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The Shutdown and the First Amendment

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Federal law requires brewers to get pre-approval for their beer bottle labels, apparently in order to avoid "various false, misleading, obscene, or misleading statements, and the disparagement of competitors' products." But though the pre-approval generally comes within three weeks, it's now on hold because of the government shutdown. The motion for a preliminary injunction in Atlas Brew Works, LLC v. Whitaker (D.D.C. filed Jan. 15, 2019) argues that this violates the First Amendment. (The case is being litigated by Alan Gura, who is famous mostly for his Second Amendment cases, but who handles many First Amendment ones as well.) An excerpt:

Americans' fundamental right to free speech requires no Congressional authorization. The government can shut down speech regulators. It cannot shut down the First Amendment. The lack of political will to operate what might be a valid restriction on protected speech is the government's problem, not a speaker's. The Framers would have recoiled at the notion that anyone would fear criminal prosecution for speaking, merely because Congress has not enacted a bill funding the operation of a content-based prior restraint on their speech.

Yet such is the predicament facing Washington, D.C.'s Atlas Brew Works. Atlas, a neighborhood production craft brewer, sits on forty barrels of The Precious One—a perishable, seasonal apricot-infused India pale ale that Atlas cannot label for interstate shipment. The federal government stands ready to prosecute Atlas should it ship The Precious One, because it has not approved the content of that beer's keg label. On the other hand, for lack of Congressional appropriation, the government cannot review Atlas's application for label approval. And this is not Atlas's only label pending approval. Atlas must be able to continue publishing new labels to remain in business. As the government would have it, however, prosecuting Atlas for speaking without a license is "essential." The processing of Atlas's request for permission to speak, not so much.

The situation is unacceptable. This Court may be unable to solve the political branches' budgetary standoff, but it remains in the business of securing fundamental rights. The bottom line is that Atlas suffers a categorical prohibition of its constitutionally-protected speech, as well as an indefinite content-based prior restraint on that speech. The Court should immediately enjoin the government from requiring that Atlas obtain a legally-unavailable license to exercise fundamental First Amendment speech rights....

The First Amendment secures the right to publish beer labels. At least in part, beer labels come within the First Amendment's protection because "information on beer labels constitutes commercial speech." Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995). "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish ... even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment." Edenfield v. Fane, 507 U.S. 761, 767 (1993).

Atlas's consumers share the brewer's First Amendment interest in its beer labels. "If there is a right to advertise, there is a reciprocal right to receive the advertising ...." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 757 (1976) (footnote omitted). "[That] interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue." Bates v. State Bar of Ariz., 433 U.S. 350, 364 (1977). Doubtless many consumers would prefer using Atlas's beer labels than listening to federal budget debates. The two activities might even have a symbiotic relationship.

This is not to suggest that the government may not regulate beer labels. But as precedent condemning beer label censorship attests, such regulations must meet First Amendment standards. See Rubin, supra, 514 U.S. 476; Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998); Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm'n, 597 Fed. Appx. 342 (6th Cir. 2015); Hornell Brewing Co. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993).

At least for now and for the foreseeable future, the COLA requirement's application to Atlas's beer labels cannot survive First Amendment scrutiny.... TTB's now-conceptual, inoperative licensing mechanism is irrelevant. Indeed, the licensing of Atlas's speech is itself a constitutional impossibility .... When an administrative process exists by which people may obtain relief from a prohibition, but Congress has not appropriated money to fund that process, the underlying prohibition is subject to constitutional challenge. See Schrader v. Holder, 704 F.3d 980, 992 (D.C. Cir. 2013) ("[w]ithout the relief authorized by [18 U.S.C. §] 925(c), the federal firearms ban will remain vulnerable to a properly raised as-applied constitutional challenge")....

"Traditionally, First Amendment questions arising in the arena of 'commercial speech' have occasioned scrutiny under the standard of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980)." "Under Central Hudson, protected speech may be regulated if the governmental interest is 'substantial.' Any such regulation must 'directly advance[] the governmental interest asserted.' When analyzing this requirement, the Supreme Court 'has commonly required evidence of a measure's effectiveness.' Finally, any regulation cannot be 'more extensive than is necessary to serve that interest,' a standard the government cannot satisfy 'if it presents no evidence that less restrictive means would fail.'" ...

