Corbin K. Barthold, Author at Law & Liberty https://lawliberty.org/author/corbin-barthold/ Tue, 20 May 2025 19:56:48 +0000 en-US hourly 1 https://wordpress.org/?v=6.8.1 226183671 Age-Verification Laws are a Verified Mistake https://lawliberty.org/age-verification-laws-are-a-verified-mistake/ Thu, 09 Jan 2025 11:00:00 +0000 https://lawliberty.org/?p=64003 During Robert Bork’s bruising nomination process in 1987, a reporter realized that he and Bork frequented the same video store. This reporter hit on the idea of asking to see Bork’s rental history, and, lo and behold, a clerk coughed it right up. The list was not what sank Bork’s nomination—the good judge was fond […]

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During Robert Bork’s bruising nomination process in 1987, a reporter realized that he and Bork frequented the same video store. This reporter hit on the idea of asking to see Bork’s rental history, and, lo and behold, a clerk coughed it right up. The list was not what sank Bork’s nomination—the good judge was fond of Cary Grant and Alfred Hitchcock; there was nothing salacious. But there could have been, and lawmakers on both sides of the aisle were scandalized by the invasion of Bork’s privacy. Congress promptly enacted the Video Privacy Protection Act, which, if you still had a local Blockbuster to visit, would shield your video rental records from prying eyes to this day.

Now legislators, both state and federal, are going the other way. They’re introducing, supporting, and (only, so far, at the state level) enacting bills that impose age-verification requirements on social media platforms and adult websites. Current online age-verification techniques erode digital privacy: they create vectors for learning users’ identities and snooping on their browsing habits. Online age-verification laws increase the chances that, one day, we’ll have a Bork tapes-style scandal for real.

The point of online age verification is to protect children. But online age verification works only if everyone does it. On the Internet, nobody knows you’re an adult until you prove it (to the extent possible; all online age-verification systems can be gamed). To establish your age, you must tender some kind of personal data, thereby placing it at risk of exposure. Online age-verification laws thus burden the First Amendment rights of adults, by hampering their ability to post and view material on the Internet in anonymity. (They often burden the First Amendment rights of children, too, for example by excluding all minors from online spaces high schoolers are old enough to enter.) The courts have issued a string of preliminary injunctions blocking such laws from taking effect.

One of the new online age-verification laws has reached the Supreme Court. A Texas law (H.B. 1181) age-gates commercial websites that are at least one-third “sexual material harmful to minors.” Such websites must deploy an age-verification system based on digital IDs, uploaded government-issued IDs, or “a commercially reasonable method that relies on public or private transactional data.” The law instructs the entity that runs the age-verification system “not [to] retain any identifying information”; but it does not prohibit sharing such information with third parties, and it contains no data-security protocols of any kind. Free Speech Coalition, a trade group for the adult entertainment industry, challenged Texas’s policy in federal court. The case is Free Speech Coalition v. Paxton.

We’ve been here before. In 1998, Congress enacted the Child Online Protection Act (COPA), which required commercial websites to age-gate sexual material harmful to minors. Because it singled out, and impeded adults’ access to, such material, COPA was a content-based restriction on speech—and thus subject to strict scrutiny. So the Supreme Court held in Ashcroft v. ACLU. The justices went on to conclude that COPA likely failed strict scrutiny (more on that later). To grant Free Speech Coalition’s motion for a preliminary injunction against enforcement of H.B. 1181, the district court had only to follow Ashcroft. And that is what the district court did.

The US Court of Appeals for the Fifth Circuit reversed that decision, though. In Ashcroft, a divided panel found, COPA could have been subject to rational-basis review, but, in a “startling omission,” the government forfeited that argument and accepted strict scrutiny. 

What is actually “startling” is the panel majority’s willingness to evade Ashcroft on such a thin premise. As Judge Higginbotham noted in dissent, Ashcroft applied strict scrutiny because several other Supreme Court decisions required as much—the need for strict scrutiny was “self-evident.” And as Free Speech Coalition points out, the panel majority would have us believe that, in failing to push for rational-basis review, Attorney General John Ashcroft (a staunch social conservative), represented by Solicitor General Theodore Olson (an attorney of legendary talent), was blind to what would have been the government’s best argument.

Instead of applying Ashcroft, the Fifth Circuit excavated Ginsberg v. New York, which upholds, under rational-basis review, a law banning the sale of indecent material to minors. Ginsberg was about the in-person sale of lewd magazines. In-person age checks do not present the same problems as online age checks (the “data collection” of in-person age verification is often nothing more than a passing glance at a full beard, a wrinkle or two, or some gray hairs). Given the option to make peanut butter and jelly (H.B. 1181, Ashcroft), the Fifth Circuit decided to serve peanut butter and mustard (H.B. 1181, Ginsberg).

To survive strict scrutiny, a law must be narrowly tailored to serve a compelling state interest through the least speech-restrictive means available. Texas’s law cannot meet this test. It is loosely tailored and unduly restrictive.

Online age-verification laws sacrifice privacy, free speech, and parental authority on the altar of good intentions.

On the tailoring front, the law is both over- and underinclusive. It is overinclusive in that it age-gates in full even websites only one-third of whose content is harmful to minors. (Imagine a law that excludes minors from a whole movie theater, even if only a third of the movies are R-rated.) It is underinclusive in that it targets only commercial websites that meet the one-third threshold. Pornography is readily available in search-engine image results and on social media platforms not covered by Texas’s statute.

Texas could conceivably fix these tailoring issues, but the larger problem is that website-side age verification is not the least restrictive means of protecting minors online. COPA had little hope of satisfying strict scrutiny, Ashcroft explained, because it made more sense, on several levels, for parents to protect their children with device-side content-filtering software. Parental controls are less restrictive: they don’t sweep all adults into dragnet age verification, obstructing their access to content they have a right to view. They’re more precise: they enable parents to adjust the settings based on the age and maturity of their individual children. They’re more effective: they can block foreign websites, and they can’t be evaded with virtual private networks.

Although the Internet has changed a lot since Ashcroft was handed down, the difficulties with age verification have not shrunk. If anything, they have grown. We live in a time of data breaches. Once collected, the identifying information used for online age verification—government IDs, biometric data (e.g., face scans), credit card information—is asking to be hacked, mishandled, or misused. In the words of the Australian government: “Each type of age verification or age assurance technology comes with its own privacy, security, effectiveness or implementation issues.” (Australia is bulling ahead with age verification anyway. That’s politics for you.) Perhaps more advanced methods, with their device-side age tokens, “zero-knowledge proofs,” and the like, could one day make age verification less of a privacy risk; but such approaches remain little tested and decidedly unproven.

At this point, the conservative reader may be thinking that, since it’s pornography we’re talking about, we should just let Texas go for it. Let states age-gate smut, and let viewers of smut bear the cost. But there are several reasons to resist this reaction—even if you take protecting kids from online harm extremely seriously; even if you’re unmoved by the kind of privacy concerns made vivid by the Bork-tapes episode; and yes, even if you refuse to accept that pornography enjoys First Amendment protection.

To begin with, age verification for online porn, if allowed, would likely pave the way to age verification for social media. So what, you might say. But let’s pause over this. In many American institutions, conservative views are now denounced, disdained, and dangerous to express. Dissenters must watch what they say and how they say it. Conservatives living under conditions of progressive intolerance should jealously guard their right to anonymous speech, especially on social media. And for the time being, anonymity and age verification do not mix.

Even for conservatives, moreover, there is a lot to be said for viewing the dilemma of online pornography through the lens of harm reduction. The truth is, most adults—and many teens—admit to watching pornography. (How many teen boys view porn but won’t admit it? Food for thought.) Internet porn is not going anywhere. The evidence suggests that age-verification laws don’t work—websites ignore them, or people get around them with VPNs. But if they did work, they’d do more harm than good. Following a scandal over its failure to vet content, Pornhub invested in trust and safety, and it is now (as such things go) a relatively clean platform. Users shut out of this popular porn service will find their way to sketchier websites, located abroad, that do little or nothing to block content that’s some combination of extreme, abusive, and illegal. If you’re worried that your son is sneaking onto American porn websites, wait till he is seeking out Russian ones.

Many people—a related point—have clearly forgotten why, starting about fifty years ago, most everyone gave up on prosecuting obscenity. What’s the line between material that’s erotic and legal, and material that’s obscene (or obscene as to minors) and thus illegal (or regulable)? Irving Kristol wrote that the difference between erotic art and obscenity is that obscenity “deprive[s] human beings of their specifically human dimension.” Good luck turning that into a legal standard. Justice Potter Stewart was famously reduced to admitting that, while he couldn’t explain what obscenity was, he knew it when he saw it. Funny—but, again, not a legal standard. It’s very hard to police something you can’t define. At least, it’s very hard to do so without indulging in arbitrary or politically motivated uses of state power.

