Late last night, a federal district court in Maryland issued a ruling blocking implementation of much of President Trump’s third travel ban order because it discriminates against Muslims, in violation of the Establishment Clause of the First Amendment. Like previous iterations of the travel ban order, Travel Ban 3.0 bars all or most entry into the United States by citizens of several Muslim-majority nations, with the important difference that the latest ban is permanent rather than a temporary measure lasting for 90 days.
The Maryland court relies on President Trump’s and his subordinates’ and advisers’ numerous statements equating the “territorial” ban adopted in all three iterations of the travel ban order with the “Muslim ban” Trump repeatedly advocated during the 2016 campaign. It concludes that Travel Ban 3.0 is largely a continuation and extension of the previous orders, and has the same underlying unconstitutional purpose of discriminating against Muslims. Judge Theodores Chuang’s opinion further notes that the President’s most recent statements about the travel ban issue “cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and…. convey the message that the third iteration of the ban—no longer temporary—will be the ‘enhanced expression’ of the earlier ones.” Judge Chuang previously wrote an opinion blocking Travel Ban 2.0.
Last night’s ruling also discusses the extremely weak and incoherent nature of the security rationale for Travel Ban 3.0. While Judge Chuang emphasizes that this does not by itself prove that the new travel ban is unconstitutional, it does undercut the government’s efforts to prove that security considerations, not targeting Muslims, were the true purpose of the order. In cases where plaintiffs submit evidence indicating that a seemingly neutral government policy is actually motivated by an effort to engage in unconstitutional discrimination, the burden of proof shifts to the government, which must show that it would have adopted the same policy anyway, for a legitimate reason. Like its predecessors, Travel Ban 3.0 does not even come close to meeting that standard.
The ruling also concludes that the inclusion of North Korea and some Venezuelan government officials does not mitigate the anti-Muslim focus of the order, because it “has little practical significance,” due to the fact that it bars almost no entrants who could otherwise have gotten in. The Venezuela provision only applies to a small number of government officials and their families, while only about 100 North Korean citizens entered the United States in 2016, many of them officials on diplomatic visas not covered by the ban.
Like yesterday’s ruling against the travel ban by a federal district court in Hawaii, Judge Chuang also ruled that Travel Ban 3.0 violated the 1965 Immigration and Nationality Act, which forbids discrimination in the issuance of immigration visas on the basis of nationality. His opinion includes some strong rebuttals to various defenses of the legality of the order under the INA. For example, he criticizes the distinction the administration seeks to make between visas and the right to enter, by noting that “receiving an immigrant visa is meaningless without later receiving permission to enter” and that “the denial of entry to immigrants would generally have the effect of causing the denial of immigrant visas” as well.
On the other hand, Judge Chuang rejects two other statutory arguments advanced by the plaintiffs, which were endorsed by Judge Derrick Watson in the Hawaii ruling: that the president failed to make statutorily required findings, and that he imposed visa waiver requirements beyond those permitted by Congress.
Like the Hawaii decision, the Maryland ruling is limited to citizens of the six Muslim-majority nations covered by Travel Ban 3.0, and excludes North Korea and Venezuela. For reasons already noted, this distinction has little practical significance.
Both rulings also impose nationwide restrictions on implementation of the new travel ban order (a temporary restraining order in the Hawaii case; a temporary injunction in Maryland). Technically, both are just preliminary decisions temporarily blocking implementation of the travel ban until the court can reach a final decision on the merits. But both make clear that the plaintiffs are highly likely to prevail in any such final ruling.
One key difference between the two decisions is that the Maryland ruling only applies its injunction to persons with a “bona fide” connection to persons or entities in the United States. In this respect, it follows the Supreme Court’s June 26 decision limiting the lower court injunctions against Travel Ban 2.0 to persons with such a connection. Like the Supreme Court injunction, the limitations on the Maryland one are based on a “balance of equities.” For reasons I explained here, we should not assume that this limitation means that either the Supreme Court majority or Judge Chuang necessarily believe that Travel Ban 3.0 is legal as applied to persons who lack such a connection. “Likelihood of success on the merits” of the underlying claim is just one of several factors that plaintiffs are required to meet in order to qualify for a preliminary injunction. It could be that the Supreme Court majority believed that foreigners lacking a “bona fide” connection fail one or more of the other criteria.