The government cannot argue that the current state of affairs reflects considered legislative judgment to advance any regulatory interest. When Congress enacted the FAA Act in 1935, it apparently assumed that someone would administer it. The FAA Act's licensing guidelines, and those found in the TTB's regulations, reflect the government's position in weighing the interests at stake. These do not prescribe a categorical prohibition, which went into effect as an unintended consequence of a political dispute wholly unrelated to beer labels. Atlas suffers from a prohibition of its protected First Amendment speech unsupported by any regulatory concerns about that speech....

Whatever the government's concerns with beer labels, those concerns led it to regulate, not to prohibit. No "careful calculation" supports the current prohibition on the publication of Atlas's beer labels in interstate commerce. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), is instructive. In that case, the Supreme Court accepted that the government has a substantial interest in preventing underage tobacco use, "but it is no less true that the sale and use of tobacco products by adults is a legal activity." In considering the constitutionality of restrictions on outdoor tobacco advertising, the Court offered, "[w]e must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products." Id. The state lost. "The breadth and scope of the regulations, and the process by which the Attorney General adopted the regulations, do not demonstrate a careful calculation of the speech interests involved." Id. at 562.

Even if government were permitted to conjure an interest in support of the present prohibition on beer label speech, that prohibition would only be "another case of 'burn[ing] the house to roast the pig.'" Sable Commc's of Cal., Inc. v. FCC, 492 U.S. 115, 131(1989) (quoting Butler v. Michigan, 352 U.S. 380, 383 (1957)). "[A] speech regulation cannot unduly impinge on the speaker's ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products." Lorillard, 533 U.S. at 565. The current prohibition bars Atlas from offering The Precious One on tap outside the District of Columbia, makes it impossible for Atlas to sell any of its planned new beers, and prevents Atlas from updating the labels for existing products. Regardless of the government's supposed regulatory interest, this prohibition goes too far....

Central Hudson left open the question of whether traditional prior restraint doctrine applies to commercial speech, suggesting in dicta that it "may not apply." Central Hudson, 447 U.S. at 571 n.13. The D.C. Circuit has held the question open as well, Pearson v. Shalala, 164 F.3d 650, 660 (D.C. Cir. 1999), but courts tend to apply the prior restraint doctrine to commercial speech. "[T]he prior restraint doctrine does play a role in evaluating the regulation of commercial speech." Nutritional Health Alliance v. Shalala, 144 F.3d 220, 227 (2d Cir. 1998); Desert Outdoor Advertising v. City of Moreno Valley, 103 F.3d 814, 818-19 (9th Cir. 1996) (striking down prior restraint on commercial billboards); In re Search of Kitty's East, 905 F.2d 1367, 1371 (10th Cir. 1990); but see Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 532-33 (6th Cir. 2012). The Fourth Circuit recently upheld a prior restraint on commercial speech not because the speech was commercial in nature, but because it was "likely false or misleading." Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., 700 Fed. Appx. 251, 264 (4th Cir. 2017).

The government cannot require Atlas to obtain a license in order to speak—a license aggressively reviewed for content under rules mandating some statements and forbidding others, as interpreted by the licensing authority—and then shutter the licensing office indefinitely. No one knows when the TTB will reopen. That question that can only be answered by reference to the stubbornness of the President and Congressional leaders in sticking to their respective positions regarding the construction of a wall on the Mexican border. The delay is not "specified," nor has it been "brief." If TTB opens tomorrow, Atlas would still have to wait perhaps another three weeks for a decision—or more, considering what would be TTB's substantial backlog. The commercial aspects of Atlas's speech should make no difference in the analysis. "Although the interests of the commercial speech at issue here may not equate with those of political speech, we agree that the special protections of the First Amendment justified the exercise of equitable jurisdiction in this case." Kitty's East, 905 F.2d at 1371 (footnote omitted). The Court cannot force the TTB to review Atlas's label, but it should lift the prior restraint....

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jsled
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Playing Red Dead Online as a black character means enduring racist garbage

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Here’s What’s Really Happening at the Border

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If you want to know what things are like on our southern border, one way to find out is to go down there and talk with the people who live there. Learn about their lives, and the lives of folks on the other side who want to get in. Put a human face on the whole thing.

But that’s not my style. When I want to know what’s happening, I look at the numbers. So here you go: five pairs of charts that tell the real story of the so-called crisis on our southern border.