Finally, there is nothing conservative about letting the state try to look after your kids. If you’re not overseeing your children’s Internet use (including by discussing it with them, setting limits on screen time, and using parental controls), laws are not going to keep them out of trouble. And in any event, the proper conservative response, to a state intent on meddling in family affairs, is a hand gesture that’s material harmful to minors. Although Texas wants you to believe that it is merely cracking down on hardcore pornography, it is in fact claiming control over all erotic content that could offend even young children—a vast range of cultural material. Art, films, or literature that would shock a seven-year-old, but that could enrich the education of a seventeen-year-old, fall within H.B. 1181’s scope. Texas is seeking nothing less than to co-opt parents’ authority over what their children see and learn. If you invite the state to start trampling on your parental jurisdiction in this fashion, there is no telling where things will stop. Online age-verification laws may break in the right ideological direction, by your lights, but other laws may not. Far better not to let the state wedge itself between you and your children in the first place.

Online age-verification laws sacrifice privacy, free speech, and parental authority on the altar of good intentions. That conservatives are leading the charge to enact such laws is a sign that, sadly, the right’s once-celebrated vigilance against unintended consequences is slipping.

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NetChoice and the “Big Tech” Scare https://lawliberty.org/netchoice-and-the-big-tech-scare/ Wed, 10 Jul 2024 10:00:00 +0000 https://lawliberty.org/?p=59598 In 2021, conservative lawmakers were concerned about so-called “Big Tech” censorship. Fresh in their minds was Twitter’s and Facebook’s suppression of the Hunter Biden laptop story, as well as those platforms’ decision, in the wake of the January 6 Capitol riot, to ban Donald Trump from their services. In Florida and Texas, this concern translated […]

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In 2021, conservative lawmakers were concerned about so-called “Big Tech” censorship. Fresh in their minds was Twitter’s and Facebook’s suppression of the Hunter Biden laptop story, as well as those platforms’ decision, in the wake of the January 6 Capitol riot, to ban Donald Trump from their services.

In Florida and Texas, this concern translated into a pair of statutes that (among other things) heavily restrict social media platforms’ power to demote or block content. Gov. Ron DeSantis signed Florida’s SB 7072 into law in order to fight the liberal “Silicon Valley ideology” and hold “Big Tech censors” accountable. Supporting Texas’s HB 20, Gov. Greg Abbott complained that “social media companies … silence conservative viewpoints.” In both instances, all eyes were on the largest supposed “censors” and “silence[rs].” A service with fewer than 50 million monthly users and less than $100 million in annual revenue is not subject to either law.

When the statutes were challenged in court, the lawyers, district judges, and circuit judges who grappled with the cases took Florida and Texas at their word. They focused on whether the government may alter the balance of speech on the major social media platforms. Much litigation occurred; there were many twists and turns. Both district courts issued a preliminary injunction. On appeal, the Eleventh Circuit affirmed in pertinent part, while the Fifth Circuit reversed. At one point, the Supreme Court stepped in and granted emergency relief. All the while, though, the lion’s share of attention remained fixed on how the laws might affect “social-media behemoths like Twitter and Facebook,” as Florida put it in the first lines of its petition for certiorari.

The Supreme Court granted review in both cases—Moody v. NetChoice (SB 7072) and NetChoice v. Paxton (HB 20)—and last week it issued its decision. The ruling is at once a great surprise and a predictable outcome.

Let’s start with the surprise. All nine justices reject how the cases were framed below. The plaintiffs, a pair of trade groups, seek to have the laws struck down in full—in all their applications and for everyone. The justices find that “neither Court of Appeals properly considered the facial nature of [the plaintiffs’] challenge.”

For a law to be facially invalid under the First Amendment, Justice Kagan explains for the Court, “a law’s unconstitutional applications” must be “substantial compared to its constitutional ones.” But the lower courts looked only at “how the [Florida and Texas] laws applied” to things like “Facebook’s News Feed and YouTube’s homepage.” They did not consider whether or how the laws govern the major platforms’ “other services, like direct messaging or events management.” Nor did they consider whether or how the laws cover services such as Gmail, Etsy, Venmo, or Uber. In short, the lower courts “did not address the full range of activities that the laws cover, and measure the constitutional against the unconstitutional applications.” The Supreme Court therefore vacated the judgments and remanded the cases, directing the lower courts to perform the proper inquiry.

Now for the predictable development. A majority of the Court leaves no doubt as to its views on the point that everyone fought about below. Six of the justices confirm that, under well-established First Amendment law, “expressive activity includes presenting a curated compilation of speech originally created by others.” And five justices agree that “the Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression.” Texas, the five-justice majority says, “may not interfere with private actors’ speech to advance its own vision of ideological balance.”

The Fifth Circuit’s analysis rested, the majority concludes, “on a serious misunderstanding of First Amendment precedent and principle.” The majority proceeds to “explain why that is so” in an effort to “prevent the Fifth Circuit from repeating its errors,” on remand, “as to Facebook’s and YouTube’s main feeds.”

Along with Justice Kagan’s opinion for the Court, four concurring opinions, by Justice Barrett, Justice Jackson, Justice Thomas, and Justice Alito (joined by Justices Thomas and Gorsuch), will confront the lower-court judges on remand. These separate writings point out, in their varying ways, that the majority opinion leaves important matters unresolved. Justice Alito, in particular, is at pains to assure the lower courts that they continue to enjoy maximum discretion. The Court’s only binding holding, he observes, is that the plaintiffs “failed to prove that the Florida and Texas laws … are facially unconstitutional.” He all but invites the Fifth Circuit to reissue its original ruling, under the guise of some alternative theory, in defiance of the majority opinion’s guidance.

The NetChoice majority recounts a history of government attempts to “promote greater diversity of expression” through regulation.

So the parties will continue to litigate the NetChoice cases, hotly contesting the scope and substance of the Court’s decision.

But why?

It might seem like a silly question. And I have no illusions that I—who have believed from the jump that SB 7072 and HB 20 are folly—can convince Florida and Texas to consider it. But if only they would do so, they might start to wonder if their crusade has run its course. The online world looks rather different than it did in 2021, and the claim that “Big Tech censorship” poses a significant threat to “conservative viewpoints” seems flimsier than ever.

The most obvious change is that Elon Musk purchased Twitter, gutted its trust and safety team, and offered a “general amnesty” to accounts banned under the prior regime. Donald Trump’s account is back—though, tellingly, he seems no longer to want or need it. These days, the content moderation rules at what is now called X are ad hoc: the people who get banned are generally either personally offensive to Musk or mentally disturbed in the style of Kanye West. This is not the “free speech absolutism” that Musk sometimes, before the takeover, vowed to implement, but it seems to suit conservatives just fine. Indeed, some on the right celebrated Musk’s (short-lived) decision to ban liberal journalists who rubbed him the wrong way.

Facebook and YouTube, too, have loosened their rules (to howls of protest from progressives). Many Twitter users have migrated to Threads, Mastodon, or Bluesky. And many of us have sharply curtailed the time we spend on public-facing social media of any sort. Believe me, much of the best online conversation now occurs on the cozy web—private chat groups on Signal, WhatsApp, Discord, and Slack. Some contend that this fragmentation is a sign that mass social media’s brief heyday is drawing to a close. It might be that the age of centralized platforms—when it felt like Twitter, in particular, served as “a giant, asynchronous chat room for the world” (in the words of The Atlantic’s Ian Bogost)—was a passing phenomenon.

It is no longer possible (if it ever was) to think of any one social media platform as the “public square.” Public debate occurs on the internet as a whole. Conservatives correctly worry about their lack of artistic, cultural, and institutional clout; but they enjoy plenty of internet clout. On the internet, the mainstream media is struggling, while rightwing (or, at least, non-leftwing) media is thriving. The freshest outlets—e.g., Pirate Wires, The Free Press, Compact—are heterodox. The most interesting voices on Substack—e.g., N. S. Lyons, Paul Kingsnorth—are reactionary. Many journalists—e.g., Aaron Sibarium, Sanjana Friedman, Olivia Reingold, Julio Rosas—are doing serious investigative reporting from outside the liberal media bubble. The Daily Wire and PragerU create tons of conservative content, right down to children’s programming. Hillsdale College offers a lecture series that examines everything from the fall of the Roman Republic to chemistry through a traditionalist lens. There are more conservative podcasts than you can poke a stick at. Many of the most popular podcasts in the country are, if not on the right, immensely skeptical of the left.

