John Doe, a male Columbia University student, was accused of sexually assaulting a classmate. Doe claimed the sex was consensual and not coercive, but Columbia found that he had “directed unreasonable pressure for sexual activity toward [the classmate] over a period of weeks” and that “this pressure constituted coercion [so that] the sexual intercourse was without consent.” Columbia then suspended Doe for, in effect, 1½ years.

Doe sued, claiming that Columbia failed to properly investigate the matter, because its process is biased against men. The district judge threw out the claim before trial, but today’s decision of the U.S. Court of Appeals for the Second Circuit (Doe v. Columbia University) reinstates the claim. Here’s an excerpt, though the opinion provides many more factual details:

Plaintiff’s Complaint pleads sufficient specific facts giving at least the necessary minimal support to a plausible inference of sex discrimination to survive a Rule 12(b)(6) motion to dismiss, if Title IX’s other requirements are met. It alleges that Columbia’s hearing panel (which erroneously imposed discipline on the Plaintiff), its Dean (who rejected his appeal), and its Title IX investigator (who influenced the panel and the Dean by her report and recommendation), were all motivated in those actions by pro-female, anti-male bias. Those alleged biased attitudes were, at least in part, adopted to refute criticisms circulating in the student body and in the public press that Columbia was turning a blind eye to female students’ charges of sexual assaults by male students.

Among the Complaint’s allegations that support the inference of sex discrimination are the following. Both the investigator and the panel declined to seek out potential witnesses Plaintiff had identified as sources of information favorable to him. The investigator and the panel failed to act in accordance with University procedures designed to protect accused students. The investigator, the panel, and the reviewing Dean, furthermore, reached conclusions that were incorrect and contrary to the weight of the evidence.

When the evidence substantially favors one party’s version of a disputed matter, but an evaluator forms a conclusion in favor of the other side (without an apparent reason based in the evidence), it is plausible to infer (although by no means necessarily correct) that the evaluator has been influenced by bias. Here, the facts pleaded in the Complaint (which we must accept in the light most favorable to Plaintiff) support John Doe’s version (not surprisingly as they represent his contentions). The Complaint’s narrative depicts Jane Doe as an altogether willing participant. It denies that Plaintiff coerced Jane and asserts that “no evidence was presented” in support of the claim of coercion. The alleged fact that Sessions-Stackhouse, and the panel and the Dean, chose to accept an unsupported accusatory version over Plaintiff’s, and declined even to explore the testimony of Plaintiff’s witnesses, if true, gives plausible support to the proposition that they were motivated by bias in discharging their responsibilities to fairly investigate and adjudicate the dispute.

While those allegations support the inference of bias, they do not necessarily relate to bias on account of sex. Additional allegations of the Complaint, however, give ample plausible support to a bias with respect to sex. As outlined above, the Complaint alleges that during the period preceding the disciplinary hearing, there was substantial criticism of the University, both in the student body and in the public media, accusing the University of not taking seriously complaints of female students alleging sexual assault by male students. It alleges further that the University’s administration was cognizant of, and sensitive to, these criticisms, to the point that the President called a University-wide open meeting with the Dean to discuss the issue. Against this factual background, it is entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.

Columbia argues that the pleaded facts do not support an inference of intentional sex discrimination. It argues that the criticism of the University was for not taking student complaints of sexual assault seriously, and that any motivation on the part of the panel to demonstrate that it takes such complaints seriously is not the same thing as a motivation to discriminate against an accused male student. The district court stated that any bias in favor of Jane Doe “could equally have been — and more plausibly was — prompted by lawful, independent goals, such as a desire (enhanced, perhaps, by the fear of negative publicity or Title IX liability to the victims of sexual assault) to take allegations of rape on campus seriously and to treat complainants with a high degree of sensitivity.”

This reasoning fails to recognize the court’s obligation to draw reasonable inferences in favor of the sufficiency of the complaint. [Federal pleading rules do] not require that the inference of discriminatory intent supported by the pleaded facts be the most plausible explanation of the defendant’s conduct. It is sufficient if the inference of discriminatory intent is plausible.

The Complaint alleges that, having been severely criticized in the student body and in the public press for toleration of sexual assault of female students, Columbia was motivated in this instance to accept the female’s accusation of sexual assault and reject the male’s claim of consent, so as to show the student body and the public that the University is serious about protecting female students from sexual assault by male students — especially varsity athletes. There is nothing implausible or unreasonable about the Complaint’s suggested inference that the panel adopted a biased stance in favor of the accusing female and against the defending male varsity athlete in order to avoid further fanning the criticisms that Columbia turned a blind eye to such assaults.