1. The Basic Numbers

Since its peak in 2007, the population of unauthorized immigrants has been steadily dropping. And the number of deportations and other removals has been dropping every year since 2004.

2. Apprehensions

The number of unauthorized immigrants apprehended at the border has been dropping ever since 2000. Border Patrol agents apprehend about 400,000 migrants per year, one quarter the number of two decades ago. In the interior of the country, ICE agents arrest about 13,000 people per month, half the level of only six years ago.

3. Crime

Most of the evidence suggests that unauthorized immigrants commit less violent crime than US natives. The top chart shows that states with higher levels of unauthorized immigrants also tend to have lower crime rates. (Note: If this seems unlikely to you, it’s probably because you think of places like Texas and California as high-crime states. They aren’t. California has always been below the national average, and Texas has been below it for all but a few years since 1990.)

Don’t take this chart to mean more than it does. Despite the careful work of the authors, I don’t think it proves that unauthorized immigrants commit substantially fewer crimes than natives. There’s just too much going on to say that with confidence, and anyway, the size of the immigrant population is too small to drive large differences in crime rates at a state level. However, it does provide pretty strong evidence that unauthorized immigrants don’t commit crimes at higher rates than natives. Most likely, they’re about equally crime prone compared to natives, or perhaps a bit less.

The second chart shows the percentage of deportations that are based on criminal activity. Under four different presidents, it’s been going down steadily. This suggests pretty strongly that there simply aren’t very many criminals to deport these days.

4. Drugs

Although the “crisis” language is overblown, traffic across the border in illicit drugs has clearly been rising. However, as the second chart shows, nearly all of this happens at ports of entry, where the drugs are hidden in cars or trucks. Building a wall would have almost no effect on this.

5. Asylum

If there’s plainly no crisis in terms of border crossings, apprehensions, crime, or drugs, there is a humanitarian crisis at the border. The number of asylum requests has been rising steadily for the past six years, and the denial rate has risen from 55 percent to 70 percent under President Trump. However, this barely tells a fraction of the story: there are now over 800 thousand pending cases in immigration court, a backlog that will keep growing at an astronomical rate unless we hire more judges—which we need—instead of more border agents.

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jsled
2 days ago
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The floor time constraint of any 2021 agenda

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Prioritization will be a key differntiatior of Democratic Presidential and Senate primary candidates. I believe that most Democrats will share significant elements of what is on their top-10 list of areas that need federal government attention in a government that could theoretically have a narrow Democratic trifecta. But the key will be prioritization.

In 2009-2010, the US Senate was able to do the following big things:

  • Confirm two Supreme Court Justices
  • Pass the ACA
  • Pass Dodd-Frank
  • Pass the stimulus (ARRA)

In 2017-2018, the US Senate was able to do the following big things:

  • Pass a huge ass tax cut
  • Confirm two Supreme Court Justices
  • Not pass Repeal and Replace while burning several months of attention on it

Senate floor time is a key constraint.  A very productive Senate might have slots for two big bills, three or four medium actions (such as SCOTUS nominees) and a lot of housekeeping.  A productive Senate is most likely positively correlated with the size of the effective majority.

Right now, there are numerous agenda items that could qualify as a “big” thing from the Democratic/liberal perspective.  The following will be an incomplete list:

  • Healthcare reform
    • Medicare for All?
    • ACA 3.0?
  • Global Warming Policy
  • Voting Rights Act revision
  • Civil Rights Act revision
  • 2 or more SCOTUS confirmations
  • Truth and Reconciliation
  • Constitutional Amendments to make electing a compromised buffoon harder (mandatory disclosure of 14 years of paperwork related to anything authorized by the 16th amendment etc )
  • Immigration and naturalization

Any of these things could easily eat up three months or more of floor time in the Senate.  I’ve listed well over twenty four months of potential floor time activities from an incomplete list if all of these items were considered to be “big” items for the Senate.  That is infeasible as it neglects the basic day to day functioning of the Senate as well.  The Senate still has to approve nominees, it still has to pass appropriations, it still has to make tweaks and changes to the law as circumstances dictate.

So the question will be prioritization.   Candidates are likely to share the same items on a top-10 list but the rank ordering and asset allocation will matter a lot. One candidate might want to spend six months on healthcare again at the cost of doing much if anything on immigration and naturalization. Another candidate could want to spend a little time on a minimal “fix-it” healthcare bill while spending more time on global warming policy.  Those are all defensible choices.  But the prioritization is very valuable information.