Some conservatives worry that technology will eventually enable the government, corporations, or both working together to impose mass censorship and construct a social credit system. That might one day become a real concern. But for now, we actually have something like the opposite problem. Our immediate task is to overcome the disorientation wrought by an information explosion. Viewpoints are not scarce; they are abundant. The internet allows you to immerse yourself in almost any ideology you want. That creates its own set of problems, but they’re not problems to do with online censorship and the need for online “anti-censorship” legislation. (Especially not a patchwork of state legislation coming out of places like Tallahassee or Austin.) To clamor for such legislation anyway is to embrace the kind of victim mentality that was until yesterday a specialty of the left.

The rise of generative AI, by the way, will pile disruption on top of disruption. Assuming we don’t lock in the power of the major firms through regulation, we are likely to end up with AI assistants that can adopt almost any given worldview. Heretical ideas—and, with some luck, fresh thinking—will proliferate. That’s good, and laws like SB 7072 and HB 20 won’t be needed to help things along. Meanwhile, spam and other synthetic content will flood online spaces. That’s bad, and such laws would make things worse.

The NetChoice majority recounts a history of government attempts to “promote greater diversity of expression” through regulation. But “in case after case,” the majority reminds us, “the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm.” However “imperfect the private marketplace of ideas, here [i]s a worse proposal—the government itself deciding when speech [i]s imbalanced, and then coercing speakers to provide more of some views or less of others.” Government intervention is indeed the worst proposal. And anyway, the online marketplace of ideas might not be so imperfect after all.

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Heretical Thoughts on Axon v. FTC https://lawliberty.org/heretical-thoughts-on-axon-v-ftc/ Tue, 02 May 2023 10:00:00 +0000 https://lawliberty.org/?p=45161 If a federal agency hauls you into its administrative tribunal, may you file a separate lawsuit, in federal court, challenging the constitutionality of the tribunal itself? Last month, the Supreme Court said yes. It did this in two cases, Axon Enterprise, Inc. v. FTC and SEC v. Cochran, but for simplicity’s sake let’s home in […]

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If a federal agency hauls you into its administrative tribunal, may you file a separate lawsuit, in federal court, challenging the constitutionality of the tribunal itself? Last month, the Supreme Court said yes. It did this in two cases, Axon Enterprise, Inc. v. FTC and SEC v. Cochran, but for simplicity’s sake let’s home in on one of them, Axon, which involved the Federal Trade Commission (FTC).

There is much to be said for the result. The FTC’s in-house court is practically rigged—the agency almost never loses. And it might well be unconstitutional, just as the underlying lawsuit alleges, and as Justice Thomas argued in a separate opinion. The ruling also makes sense. The FTC Act says at Section 5(c)—15 USC § 45(c)—that “an order of the Commission” shall be reviewable in a federal court of appeals. The federal question statute—28 USC § 1331—says that the federal district courts shall have jurisdiction over “all civil actions arising under” the Constitution or federal law. The lawsuit does not contest “an order of the Commission.” It contests the constitutionality of the whole proceeding. That’s a claim that Section 1331 normally gives federal district courts jurisdiction to consider.

Sound result, sound reasoning. What more could one want?

Actually, one thing. Axon was unanimous—and it needed a dissent.

An Approach “Productive of Nothing More Than Chaos”

The FTC’s five commissioners decide whether to file a complaint with the agency’s administrative law judge (ALJ), and they also review the ALJ’s decision before the case heads to the federal court of appeals. Meanwhile, the ALJ enjoys “dual-layer” removal protection: both he and his bosses—the commissioners—can be fired only for cause. The petitioner before the Supreme Court—Axon Enterprise, a company known for making police body cameras—is a respondent in a proceeding before the FTC. Axon believes that the commissioners’ combination of functions (prosecutor plus judge) and the ALJ’s dual-layer job protection violate the Constitution. Rather than endure a trial before the ALJ, as well as an appeal before the commissioners, before pressing its constitutional challenges in a federal court of appeals, Axon proceeded directly to federal district court. This, the Supreme Court ruled, Axon may do.

That Congress “specif[ied]” in Section 5(c) “a different method to resolve claims about agency action,” the justices unanimously concluded, does not mean that it “implicitly” narrowed the district courts’ jurisdiction to hear cases under Section 1331. The majority opinion, authored by Justice Kagan, reaches this result by applying a three-factor test derived from Thunder Basin Coal Co. v. Reich (1994). In all, eight justices joined in the opinion—and, thus, in the application of the Thunder Basin factors. They found as follows: First, “precluding district court jurisdiction” would “foreclose all meaningful judicial review” of Axon’s claims. (This because Axon is suffering a “here-and-now” injury—more on that later.) Second, those claims are “wholly collateral” to the FTC Act’s “review provisions.” And third, “the claim[s]” are “outside the agency’s expertise.”

Writing separately, Justice Gorsuch concurred in the judgment, but rejected Thunder Basin’s “judge-made, multifactor balancing test.” He scoffed at “Thunder Basin’s throw-it-in-a-blender approach to jurisdiction.” He derided the “incoherence” of “the Thunder Basin project.” He urged the Court to get off “the Thunder Basin roller coaster” and start “resolving jurisdictional disputes by looking to the terms of the statutes Congress has adopted.” “Nothing,” he insisted, “gives courts authority to engage in this business of jurisdiction-stripping-by-implication.”

I’m all for kicking holes in Thunder Basin. But it does not follow, as Gorsuch maintains, that judges should never find an “implicit” congressional intention, in a statute, to “divest district courts of jurisdiction in favor of certain agency proceedings.”

Say you think a state-court judgment is unconstitutional, and you want a federal judge to overturn it. Invoking Section 1331, you sue in federal district court. Your complaint, I assure you, will be dismissed. Why? Not because a statute explicitly divests the district courts of jurisdiction. Rather, because 28 USC § 1257 says that “final judgments . . . rendered by the highest court of a State . . . may be reviewed by the Supreme Court.” Rooker v. Fidelity Trust Co. (1923) finds that this statute (implicitly!) strips the lower federal courts of jurisdiction.

For that matter, say you think a proceeding before the FTC is unlawful, and you want a federal court to enjoin it. The Administrative Procedure Act permits federal courts to review an “agency action” once it is “final” (e.g., when an agency’s internal trial and appeal are complete). In FTC v. Standard Oil Co. of California (1980), a company asked a federal court to block a proceeding in the FTC’s administrative tribunal. The company argued that the prosecution was baseless and politically motivated. No matter, the Court said. Comply with the APA, and await final agency action, before seeking review in federal court. Nothing in Standard Oil hints that, if only the company had put Section 1331 to creative use, it could have stayed in federal court.

Rooker and Standard Oil stand on a straightforward assumption: Congress crafts distinct jurisdictional schemes in the expectation that they will be used. To be sure, specific grants of jurisdiction don’t always trump general ones. It depends on the circumstances. (I suspect, for example, that Congress has gotten better, over time, about using precise language when it wants to close the door on jurisdiction.) Judges must try to make statutes fit together. To accept that specific jurisdictional statutes sometimes trump general ones is not, as Gorsuch supposes, to “froth” the “plain statutory text” with “factors of [judges’] own design.” It is simply to introduce a modicum of common sense into statutory interpretation, the better to ferret out Congress’s design. In hard cases, “judgment” is not a dirty word. (That great textualist, Justice Scalia, understood this.)

The Court has often had—and benefited from having—that one curmudgeonly justice who errs on the side of keeping the federal judiciary to a limited agenda. Axon Enterprise Inc. v. FTC was a missed chance for someone to carry on the tradition.

Gorsuch is demanding something very like strict construction. (And not for the first time.) Section 1331 says that district courts “shall” have jurisdiction over “all” civil actions “arising under” the Constitution or laws of the United States. Gorsuch: “End of case, right?” But by this logic, litigants before the FTC would never have to follow Section 5(c) and wait for “an order of the Commission” before suing in federal court. They could always head directly to federal court by trying to stand their challenge on the adequacy of the complaint or the nature or legitimacy of the proceeding itself. And that would make a hash of Congress’s work—as many judges have recognized. They have instructed parties not to “short circuit” Congress’s “procedure for judicial review of administrative actions.” Parties “may not bypass” the “specific method” for review “that Congress has provided,” they have said, “simply by suing the agency . . . under 1331.” They have declared that federal jurisdiction “is not an escape hatch for litigants to delay . . . administrative action.” The point of “having a special review procedure in the first place,” they have observed, is to avoid “bifurcat[ed] jurisdiction,” “duplication,” and “inconsistency.” They have warned that ignoring Congress’s specific review schemes “would be productive of nothing more than chaos.”