Overall, Judge Chuang’s opinion closely echoes the earlier Fourth Circuit appellate ruling against Travel Ban 2.0, which was also based on the religious discrimination issue. The latter decision was recently vacated by the Supreme Court, when it declared the case moot due to the expiration of the 90 day duration of the second travel ban order.
The discrimination claim against Travel Ban 3.0 raises a number of issues that came up in the legal challenges to its predecessor. In this post, I addressed the argument that Trump’s travel ban order must be valid because a similar might be valid if issued by another president with different motivations. In other earlier posts, I explained why it is appropriate for courts to use Trump’s campaign statements as evidence of unconstitutional motive, why it does not matter that the travel ban doesn’t cover all of the world’s Muslims, and why First Amendment restrictions on religious discrimination apply to immigration policy no less than other exercises of federal power.
Both the Hawaii ruling and the Maryland decision reinforce my view that Travel Ban 3.0 is vulnerable to most of the same legal challenges as its predecessors. At the very least, they make clear that the legal battle over Trump’s travel bans is far from over. At the same time, it is important to remember that this is just the beginning of what will likely be prolonged litigation over Travel Ban 3.0. Both rulings against it are likely to be appealed, and the issue might well return to the Supreme Court. It is hard to make any definitive predictions about what the outcome will be when and if that happens.
Time (Nash Jenkins) reports:
In an interview with TIME magazine, the Alabama Republican argued that NFL players and others who have protested police violence are violating a section of the U.S. code which outlines how people should conduct themselves when the anthem is played. …
“It’s against the law, you know that?” he said. “It was a act of Congress that every man stand and put their hand over their heart. That’s the law.” …
“I back the President in upholding respect for the patriotism for our country, on two grounds,” he said. “One, it’s respect for the law. If we don’t respect the law, what kind of country are we going to have? Two, it’s respect for those who have fallen and given the ultimate sacrifice. I’m surprised that no one brought this up.”
He added that it’s a matter of the “the rule of law.”
“If they didn’t have it in there, it would just be tradition. But this is law,” he said. “If we disobey this, what else are we going to disobey?[“]
Here’s my thinking:
1. The federal statute appears to be 36 U.S.C. § 301, which provides,
During a rendition of the national anthem —
(1) when the flag is displayed — …
(C) all [people present who are not in uniform, not armed forces and not veterans] should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart …
The statute says “should,” and that is often the mark of a law that is merely hortatory — setting forth a recommended practice — rather than legally binding (which is what the words “must” and “shall” would usually signal), especially because the provision doesn’t say anything about a violation being criminal. Thus, for instance, the court in Sadlier v. Payne (D. Utah 1997) held that the federal Flag Code (36 U.S.C. § 176) is not binding:
[Some] suggest that displaying an American flag with a yellow fringe is a violation of 36 U.S.C. § 176(g), which provides that “[t]he flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter[,] word, figure, design, picture, or drawing of any nature.” Apparently, the fringe is considered to be a “design” that is attached to the flag. This part of Title 36, commonly known as the “flag code,” is not, however, intended to proscribe conduct. See Holmes v. Wallace, 407 F.Supp. 493, 496 (M.D.Ala.), aff’d, 540 F.2d 1083 (5th Cir.1976) (Mem.). The repeated use of the word “should” throughout § 176 indicates a lack of penal purpose and its advisory nature. Id. In addition, § 176 does not proscribe any remedy for its violation.
Likewise, more generally, there are statements such as this (though I acknowledge that some courts have held otherwise, though not as to flag or anthem etiquette): “The term ‘should’ indicates a recommended course of action, but does not itself imply the obligation associated with ‘shall.’ ” Qwest Corp. v. FCC (10th Cir. 2001); see also Barnhart v. Peabody Coal Co., 537 U.S. 149, 185 (2003) (Thomas, J., dissenting) (noting that the word “should” signifies that Congress is speaking in a hortatory way, not a mandatory way).
2. In any event, even if the statute were seen as binding, it would violate the First Amendment: The court in West Va. Bd. of Ed. v. Barnette (1943) held that even public school students couldn’t be punished for refusing to engage in a flag salute. The logic of that case equally applies to punishing people for refusing to stand for a flag salute, see Lipp v. Morris (3d Cir. 1978) (en banc), and likewise as to the national anthem. That too is “law”; indeed, under Articles V and VI of the Constitution, the First Amendment is part of “the supreme law of the land.”