[Footnote: It is worth noting furthermore that the possible motivations mentioned by the district court as more plausible than sex discrimination, including a fear of negative publicity or of Title IX liability, are not necessarily, as the district court characterized them, lawful motivations distinct from sex bias. A defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.]

The Complaint sufficiently alleges circumstances plausibly supporting a similar motivation on the part of Sessions-Stackhouse. It alleges that she had suffered personal criticism in the student body for her role in prior cases in which the University was seen as not taking seriously the complaints of female students. At the time Sessions-Stackhouse investigated Jane Doe’s accusation of Plaintiff, she knew that the University had been criticized for its conduct of investigations of sexual abuse, and specifically accused of conducting the investigations in a manner that favored male athletes and that was insufficiently protective of sexually assaulted females. It is plausible that she was motivated to refute those criticisms by siding with the accusing female and against the accused male….

We conclude that the Complaint adequately pleads facts that plausibly support at least the needed minimal inference of sex bias. Accordingly, we vacate the district court’s dismissal of the Title IX claim, and remand for further consideration. Our decision to reinstate the Complaint in no way suggests that our court has any view, one way or the other, on the likely accuracy of what Plaintiff has alleged. We recognize that the facts may appear in a very different light once Defendant Columbia has had the opportunity to contest the Plaintiff’s allegations and present its own version. The role of the court at this stage of the proceedings is not in any way to evaluate the truth as to what really happened, but merely to determine whether the plaintiff’s factual allegations are sufficient to allow the case to proceed. At this stage, the court is compelled to assume the truth of the plaintiff’s factual allegations and draw all reasonable inferences in his favor. Following those rules, we conclude that the Complaint sufficiently alleges that Columbia was motivated by sex bias….

Thanks to Keith Kaplan for the pointer.

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Wise words about the much-too-criticized passive voice

Prof. Geoffrey Pullum (Chronicle of Higher Education, Lingua Franca) has some wise words about the passive voice, and about when it’s perfectly proper. An example:

If you were to take a sentence like Smith was arrested, indicted, and found guilty, but the money was never recovered and try to wrestle it into the active voice, as so many writing guides insist you should, you would have to find subjects for all the active verb phrases. You’d need subjects for arrested Smith (the police department? the county sheriff?), and indicted him (a grand jury, as in the U.S.? the Crown Prosecution Service, as in Britain?), and for found him guilty (a judge? a trial jury?), and for recovered the money (the detectives? some bank or post office? the people whose cash had been stolen?). Implementing this pointless and clumsy elaboration would make the sentence nearly twice as long.

There’s more; check out the whole post. Thanks to my colleague Steve Yeazell for the pointer.

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California (unintentionally?) recriminalizes libel — and criminalizes disclosure of private facts, right of publicity infringements and more

California Penal Code § 530.5(a) provides that it is a crime to “willfully obtain[] personal identifying information … of another person” and use it “for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.” “Personal identifying information” means “any name, address, telephone number” or one of many other identifying items (such as Social Security number, bank account number, and the like). And “person” covers not just individuals but also “any other legal entity,” including corporations.

Now you might think that this is a statute aimed at identity theft — i.e., impersonating someone to get credit, goods or services. And the statute is even called the California “identity theft” statute. But it is, oh, so much more! As California courts have read its terms, the statute

  1. reinvents criminal libel law (California’s criminal libel was repealed in 1986)
  2. makes it a crime to commit the tort of disclosure of private facts, so long as the disclosure uses a person’s name,
  3. makes it a crime to commit the tort of interference with contract, so long as the defendant’s actions used a person’s or business’s name,
  4. makes it a crime to infringe a person’s right of publicity,
  5. and likely much more.

Pretty surprising — it surprised me. But that’s the logical implementation of how California courts have read the statute.

1. California courts have held that the statute is not limited to behavior that is generally viewed as “identity theft,” such as impersonation, or intent to defraud. “[T]he statute itself does not use [the] phrase [‘identity theft’], nor does it require that a defendant portray himself as someone else…. [T]he statute does not, in fact, require that a defendant have personated another in using another individual’s personal identifying information in order to be convicted under its terms.” People v. Barba (Cal. Ct. App. 2012). “[Section 530.5(a)] clearly and unambiguously does not require an intent to defraud.” People v. Hagedorn (Cal. Ct. App. 2005).

2. California courts have also held that the “unlawful purpose” could be a purpose to commit a merely civil actionable tort, even if that tort is not itself a crime. They have said so as to libel. In re Rolando S. (Cal. Ct. App. 2011) and People v. Casco (Cal. Ct. App. 2015) (nonprecedential). They said so just last month as to disclosure of private facts. People v. Bollaert (Cal. Ct. App. 2016). But this logic would equally apply to using a person’s name or other attributes in other torts (at least intentional torts), such as interference with contract, violation of the right of publicity and the like.