Granted, a litigant that uses Section 1331 to invoke jurisdiction might still lack a cause of action. It is probable that only a constitutional claim will do. But many distinguished judges, upon considering this point, have still spotted the camel’s nose inside the tent. Here is an example: “An exception to an otherwise exclusive scheme for constitutional challenges in general, or facial attacks on a statute in particular, or some other as-yet-undefined category of constitutional claims”—this is Judge Srinivasan, joined by Judge Randolph and then-Judge Kavanaugh—“would encourage” parties “to frame their challenges to the Commission’s actions in those terms and thereby earn access to another forum.” (“We doubt,” they go on, that “Congress intended that result.”) Here’s another one: “The Bank has been called upon, much to its chagrin, to participate in a proceeding that lies beyond what [it] believes to be [the agency’s] lawful powers”—this time we have Judge Starr, joined by Judges Silberman and Sentelle—yet it must “patiently await the denouement of proceedings within the Article II branch.” In all these judges’ view (unless Kavanaugh, who went with the crowd in Axon, has changed his mind?), a constitutional claim should not be a ticket out of an agency proceeding.

There is nothing unusual, by the way, about making a party slog its way to relief. When things go sideways, constitutionally speaking, in state criminal trials, for instance, criminal defendants are almost never allowed to run to federal court for help. Some people suffer the ordeal of wrongful prosecution, and Axon might have had to do the same. The Axon majority responds—and Gorsuch agrees—that Axon was facing a special “here-and-now” injury, in the form of “subjection to an unconstitutionally structured decision-making process.” But tell that to the criminal defendant from whom the government withholds evidence, or who suffers racially biased jury selection. From the victim’s perspective, the harm of an unjustified proceeding is the harm of an unjustified proceeding. (Notice too that nothing in the text of Section 1331 lets Gorsuch create a special rule for supposed “here-and-now” injuries.)

If what we care about is plain statutory text, perhaps what we should focus on is the text of the APA—Congress’s effort (long after it enacted Section 1331) to codify the federal courts’ jurisdiction over the administrative state. A court’s power to review a final agency action, under the APA, includes the power to review related preliminary actions. According to Gorsuch, Axon is “not subject to,” and “do[es] not seek review of,” any such “thing”—but Standard Oil disagrees. The “issuance of [a] complaint” by the FTC, it concludes, is indeed a preliminary “agency action.” Axon believes that the FTC’s complaint is ultra vires. The APA funnels an attack on this preliminary agency action through “the special statutory review proceeding” that Congress has created for the agency in question. Under the APA, therefore, Axon must proceed before the FTC, obtain “an order of the Commission,” and then challenge the filing of the complaint before a federal court of appeals. End of case, right?

A Curmudgeon’s Guide to Jurisdiction

The judicial branch’s jurisdiction is constrained by the Constitution and defined by Congress. But the Supreme Court gets to decide for itself what all that means. Surprise, surprise: the Court is good at convincing itself of its own power to act. I readily admit that I’m quoting a justice writing for himself alone when I suggest that “federal judges” be “careful to construe their own authority strictly.” Or when I urge them to “avoid gratuitous exercise[s] of the judicial power.” Or when I implore them not to “rush out and meet the prospective constitutional litigant as he approaches [their] doors.”

The Supreme Court’s cases on jurisdiction have a way of drawing lone dissents. The Court has often had—and benefited from having—that one curmudgeonly justice who errs on the side of keeping the federal judiciary to a limited agenda. Axon Enterprise Inc. v. FTC was a missed chance for someone to carry on the tradition.

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The Quest for a Better Online “Community” https://lawliberty.org/making-a-better-online-community/ Mon, 16 May 2022 10:00:00 +0000 https://lawliberty.org/?p=34081 Remember Justine Sacco? In December 2013, while sitting in Heathrow Airport, she tweeted: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” She had 170 Twitter followers. No one reacted to her crude crack at her own entitlement. She boarded her flight. Eleven hours later, she landed in Cape Town and turned […]

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Remember Justine Sacco? In December 2013, while sitting in Heathrow Airport, she tweeted: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” She had 170 Twitter followers. No one reacted to her crude crack at her own entitlement. She boarded her flight. Eleven hours later, she landed in Cape Town and turned on her phone. The first thing she saw was a text message from an old friend: “I’m so sorry to see what’s happening.”

While Sacco had been airborne, her tweet had gone horrifically viral. It had stirred up a storm of smug indignation and gleeful anger. A hundred thousand people had tweeted their condemnation, calling her disgusting, stupid, and racist (for a start). The hashtag #HasJustineLandedYet had trended. “All I want for Christmas,” typed one member of the mob, “is to see @JustineSacco’s face when her plane lands and she checks her inbox/voicemail.” Sure enough, someone took a photo of Sacco arriving in Cape Town, and that went viral. She promptly lost her job.

As Jon Ronson recorded in his 2015 book So You’ve Been Publicly Shamed, Sacco’s ordeal is emblematic of life on Twitter. “Everyday people, some with young children,” he found, get “annihilated for tweeting some badly worded joke.” At its worst, the platform seems like a plot device for an episode of The Twilight Zone or Black Mirror (as, in the latter case, it has been). If Twitter is now the “town square,” as some like to claim, it is a disturbing one. “Try to get a group of 100 ideological allies together to follow someone around a public park in the center of town shrieking at them,” the internet researcher Renée DiResta muses, “and see how that plays out.”

Kingsley Amis once complained that the word “brutalize” has been “perverted by Americans and others to mean ‘treat brutally.’” The term was “once happily and usefully settled,” he reminded us, “in the meaning of ‘render brutal.’” Clutching the strict definition tightly, we might ask: Has Twitter brutalized us? Has it made us into brutes?

The news of the day (the fate of Roe v. Wade excepted) is that Elon Musk, the richest man in the world, has reached a deal (in principle) to buy Twitter. Conservatives have rejoiced at this turn of events, and well they may.

The major social media platforms have gone, in just a few years, from blocking beheading videos to arbitrating truth. They now take it upon themselves to supervise public debate, such as by suppressing discussion of the Covid lab-leak theory. And they have fallen into the habit of granting special protections to favored groups. The Babylon Bee, for instance, has been suspended from Twitter for months. Is this because the parody site, say, baselessly labeled someone a white supremacist? Of course not; they tweeted a satirical headline that misgendered a public figure. (On Twitter, it appears, all insults are equal, but some insults are more equal than others.)

Conservatives look upon all this and see oppression. They hope that, with Twitter under Musk’s control, a new balance will be struck. Fair enough. An argument about how actively the platforms should moderate content is an argument worth having.

Many conservatives go much further, however. They assert not that Twitter should block less speech, but that Twitter should hardly block speech at all. Musk himself has followed their lead, floating the idea that the site should allow all speech “within the bounds of the law.” But that’s a pipe dream. The category of legal speech includes racial slurs, graphic violence, targeted harassment, and worse. Every social media service discovers, sooner or later, that content moderation is unavoidable. Presented with hard cases, Musk retreats.

But set to one side the weakness of the anything-goes position. Instead, consider who is promoting it. Of all the possible universes, we have landed in one where some conservatives are fighting tooth and claw for havoc, for anarchy, on Twitter. How contingent. How surprising!

The “essence” of conservatism, declared Robert Nisbet, is “the protection of the social order.” As a conservative himself, therefore, Nisbet worried about “personal alienation and cultural disintegration.” Hardly anyone did more to define the American conservative movement than Russell Kirk—and he shared Nisbet’s concerns. Kirk believed that “modern society urgently needs true community,” by which he meant social relationships “governed by love and charity.”

What might accelerate “cultural disintegration” and undermine “true community”? Lax conduct and dissolute beliefs, the conservative once replied. Robert Bork used to fret about slipping standards of “permissible public behavior and language.” In 1995, in fact, he predicted with dismay that “the new technology” of the Internet would “almost certainly make our culture more vulgar and violent.”

It’s difficult to know what, now, to make of these statements. Are they the entrails of a dead ideology? Surveying Twitter, with its invective and its baseness, its incels and edgelords and roving gangs of psychopaths, would Nisbet, Kirk, and Bork throw up their hands? Maybe. Then again, maybe not. An alternative possibility is that their comments point to a path not taken—a world in which conservatives are the ones pushing for more respect, more civility, and more community on the web.

Hand conservatives the keys to Twitter and Facebook—and TikTok and Snapchat and Reddit—and liquid modernity would continue to corrode every variety of hierarchy and tradition.

Do conservatives really have no aspirations for social media beyond stopping so-called “Big Tech censorship” and “owning the libs”? If so, they might ask whether social media itself has goaded them into shutting their minds. The social psychologist Jonathan Haidt contends that social media is causing “structural stupidity.” He likens a Twitter account to a dart gun: a mean tweet can be used “to shame or punish someone publicly while broadcasting one’s own virtue, brilliance, or tribal loyalties.” Handing these dart guns to millions has, in Haidt’s view, harmed our political process, our culture, and our societal health.