 

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2 days ago
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How This All Happened

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jsled
4 days ago
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«The biggest difference between the economy of the 1945-1973 period and that of the 1982-2000 period was that the same amount of growth found its way into totally different pockets.

[…]

It was nearly the opposite of the flattening that occurred after that war.

Why [the top 1% captured all the income growth] happened is one of the nastiest debates in economics, topped only by the debate over what we should do about it. Lucky for this article neither matters.

All that matters is that sharp inequality became a force over the last 35 years, and it happened during a period where, culturally, Americans held onto two ideas rooted in the post-WW2 economy: That you should live a lifestyle similar to most other Americans, and that taking on debt to finance that lifestyle is acceptable.»
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Trump’s Hannity interview reveals a president out of touch with reality

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He can’t explain what he’s trying to do or why

A Sean Hannity interview with Donald Trump is always a curious spectacle because the interviewer has disavowed journalistic ethics and the subject has no compunction about lying, so the entire affair has the atmospherics of a news program but the substance of a partially improvised drama. And what was so striking about the Thursday night Trump/Hannity interview at the US-Mexico border near McAllen, Texas is how perfunctory the script and the performance is.

Even when faced with some of the most egregious softball questions of all time, Trump is barely coherent — unable to describe in any detail what exactly it is that he wants, unable to cite any specific legal authority for a potential emergency declaration option, and unable to describe what such an operation would actually let him achieve.

The one subject on which Trump displays any actual passion is the perfidy of the “fake news” media — perfidy that he tells Hannity he learned about by watching an earlier episode of Hannity’s show.

The man whose whims plunged the nation into a massive crisis that has air traffic controllers working without pay, FBI agents worried that ongoing investigations will have to be dropped, Joshua Tree National Park irreparably damaged, and food inspections curtailed seems to have no idea why.

Trump can’t explain exactly what he’s proposing

One critical question in any political negotiation is what do the two sides want. Democrats’ view is fairly clear — they want to reopen the government, and then let negotiations over any additional requests for wall-building to proceed on a separate track. Trump, by contrast, insists the government must stay closed until he gets his way.

But what is it he wants, exactly? Trump can’t quite say. He seems to acknowledge that he is in fact not going to build the 2,000-mile wall he campaigned on by asserting that if the particular patch of border he is standing in front of was walled, then Border Patrol personnel could redeploy elsewhere. But how much wall are we talking about? And where? And at what cost? Trump doesn’t know.

Sean: There is no barrier. All those drugs get in if these guys can’t cover every inch of, you know, the 2,000 miles.

Trump: That’s right. They have easy access into the United States. We built a lot of wall. We have renovated tremendous amount of wall with money we have already gotten. And we are continuing that. But now we just really want to get it going and finish it up. We will build the new wall. And it’s common sense. It really is when you think of it, whether you are in to the world of law enforcement like these incredible folks behind us that understand the wall so easily, I mean it would make their job so much better. And they could also go to other areas because where you have the wall you don’t need so many people. We would probably pay for that many times in one year if you think about it. Just many times. So, it’s not a money thing. It’s a political thing. They look at the 2020 race and not feeling too good about it they will do whatever they can to win.

In fact, later in the interview Trump seems to acknowledge that the presence or absence of a physical barrier has very little to do with the main immigration policy argument happening in Washington.

“I don’t know how you recover after losing a child killed by illegal immigrants,” Hannity observes, as if it’s easy to bounce back from having your child murdered by a native-born American. “I have met and interviewed so many angel moms and dads.”

Trump expounds further on this theme, touching on the White House’s overarching argument that US law is too generous to asylum-seekers.

Death is pouring through. Not just at the border. They get through the border. They go and filter into the country. You was MS-13 gangs in different places like los Angeles and you have gangs all over Long Island which we’re knocking the hell out of. There should be no reason for us to have to do. This she shouldn’t be allowed. If we had the barrier they wouldn’t be allowed in.

Trump’s implication that Central American asylum-seekers are all dangerous gang members is a grotesque blood libel and it’s sad for America how mainstream it’s become. But for the purposes of the shutdown the key point is the one Trump himself makes here — asylum seekers are allowed in because applying for asylum is legal. The White House says it wants to the relevant laws. But with unauthorized immigration from Mexico down dramatically from where it was 15 or 20 years ago this — asylum-seeking — and not people sneaking across the border is the core of the debate. The wall is irrelevant.