3. And the statute applies even when the identifying information was acquired lawfully (neither criminally nor tortiously), and without any intention of committing a crime. Rolando S. The crime is committed when this information, however properly acquired, is used in (among other things) the commission of a tort.

So let’s look at the most recent of these decisions, Bollaert. Bollaert was a revenge porn extortionist: He urged people to post “private, intimate photographs of others along with that person’s name, location and social media profile links” on one of his sites, and then had another site on which victims could pay to get the information removed. This behavior was criminal extortion (a form of blackmail) quite apart from a violation of the identity theft statute, and indeed Bollaert was convicted of extortion.

But he was also convicted of violating § 530.5:

[T]he term “unlawful” as used in section 530.5 includes intentional civil torts, including those relied upon by the People here: invasion of privacy by means of intrusion into private affairs and public disclosure of private facts.

And by revealing people’s “identifying information” — “full names, locations, and Facebook links, as well as the nude photographs themselves” — with the purpose of committing a tort, Bollaert was committing a crime.

4. Now I have argued that narrowly and clearly written revenge porn bans are constitutional (pp. 1405-06). But nothing in Bollaert’s § 530.5 discussion was limited to revenge porn, or to extortion.

Say, for instance, that Kendra Schmollaert, Kevin Bollaert’s second cousin, has a blog with a couple of thousand readers. She publishes a blog post that mentioned an acquaintance’s formerly private sex scandal (or medical problem) and gives the acquaintance’s name. That may well constitute the tort of disclosure of private facts, and maybe Schmollaert should be liable for that. (I think the tort is too broad and vague to be constitutional, but most courts disagree with me on that.) But, to her surprise — and, I suspect, to the surprise of most media lawyers — a prosecutor decides to charge Schmollaert criminally. Guilty!

  1. Schmollaert willfully published the aquaintance’s “identifying information” — the full name, and possibly some indication of location (e.g., if Schmollaert says the acquaintance is Schmollaert’s neighbor).
  2. Schmollaert did so with the purpose of committing a tort, namely the disclosure of private facts. (True, Schmollaert wasn’t doing this just for the sake of committing a tort, but neither was Bollaert — Schmollaert wanted to tell an interesting story, or maybe expose an acquaintance whom Schmollaert disliked, while Bollaert wanted to make money, and both purposefully used people’s identifying information as a means of accomplishing that goal.)
  3. Schmollaert didn’t reveal any nude photographs — but nothing in § 530.5(a) says anything whatever about nudity, or about photographs; as the courts have interpreted the statute, tortious disclosure of private facts is enough.
  4. Schmollaert also wasn’t impersonating anyone — but neither was Bollaert.

Or say that Schmollaert instead starts selling T-shirts that depict photographs of celebrities, with captions that give the celebrities’ names. Under California law, that’s a tort, both statutory and common-law, and might lead to liability. But again Schmollaert also turns out to be guilty of a crime:

  1. She willfully published the celebrities’ “personal identifying information” (“full names, … as well as the … photographs themselves.”
  2. She did so with the purpose of infringing the celebrities’ right of publicity.

5. So we thus have a broad criminalization of a wide range of communicative torts. Criminal libel is back, to my knowledge without any real legislative deliberation about whether to revive this crime. For the first time in California (and in nearly all the other states), the disclosure-of- private-facts tort is now a crime. So is the right of publicity. So is the interference with contract. So is trademark infringement that uses a corporation’s name.

As a First Amendment matter, the general rule is that speech that can be made tortious can generally be criminalized (at least so long as the government must show at least recklessness or knowledge as to the facts on the speaker’s part, and so long as the elements of the speech restriction are sufficiently clearly defined). But there is good reason for legislatures not to push their power to the maximum, especially when the underlying tort is pretty vague (consider the disclosure-of-private-facts tort, with its focus on relatively subjective concepts, such as “newsworthiness”). I don’t think the California Legislature was trying, with § 530.5, to so broadly criminalize tortious speech. But that’s how California courts have interpreted the statute.

And this also helps show why many commentators — myself included — criticize proposed statutes based on the possible scope of their broad and vague language, rather than just focusing on the particular problem that led to the proposal. Once a statute is enacted, prosecutors will often push them to the limits of the language, especially when the defendants are bad people doing bad things (e.g., Bollaert’s revenge porn blackmail racket). And courts will often (not always, but often) read the language broadly. The story of § 530.5 is a classic example.

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