On social media, observes Haidt, bad rhetoric often drives out good. “The dart guns of social media,” he submits, give “power to trolls and provocateurs while silencing good citizens.” A “small number of jerks”—the loudest, meanest users—often come to “dominate” a forum. “The main thing I have learned from Twitter,” the tech entrepreneur Sam Altman tweeted not long ago, is that “people appear to derive great satisfaction from being unhappy.” As Altman would be the first to recognize, those unhappy people are self-selected. “Nonjerks,” Haidt wryly remarks, “are easily turned off from online discussions of politics.” As “a small number of aggressive people . . . attack a much larger set of victims,” those victims—that is, the sane people—absent themselves from the conversation. The upshot, concludes Haidt, is an online discourse that tilts toward hysteria and barbarism.

The jerks, Haidt goes on, are outliers not only in tone, but also in substance. Blowhards, generally speaking, are not skeptics. “The dart guns of social media give more power and voice to the political extremes,” therefore, “while reducing the power and voice of the moderate majority.” This is mainly because the jerks, with their strong opinions—and the aid of algorithms that boost provocative content—rule the roost. But Haidt also identifies a more insidious factor: social media strengthens fanatics’ ability to demand loyalty and purity. “Political extremists,” Haidt notices, “spend a lot of their ammunition targeting dissenters or nuanced thinkers on their own team.” On both Left and Right, it is now “more hazardous to be seen fraternizing with the enemy or even failing to attack the enemy with sufficient vigor.”

Of particular concern, “younger progressive activists” use social media to intimidate the “older liberal leaders” of elite institutions. Bending to the will of the radicals, health officials put politics above the practice of medicine, museum curators denigrate their own collections, corporate executives denounce their own customers, and magazine editors snivel about their privilege and ignorance. Expertise and legitimacy are burned at the altar of social justice. At institutions where “dissent is punished” and moderates have “learned to keep quiet,” Haidt sighs, “bad ideas get elevated into official policy.”

Haidt acknowledges that social media has “given voice to some people who had little previously” and “made it easier to hold powerful people accountable for their misdeeds.” What worries him, ultimately, is not social media per se, but what he calls “enhanced virality.” On Twitter, jokes Nilay Patel, editor of the tech news website The Verge, “the worst possible thing” could happen to you “at any moment”—namely, your “tweet will go viral.” The zealots will assemble, and you will find yourself at the center of the next pile-on, mass-shaming, or vicious political dispute. Though not without its charming corners, in the end Twitter functions as a giant Thunderdome.

The root of the matter, it would seem, is size. “I think scale is problem number one,” says a former Facebook product manager. In our “quest for community”—to borrow Nisbet’s phrase—we might need to rediscover the value of the small and the local. “Communities and cultures differ on what norms and values should shape their common spaces,” DiResta explains. “It may simply be that when networks grow past a certain size, they become unmanageable.”

While politicians, pundits, and the wider professional-managerial class obsess over what can be said on the major platforms, programmers are trying to diminish the issue altogether. As the Wall Street Journal recently reported, one social media startup aims to curb abuse by “capping the size of groups.” Another is placing users’ content “behind their user icon, no matter how often they post,” in an attempt to create space for “the quieter, more moderate voices.” Yet another is trying to cool the rhetoric down by engaging more with users who violate the rules. Facebook, the article reveals, is working on “community messaging, building tools that make it easier to connect with small groups of family and friends.”

Twitter, meanwhile, is supporting a project called Bluesky, an effort to create a common protocol on top of which distinct social media products can operate. Services could offer competing newsfeed algorithms and standards of content moderation. Groups could coalesce around shared interests, set their own rules of governance, and decide for themselves how much to interact with the wider system. Power would be dispersed. More speech would be allowed; less speech would go viral. Ideally, there’d be a little more freedom, a little more community, and a lot fewer Justine Saccos.

“Heavyhanded attempts to censor extremism are bound to fail,” insists Freddie deBoer, the prominent Marxist Substacker, “because the flow of information cannot be stopped in the digital era.” His point, directed at liberals, is that no amount of content moderation will stamp out opinions they dislike. He could easily have looked the other way, though, and reminded conservatives that the Internet is much more than a given social media platform. Should Twitter be more open? More closed? More decentralized? Should it focus on free speech? Safety? Healthy conversation? What we want here matters—but not a lot. The “digital era” will roll on regardless.

If you believe that Twitter is biased in favor of liberals, by all means applaud Musk’s deal to purchase it. When you’re done, though, pause and reflect. Hand conservatives the keys to Twitter and Facebook—and TikTok and Snapchat and Reddit—and liquid modernity would continue to corrode every variety of hierarchy and tradition. Some have turned grousing about content moderation into a pastime, a passion, or a source of profit. Maybe that’s time well spent. Then again, maybe it’s not. The rest of us might be better off devoting ourselves to something else, like the hard work of building a sense of community, online and off, in a coldly postmodern world.

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No Legislation Without Representation https://lawliberty.org/no-legislation-without-representation/ Mon, 18 Apr 2022 10:00:00 +0000 https://lawliberty.org/?p=33253 “What was essentially a legislative determination… was made not by Congress or even by the Executive Branch but by a private group.” Those unsettling words come from a statement issued March 28 by Justice Alito, with whom Justices Thomas and Gorsuch joined, respecting the Supreme Court’s decision not to review yet another dispute involving the […]

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“What was essentially a legislative determination… was made not by Congress or even by the Executive Branch but by a private group.” Those unsettling words come from a statement issued March 28 by Justice Alito, with whom Justices Thomas and Gorsuch joined, respecting the Supreme Court’s decision not to review yet another dispute involving the Affordable Care Act. On this occasion, though, the source of controversy was not the notorious ACA itself, but federal agencies’ willingness to hand the sovereign power to regulate over to private citizens.     

A state partaking in Medicaid (as all states do) must ensure that it pays its share of the program’s expenses “on an actuarially sound basis.” Congress has not defined the term “actuarially sound”; it assigned that task to the Department of Health and Human Services. HHS, in turn, decided that a state’s Medicaid budget is “actuarially sound” if a qualified actuary applying rules set by the Actuarial Standards Board—a private entity—declares it so. The ACA imposed a large tax—some $15 billion in all at its height in 2020—on private health insurers. The Actuarial Standards Board resolved, in the name of “actuarial soundness,” to require that states cover the tax for privately run Medicaid plans. This cost the states hundreds of millions of dollars. Five states sued, arguing that HHS had improperly delegated lawmaking power to a private party. Although the district court agreed, the Fifth Circuit reversed. The arrangement was copacetic, the panel ruled, because HHS “reviewed and accepted” the private board’s standards.

Judge James Ho, joined by four other judges, unsuccessfully urged the full Fifth Circuit to rehear the case. “Our laws are supposed to be written by members of Congress,” objected Ho, “not by private interests pursuing unknown private agendas.” 

Judge Ho could find no precedent for allowing an agency to “re-delegate” regulatory power to a private body without Congress’s permission.

Article I of the Constitution vests “all legislative Powers” in Congress. It is bad enough, Ho observed, when Congress violates Article I by delegating its lawmaking power to another branch of government. The case at hand was even worse, because it involved a “‘double delegation’ from Congress to public bureaucrats to private parties.” Unlike a government agency, a private board is not even “minimally accountable to the public in some way.” And although HHS could in theory overturn the board’s decisions—a point the panel had stressed—the fact remained that the board lacked the legal authority to act in the first place. Ho could find no precedent for allowing an agency to “re-delegate” regulatory power to a private body without Congress’s permission.

Noting that Congress repealed the pertinent tax during the course of the litigation, Alito, Thomas, and Gorsuch “reluctantly concurr[ed]” in the Supreme Court’s decision not to grant review. But they pushed the Court “to clarify the private non-delegation doctrine in an appropriate future case.”     

That case could soon arrive, in the form of a challenge to the Federal Communications Commission’s administration of a program called the Universal Service Fund. A creature of the Telecommunications Act of 1996, the USF pays for schools, libraries, healthcare providers, and remote areas to obtain “advanced telecommunications and information services,” such as broadband. Congress empowered the FCC to define what services should be “universal,” to set the amount of money the government will collect to promote those services, and to determine how the money is spent. Even if the FCC ran the USF all by itself, the statute behind the program would raise a delegation problem.

But that’s not what the FCC does. Instead, the agency has shifted the running of the USF to something called the Universal Service Administration Company. Like the Actuarial Standards Board, the USAC is a private entity. The money for the USF comes from a tax paid by telephone companies. The USAC announces what this private-sector “contribution factor” should be—the statute does not cap the sum that can be demanded—and, if the FCC takes no action within two weeks, the figure is “deemed approved.” The FCC appears never to have rejected a USF budget set by the USAC.