And yet Trump is also prepared to argue that it’s some sort of emergency.

Trump can’t explain his emergency plan

As the partial shutdown wheezes into its third week, there’s a growing consensus in Washington that Trump’s way out of the bind will be to assert some kind of emergency wall-building power that turns this into a fight with the courts and let’s Trump reopen the government without seeming to back down.

But when Hannity brings this option up, presumably so that Trump can make the case for it, the president can’t be bothered to explain what powers he’s talking about asserting or why (he should maybe read Emily Stewart’s explainer). Trump says that he is “allowed to do it” meaning declare an emergency but he can’t describe what law allows him to do it or what such a declaration would let him do. He just starts rambling.

Hannity: You said earlier today that it’s likely that you are very likely going to declare a national emergency. How soon would that happen?

Trump: If we don’t make a deal with Congress, most likely I will do that I would actually say I would. I can’t imagine any reason why not because I’m allowed to do it. The law is 100 percent on my side. So, if we can’t make a deal with Congress, we should be able to make a deal with Congress. If you look, Democrats in Congress, especially the new ones coming in are starting to say wait a minute, we can’t win this battle with Trump because of the fact that it’s just common sense. How can we say that a wall doesn’t work? They show on helicopters empty fields and people just running through. And you put a wall, they can’t run through.

Then Hannity tries to help him out with a specific idea — maybe through an emergency declaration he could use Defense Department money to build a wall. But Trump immediately veers off track and starts talking about wheels.

Hannity: What are the options though if you declare a national emergency, the Pentagon also has the funds available that they would be able to help support the building of the wall.

Trump: If we don’t make a deal with Congress, which we should be able to. Really just common sense and there is some compromise needed and, look, they know that the wall is working. Do you know what works? A wheel. And a wall. They call it a medieval thing. Well, you know, I’m looking at all these very expensive cars all over here loaded up with machine guns and every single one of them has wheels. A wheel is an old thing. There are two things that they work. A wall would be so effective. It would solve so many killings and so much death and drugs and human trafficking. Where they tape up women on their face. They tape them up and put them in the back of a car or a van and they drive right through our border.

I’m not totally sure what Trump is talking about here, but more to the point Trump isn’t sure what Hannity is talking about which is why he started rambling about this. And yet Trump is the key decision-maker in this crisis. Then he throws himself a pity party.

Trump has no awareness of others

Well over a million people live in households relying on a federal paycheck that’s not coming tomorrow because of Donald Trump’s legislative tactics. Kids can’t go to the zoo, pilots are concerned about the safety of the aviation system, businesses that rely on timely economic data are flying blind, services for Native Americans are on the verge of breaking down entirely, and the economic consequences will only mushroom if multiple skipped paychecks lead to loan defaults and cascading problems.

Meanwhile, Trump missed his usual Christmas vacation at a luxury beach resort:

Trump: They know what I’m say something 100 percent right. It’s not only us, it’s everybody saying it everybody says it. If you don’t have a barrier, whether it’s a steel barrier or a concrete wall, substantial and strong, you never are going to solve this problem. You are never going to solve and I don’t need. This look, I could have done something a lot easier. I could have enjoyed myself. I haven’t left the white house because I’m waiting for them to come over in a long time. You know that. I stayed home for Christmas. I stayed at the white house for New Year’s.

Hannity: I think you tweeted Christmas Eve all alone, where is Chuck and Nancy?

Trump: My family, I told them stay in Florida and enjoy yourselves. The fact is I want to be in Washington. I mean, I consider it very, very important.

But this is the crux of the matter. He doesn’t consider this issue very important. It’s not important enough for him to offer Democrats anything of substance in a legislative swap, and it’s not important enough for him to have bothered to learn anything about the issue or even develop a specific proposal. He is imposing huge costs on a huge number of people, but he personally is suffering nothing more than the indignity of hanging out in the White House.

And he’s so unselfconscious that he actually threw himself a pity party in the midst of all the problems he’s causing. There’s no apology here for the inconvenience followed by an explanation of why he’s doing it. Because he’s not sorry. He wants us to feel sorry for him. And that in some ways is the most disturbing thing of all.

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jsled
6 days ago
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