The USAC openly promotes its board members’ close ties to companies and groups “interested in and affected by universal service programs.” With such people in charge, things have gone precisely as one would expect. What started as a 5.7% tax rate on end-user interstate telecom revenue, in 2000, ballooned to a 33.4% rate by mid-2021. The annual “contributions” have more than doubled over that period, hitting nearly $10 billion last year. Waste, fraud, and abuse have been rampant. (To crown all, the USF fee is highly regressive. It is a flat tax on average Americans, paid as a line item on their monthly phone bills.)

Last year a consumer-protection group, a small telecom provider, and others started lodging comments, with the FCC, contesting the constitutionality of the USAC. When the FCC ignored them, these petitioners took their cause to federal court. Cases are currently pending in the Fifth and Sixth Circuits.

The Supreme Court has considered private delegation before, including in the famous case of Schechter Poultry v. United States (1935). The National Industrial Recovery Act of 1933 permitted the President to adopt “codes of fair competition” presented by industry groups. Before the Supreme Court, defending a “live poultry code” drafted by New York chicken dealers and approved by FDR, the government sought to paint the private drafting of laws as a virtue. Private delegation, it claimed, would produce codes “deemed fair for each industry” by those “most familiar with its problems.”

The “live poultry code” in Schechter Poultry contained restrictions that appeared to target kosher butchers.

The Court took a different view. Sure, it said, trade groups “are familiar with the problems of their enterprise.” But “would it seriously be contended” that Congress “could delegate its legislative authority” to those groups, in the expectation that they would enact “wise and beneficent” laws for “their trade or industries?” “The answer,” the Court concluded, “is obvious. Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress.”

What makes Schechter Poultry famous is that it branded the NIRA an illegal delegation of legislative power to the President. The discussion of private delegation was an aside. A year later, though, in Carter v. Carter Coal Co. (1936), the Court called private code-drafting “legislative delegation in its most obnoxious form.” This time, the denunciation of private delegation was part of the Court’s holding. Such delegation, the Court explained, “is not even delegation to an official or an official body, presumptively disinterested.” It is, rather, delegation “to private persons whose interests may be and often are adverse to the interests of others in the same business.” (Indeed, the “live poultry code” in Schechter Poultry contained restrictions that appeared to target kosher butchers.) 

“Would the States conceivably have entered into the Union,” Justice Scalia once asked in a dissent, “if the Constitution itself contained the Court’s holding?” A ruling that endorsed private delegation would surely fail that test. “If one maxim reflected Americans’ ideas of representation,” Jack Rakove proposes in Original Meanings, his Pulitzer-Prize winning book on the drafting of the Constitution, it was the belief, captured in a remark by John Adams, that “a representative assembly ‘should be in miniature an exact portrait of the people at large.’” The colonists rejected “virtual” representation, a concept invoked by the British to defend the prerogatives of an oligarchic Parliament riddled with rotten boroughs. As the eminent historian Gordon Wood puts it: “This notion of being virtually represented struck Americans then, and us today, as absurd.”

Not everyone was convinced of the practicality, or the wisdom, of ceding every choice to the unadulterated enthusiasm of the vox populi. During the debates over ratification, Hamilton complained that “the idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary.” Madison wanted wise representatives to pursue “the true interest of their country,” even when it diverged from the views “pronounced by the people themselves.” 

It is probably in the “populist Anti-Federalist calls for the most explicit form of representation possible, and not in Madison’s Federalist No. 10,” Wood opines, where “the real origins of American pluralism and American interest-group politics” are to be found. But in any event, even those who favored a more “filtered” representation wanted what Madison called “proper guardians of the public weal,” and not “advocates and parties to the causes which they determine.” If the Constitution had blessed private lawmaking—to return to Scalia and his test—“the delegates to the Grand Convention would have rushed to the exits.”

Keen to narrow the gulf between the system we have and the system of the Founders’ design, a majority of the justices on the Supreme Court have expressed an interest in strengthening the principle of nondelegation. It is not obvious how far the Court should go—or how far it can get—in using nondelegation to restore limited and accountable government. Ensuring that the power to make laws does not fall into private hands, however, would be a fine first step.

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Year One, Then and Now https://lawliberty.org/year-one-then-and-now/ Thu, 30 Apr 2020 10:05:00 +0000 https://lawliberty.org/?p=13002 “Wo to the land,” lamented Carlyle, “over which Sansculottism, in its day of vengeance, tramps roughshod—shod in sabots!” The sans-culottes’ fervor was on grand display when, in September 1792, murder squads stormed the jails of Paris, killing more than a thousand clerics and political prisoners. So too the following year, when the National Convention issued […]

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“Wo to the land,” lamented Carlyle, “over which Sansculottism, in its day of vengeance, tramps roughshod—shod in sabots!”

The sans-culottes’ fervor was on grand display when, in September 1792, murder squads stormed the jails of Paris, killing more than a thousand clerics and political prisoners. So too the following year, when the National Convention issued a warrant for the arrest of all suspected opponents of the Revolution. By the fall of 1793, all of France lived in fear. In the capital, purges were the order of the day. The Girondins were purged; the Hébertists were purged; the Dantonists were purged. After being sentenced to die, one Girondin deputy committed suicide. The next day his body was guillotined anyway. In the countryside, meanwhile, representatives-on-mission massacred noble and peasant, priest and nun, mother and child. In Nantes, most of the victims were drowned in the river.

The Terror was not some freak byproduct of the French Revolution. The revolutionary government “had lived since 1789,” François Furet observed, “on the idea of a new absolute—and indivisible—sovereignty, which excluded pluralism of representation because it assumed the unity of the nation.” “Since that unity did not exist,” the “function of the Terror, as well as of purging elections, was invariably to establish it.” The revolutionaries thought they could create a new world. A world of harmony, where everyone agrees. But they could create this paradise only by rejecting compromise, dismantling checks and balances, and violently crushing dissent. Without terror, Robespierre explained, virtue is powerless.

In an Atlantic essay entitled “The Revolution is Under Way Already,”  Professor Rebecca Spang seeks to apply some of the lessons of the French Revolution to our current predicament—though not the lessons you might expect.

Spang focuses on the aspects of the Revolution that suit her. Even those are not altogether marvelous. Take, for instance, the many entitlements the people supposedly gained from the new regime. “For a short time at least,” Spang writes, the revolutionaries “defined employment, education, and subsistence as basic human rights.” Back in reality, they provided almost none of the fine-sounding things they compulsively put to paper. They could not even offer freedom of conscience. The only valid opinions were those espoused by the left-wing oligarchs in the seat of power. The rulers had a sacred duty not to tolerate other ones. “If the people do not leap quickly to the pinnacle of their destiny,” Robespierre wrote in 1794, “it can only be the fault of those who govern them.” Saint-Just was a little blunter: “Imprisonment,” he exclaimed, “is the progress of reason and justice.”

It was, of course, no better with religion. The government closed the churches of Paris, and Notre Dame was converted into a temple of rationality. A propaganda campaign was waged to boost the unpopular new civic religion. The majority’s faith counted for nothing; the citizenry would convert to correct belief—the Cult of Reason—or else.

If we are to have a revolution, let’s have one in which we recommit to the principles of liberty and moderation.

Alongside a dash of snark (“the 18th century—a time some still call the ‘Age of Enlightenment’”), a pinch of Marxist rhetoric (our nation might “implode” under its “grave contradictions”), and a splash of wealth theory from the school of Howard Zinn (obsessed with exploitation; silent about innovation), Spang slips in some shrewd questions: Are we at the beginning of a revolution? Do we want to be? Spang seems rather sanguine, even a touch giddy, about the prospect of answering yes. “To claim this moment as a revolution,” she says, is “to claim it for human action.” We are not “fated to see a Reign of Terror,” she assures us, even though in her view “everything is up for grabs.” “We need to imitate not the outcome of the French revolution but the energy, creativity, and optimism of the French revolutionaries.”

If history teaches us anything whatsoever, it is that acting like “everything is up for grabs” is precisely what produces reigns of terror, and that the revolutionaries’ “energy, creativity, and optimism” cannot be separated from the horrors they brought forth. The revolutionaries naively believed that they could do anything through politics, even construct a better society from scratch. They were animated by an undaunted zeal to bring that society about. On the whole, their intentions were pure. The historian David Andress notices the “dedication of Robespierre and his cohorts to the well-being of their fellow citizens.” These men were propelled, Andress reminds us, by a “stark certainty that devotion to the cause of liberty and justice licensed them to eliminate opposition by means beyond the rule of law.” “It was a formula,” he concludes, “for an ever-narrowing definition of political purity and legitimacy”—and thus for ever-intensifying fits of rage and violence.

Comparisons can “easily be made,” Spang proposes, between “the beginning of the French Revolution and the United States today.” She is not wrong. We face a debt crisis. We are led by a man who seems to wish he were a Bourbon king. We distrust our institutions—including, though Spang omits to mention them, universities, brimming as they are with tenured radicals. There is, however, a key difference. Our average citizen is wealthy beyond the imagining of the typical 18th-century Frenchman. And even our poorest know nothing of the misery of the French peasant. (Witness Monsieur Defarge’s wrathful cry, in A Tale of Two Cities, against the royal minister “who told the famished people that they might eat grass.”)

Our prosperity is built on rights of property and freedoms of enterprise that Spang’s article ignores—or forgets. The pandemic spurs Wall Street Journal columnist Andy Kessler to recall Tom Wolfe’s essay “The Great Relearning,” about hippies who, having decided to “sweep aside all codes and restraints from the past and start from zero,” must relearn “the laws of hygiene by getting the mange, the grunge, the itch, the twitch, the thrush, the scroff, the rot.” The desire for a revolution along socialist and antimodern lines is, Kessler says, “a mental grunge, mental scroff and mental rot,” and he hopes that another great relearning is afoot. If we are to have a revolution, let’s have one in which we recommit to the principles of liberty and moderation, flawed though they may be, rather than one in which we suffer the misery that comes with every pursuit of flawless utopia.

Let’s even dream a little bigger. Another easily made comparison: we are familiar with activists who inject politics into everything, who dramatize slights and demonize opponents, who equate nonconformity with sacrilege, and who wield rights talk as a cudgel. What a fine moment this would be for a new birth of sobriety and tolerance.

The Jacobins established Year One, and their country paid for it. So, in the end, did they. There is indeed a sound lesson to be had from this. Do we understand it? It is always at risk of slipping through our fingers. As he surveyed the carnage and broil of the Terror, Carlyle consoled himself with the notion that, as the ages pass, hatred subsides, wisdom accrues, and the truth prevails. “All lies,” he swore, “have sentence of death written down against them, in Heaven’s Chancery itself; and, slowly or fast, advance incessantly towards their hour.” If only it were so.

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Bringing the Federal Trade Commission to Heel https://lawliberty.org/bringing-the-federal-trade-commission-to-heel/ Tue, 05 Nov 2019 00:00:00 +0000 https://lawliberty.org/bringing-the-federal-trade-commission-to-heel/   We declared in 1776 that governments derive their just powers from the consent of the governed. In 1787 we built a government around that principle. Our founding charter says that the people elect their legislators, and that the legislators make the law. Judges, on the other hand, simply apply that law to resolve the […]

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We declared in 1776 that governments derive their just powers from the consent of the governed. In 1787 we built a government around that principle. Our founding charter says that the people elect their legislators, and that the legislators make the law. Judges, on the other hand, simply apply that law to resolve the cases or controversies that come before them.

“The duty of the court,” Chief Justice Marshall understood, is “to effect the intention of the legislature.” And that intention, he knew, is “to be searched for in the words which the legislature has employed to convey it.” The judiciary obeys the law it gets, in a text, from elsewhere.

It was not always so. “By what rule,” the Chief Justice of the Common Pleas asked in 1615, should he guide himself in the “diverse exposition” of “word and sentence”? “By that liberty and authority,” he answered, “that judges have over laws, especially over statute laws, according to reason and best convenience, to mould them to the truest and best use.” An ancient school of English legal thought held that a judge’s reason could, when adeptly employed, displace the terms of a statute. We decided that, on the contrary, the people’s ends must, when expressed in a constitutional statute, displace the wishes of the judge.

It is in the nature of traditions to outlive their foundations. Many a federal judge has mistaken reason for law, and will for reason. In 1964 a shareholder asked the Supreme Court to permit a lawsuit against a company that had allegedly circulated a deceptive proxy statement. The relevant provision of the securities laws said nothing about letting a private person sue. The court allowed the suit to proceed anyway, because it thought “private enforcement of the proxy rules” a “necessary supplement to action” by the Securities and Exchange Commission. At the time, the court believed itself entitled to add a private right of action to a law whenever doing so struck it as a good idea.

Lately, though, the court has subjected itself to a little more discipline. “When Congress chooses not to provide a private civil remedy,” Justice Powell wrote in a 1979 dissent, “federal courts should not assume the legislative role” by “creating such a remedy” themselves. In the following decades this view gained its footing, and by the turn of the century it had triumphed. Private statutory rights and remedies, the court said in 2001, “must be created by Congress.”

No victory in the law is final, of course, and this one is not even complete. Consider §13(b) of the Federal Trade Commission Act. Although it says only that in proper cases a court may issue an “injunction,” it has commonly been construed to empower a court to award any form of equitable relief. The U.S. Court of Appeals for the Ninth Circuit recently affirmed the FTC’s use of §13(b) to obtain a $1.27 billion restitution award.

“Injunction” does not mean “any equitable remedy.” Congress knows this, as can be seen from the many statutes that mention “equitable remedies,” “equity powers,” or “an injunction, a stay, or other equitable relief.”

The FTC Act’s structure confirms that in using the term “injunction,” Congress said what it meant and meant what it said. Section 13(b) applies only when someone “is violating, or is about to violate,” the Act. It enables the FTC to stop immediate harm by having a court enjoin it.

To get money, however, the FTC must clear additional hurdles. Section 19 gives it two ways to seek “the refund of money” or “the payment of damages.” First, it may prove in court that the defendant violated a pre‑existing FTC rule. Second, it may obtain a cease-and-desist order in an administrative proceeding, then prove in court that “a reasonable man” would know that the pertinent conduct was “dishonest or fraudulent.”

The FTC is tasked with stopping “unfair or deceptive” trade practices. “Unfair” and “deceptive” are sweeping words. One might expect the FTC to put some meat on the bones before making someone forfeit a large sum of money. That’s exactly what §19 makes it do. The FTC must either notify a party of the specific conduct to be avoided, or (after affording extra process) show that his conduct was obviously wicked.

Congress told the FTC to provide defendants certain protections. Providing those protections was a pain, so the FTC sought, quite deliberately, to discard them. It picked up Porter v. Warner Holding Co., a 1946 Supreme Court decision that reads the phrase “permanent or temporary injunction, restraining order, or other order” to encompass any remedy whatsoever. In the 1980s and 1990s, right as the Supreme Court started to resist the urge to invent statutory actions and remedies, the FTC used Porter to convince the lower courts to add remedies to §13(b). Nine circuits came to accept that §13(b) means not what it says, but what the FTC would like it to say.

Last month the Seventh Circuit became the first court to retrench. It had long applied the FTC’s “starkly atextual interpretation” of §13(b); but in the meantime the Supreme Court reminded it to “carry out the intent of Congress.” Heeding this call, the court reattached its reading of §13(b) to §13(b) itself. Concluding that “injunction” means “injunction,” it vacated a $5 million restitution award.

The Supreme Court has been asked to review the conflicting decisions of the Seventh Circuit ($5 million award vacated) and the Ninth Circuit ($1.27 billion award affirmed). If review is granted, which circuit’s decision will stand? As recently as 2017 the court confirmed, in an opinion by Justice Kennedy, that its “approach to recognizing implied damages remedies” has “changed,” and that it now looks “solely” at what Congress wanted. Justice Kennedy has since made way for Justice Kavanaugh, who has asserted that a “judge’s job” is to “read the words of the statute as written.” It would seem that the Seventh Circuit has the inside track.

As it should. “The text of a law,” as the newest justice says, “is the law.”

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Judges Can’t Bring the Americans With Disabilities Act into the Digital Age https://lawliberty.org/judges-cant-bring-the-americans-with-disabilities-act-into-the-digital-age/ Thu, 29 Aug 2019 00:00:00 +0000 https://lawliberty.org/judges-cant-bring-the-americans-with-disabilities-act-into-the-digital-age/ Imagine you own a small business. One day you discover you’ve been sued under the Americans with Disabilities Act. You’re devastated. No decent person is against helping the disabled. You might worry that you’ve failed to uphold truth, justice, and the American way. But then the details emerge. The plaintiff, you learn, has deliberately elected […]

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Imagine you own a small business. One day you discover you’ve been sued under the Americans with Disabilities Act. You’re devastated. No decent person is against helping the disabled. You might worry that you’ve failed to uphold truth, justice, and the American way.

But then the details emerge. The plaintiff, you learn, has deliberately elected not to warn you of your store’s ADA infractions. His lawyer has cut and pasted your business’s name and address into a form complaint. That complaint is quite vague about what you did wrong; the plaintiff just accuses you of “endangering his safety” by failing to remove unspecified “architectural barriers.”

Wanting to know which sink, counter, or doorway should be adjusted, you try to contact the plaintiff’s lawyer. It takes you a long time to get hold of him, and, when you finally do, he knows almost nothing about your case. He has filed more ADA lawsuits than he can track. It turns out that the plaintiff entered your store solely to set up the lawsuit—one of hundreds he has filed—and that the lawyer is interested not in your counters, sinks, or doorways, but in a settlement payment.

You’ve been exposed to the pitiless dark side of the American way—that of the grifters and shysters. You’ve seen firsthand how social trust is corroded by those who wield victimhood as a weapon. And you’ve joined the countless others who, tragically, know the ADA chiefly by its faults.

Our hearts were in the right place. The ADA guarantees the disabled “the full and equal enjoyment” of the goods and services of “any place of public accommodation.” Thanks to the ADA, most buildings must have wide entrances, ramps, elevators, and special parking spaces—and that is all to the good. But the scope and intricacy of the law’s implementing regulations foreclose perfect compliance, and the absence of a notice-and-cure clause means that even the most picayune breach can spark an immediate lawsuit. 

A few bad actors have turned the law’s private right of action into a racket. It is not uncommon for a serial plaintiff to threaten to sue a shop he has never visited for infractions that, if he’s paid to go away (and he usually is), he will never have to identify. The worst abuses defy parody. Take, for instance, the donut stand run by a woman herself confined to a wheelchair that was sued because its handicapped parking signs didn’t say “Minimum fine $250.”

The latest fad among the ADA bar is suing companies over the state of their websites and mobile apps. Around 150 such lawsuits are filed each month. 

There is one small problem: the ADA does not govern the internet. The law was passed in 1990, before the commercial internet even existed. It lists 12 categories of public accommodation, all of them physical spaces. And it says nothing that might bless, let alone guide, its being applied to cyberspace.

Notwithstanding its lack of authority to do so, the Department of Justice Civil Rights Division started trying to craft web accessibility rules for the ADA in 2010. After seven years of fribbling about, it gave up. That’s when the lawsuits began to proliferate, the lawyers in effect asking the judiciary to step forth and write the new law.

Judges are not supposed to draft the laws they want; they are supposed to apply the laws they get. And the laws they get should come not from themselves, nor even from jacks-in-office at the Justice Department, but from the people’s representatives in Congress. Acting on an understandable but still misguided desire to achieve rough justice for the disabled, some courts have nonetheless expanded the ADA to cover websites.

Some courts. Disturbing as it may be to watch the executive branch seize the power to legislate, at least the Department of Justice could be expected (had it ever gotten its act together) to issue just one set of spurious rules. In trying to update the ADA themselves, judges have added the vice of inconsistency to the evil of illegitimacy. Some say that even a website-only business must comply with the ADA. Others say that a website need comply only when a “nexus” exists between it and a brick-and-mortar store. Still others adhere to the ADA as written.

How is a website to comply with the ADA? Problems abound. For example, the ADA tells a store to ensure equal access to its inventory, not what inventory it must stock. Yet at many websites, access is inventory. Judge Posner noted that “it is hardly a feasible judicial function to decide whether shoe stores should sell single shoes to one-legged persons and if so at what price.” But neither is it a “feasible judicial function” to decide how Facebook must modify for a blind person the protean array of photo collages, ad videos, comments, and “like” reactions in her News Feed. 

A court that expands the ADA typically ducks this problem. After declaring a website out of compliance, the judge says that the details of compliance are a matter of remedy—a topic for the end of the case. Then the case promptly settles. How satisfying it must be to grant broad new rights to the disabled, and how convenient to leave the real work of standard-setting for a tomorrow that never comes. 

Businesses surely favor greater web-accessibility. But they need practical guidance about what is expected—something the courts are neither empowered nor equipped to provide.

Domino’s Pizza is one of the many companies caught in the current state of uncertainty. The U.S. Court of Appeals for the Ninth Circuit ruled that its website and mobile app must comply with the ADA. The pizza chain has asked the Supreme Court to review that ruling. The Court should take the case and remind the rest of the third branch of its proper, narrow role in our self-governing republic.

Only Congress may create ADA 2.0.

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The Supreme Court Will Not Save Us https://lawliberty.org/the-supreme-court-will-not-save-us/ Tue, 26 Feb 2019 00:00:00 +0000 https://lawliberty.org/the-supreme-court-will-not-save-us/   In the Declaration of Independence, the Founding Fathers complained that George III had “erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Wary as they were of such meddlers, needlers, and bullies, the Founders would shudder at the sight of the modern administrative […]

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In the Declaration of Independence, the Founding Fathers complained that George III had “erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Wary as they were of such meddlers, needlers, and bullies, the Founders would shudder at the sight of the modern administrative state. No one is sure how many federal agencies exist. The Code of Federal Regulations contains some 180,000 pages, and many mandates come in the form of binding agency “guidance” papers not published in the code.

Although the Constitution vests “all legislative Powers” in Congress, our lawmakers have handed much of that authority to the executive branch. Congress instructs an agency to act “equitably”; then the agency creates the rules that govern the citizenry’s behavior—that is, the law. Scarcely anyone even pretends to respect Locke’s contention that the people empower their representatives “only to make laws, and not to make legislators.”

Some friends of liberty hope to see the judiciary bring the civil servants to heel. They hope above all that judges will begin blocking the legislature’s efforts to surrender power to the executive. Although the Supreme Court last barred such a delegation in 1935, this year it might declare, in Gundy v. United States, that Congress granted the Justice Department too much discretion in implementing a sex-offender registration law.

Whatever the result in Gundy, however, the Court will never void many delegations. And it will not turn the scale against the administrative state. The bureaucracy is too vast, too strong, too obdurate.

The belief has taken root in every elevated mind that the judiciary is the republic’s great protector. It was not supposed to be so. Those of the Founders who endorsed the power of judicial review agreed with Justice Iredell that it is a “delicate and awful” instrument reserved for “a clear and urgent case.” The judiciary was to block only the most obvious constitutional violations. It was to thwart another branch’s effort to overthrow the Constitution altogether.

But our federal judges, wrote Brutus, Anti-Federalist of New York, “are independent of the people, of the legislature, and of every power under heaven.” “Men placed in this situation,” he observed, “will generally soon feel themselves independent of heaven itself.”

The Court’s role has advanced far beyond what even Chief Justice Marshall could have imagined. It is not just that some of the justices read the prejudices of their class into the Constitution (though they do); it is that the Court declares laws and acts unconstitutional, often by a vote of five to four, as a matter of routine judicial business.

The Court should do less, not more. It should release power to the other branches, not (except in a “clear and urgent case”) moderate the flow of power between them. None of the three branches, Madison wrote, may “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” These are words to live by.

Madison and Jefferson expected the three branches to share the task of interpreting the Constitution. Government officials still swear, in accord with Article VI, clause 3, to bear the Constitution true faith and allegiance. The question arises therefore why Congress so readily forfeits power in defiance of Article I.

The answer is an involved tale, one that touches on the rise of party spirit, the advent of the New Deal, and the triumph of the interest group. But most of the Founders, upon hearing the story, would draw a simple conclusion. These men were students of history; and history’s first lesson, they believed, is that a nation cannot endure without virtue. A republic’s leaders must place what is right above what is easy, what is proper above what is pleasing.

The opposite of virtue, the Founders thought, is corruption. Corruption is stoking a sense of grievance, entitlement, or dependency in others. It is striking heroic poses instead of maintaining the roads. It is letting the state spend money it does not have. And it is distorting the fundamental law to achieve a political end. “So long as we are a young and virtuous people,” said Hamilton, the Constitution “will bind us together in mutual interests, mutual welfare, and mutual happiness.” “But when we become old and corrupt,” he warned, “it will bind us no longer.”

Our Founders were sons of the Enlightenment; they trusted in reason and in nature’s God. It is hard not to wonder whether, given a glimpse of our day, some of them would lament the effect of untrammeled doubt. “Of all the dispositions and habits which lead to political prosperity,” Washington wrote in his Farewell Address, “religion and morality are the indispensable supports.” The value not only of religion, but of rules, of duty, of virtue, must stand to some unknown degree upon faith. Ours, meanwhile, is an ever more faithless society.

Did the men who launched our nation always embody their ideals? Did they invariably confirm the worth of the “sacred Honor” they invoked at the close of the Declaration? Obviously not. They owned slaves. They dueled. And, of course, they were no strangers to vicious and underhanded political tumult. For those who treat modern sensibilities as hegemonic, the Founders’ flaws are blinding. Even those who most admire the founding generation must, when confronted with its inconsistencies, admit the difficulty of saying anything conclusive about how ideas affect conditions in any era.

We, however, are determined to learn whether restrained, responsible, disciplined—in a word, constitutional—government can long survive the death of civic piety.

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