3. People are generally required to stand when a judge enters the courtroom; but if that is constitutional (a matter that isn’t entirely certain, especially as to parties who have to be before the court), that is only because First Amendment rights in general are sharply reduced in a courtroom, government property used by the government for government functions. You can be held in contempt for saying things out of turn in court. You can be held in contempt for not saying things, in the form of remaining silent when ordered to testify (and when you have no privilege excusing you from testifying). It’s not surprising that you might be held in contempt for not engaging in certain symbolic expression, such as rising for the judge. But none of this would apply to people refusing to stand for the national anthem at an NFL stadium.
In 1774, John Dickinson was elected to the First Continental Congress. As he had in the Stamp Act Congress, he served as principal drafter of public statements. The following year he was returned to the Second Continental Congress, where he again served as principal drafter. He was the primary author of, among other papers, two petitions to the crown and “The Declaration of Causes and Necessity for Taking up Arms.” Moreover, he chaired the congressional committee that drafted the Articles of Confederation: Our oldest draft of the articles is in his handwriting.
Throughout this period he tried to steer a middle course between submission and rebellion. He was a firm believer in moderation, which he once called “a virtue, and the parent of virtues.” Another member of Congress, Thomas Jefferson, wanted to proceed more vigorously. In his “Autobiography,” Jefferson relates a story pertaining to the “Declaration of Causes and Necessity for Taking Up Arms” and the second petition to the crown, the “Olive Branch Petition.” The anecdote reveals how most of Dickinson’s colleagues perceived him:
I prepared a draught of the Declaration committed to us. It was too strong for Mr. Dickinson. He still retained the hope of reconciliation with the mother country, and was unwilling it should be lessened by offensive statements.
He was so honest a man, & so able a one that he was greatly indulged even by those who could not feel his scruples. We therefore requested him to take the paper, and put it into a form he could approve. He did so, preparing an entire new statement, and preserving of the former only the last 4 paragraphs & half of the preceding one.
We approved & reported it to Congress, who accepted it. Congress gave a signal proof of their indulgence to Mr. Dickinson, and of their great desire not to go too fast for any respectable part of our body, in permitting him to draw their second petition to the King according to his own ideas, and passing it with scarcely any amendment. The disgust against [i.e., distaste for] this humility was general; and Mr. Dickinson’s delight at its passage was the only circumstance which reconciled them to it.
This respect for Dickinson was not universal. John Adams, one of Congress’s leading hotheads, described him as “delicate, and timid” and representative of people of “great Fortune and piddling Genius.”
By the summer of 1776, Dickinson realized independence was inevitable. He was certain, however, that publicly declaring it was premature. His July 1 speech in opposition to the Declaration, of which we have notes but not the text, shared with his 1764 Pennsylvania assembly oration a careful balancing of risks, probabilities, and benefits. Like his other productions, the July 1 speech was punctuated with sound bites. Thus, of his countrymen, he avowed, “I had rather they should hate me than that I should hurt them,” and he characterized advocates of an immediate declaration as wanting to “brave the storm in a skiff made of paper.”
A modern American may find it difficult to sympathize with Dickinson’s arguments against independence. But a historian finds it difficult to disagree with all of them. Several of Dickinson’s predictions proved entirely accurate. One was that only American military successes, not the Declaration, would bring France into the war. Unfortunately, Dickinson’s prediction that his stance would destroy his popularity also proved accurate.
Dickinson’s speech against independence, like his opposition to the 1764 Galloway-Franklin charter plan, illustrates the man’s enormous moral courage. There is no record — and I am not the first to make this observation — that John Dickinson ever backed down in the face of popular opposition when an issue was important.
When it became apparent that a majority of states in Congress would approve the Declaration, Dickinson remained a team player. He and Robert Morris withdrew so the vote could be unanimous. Unlike most in Congress, moreover, Dickinson served two stints in the Revolutionary armed forces.
Another insight into his character is offered by his 1781 decision to free his slaves. Most of the Founders opposed slavery. But Dickinson was one of the few to free his own slaves during his lifetime.
Dickinson’s loss of popularity kept him from political office for about three years. His political comeback began in 1779, when Delaware returned him to Congress. Two years later he was elected president of that state, and in 1783 president of Pennsylvania. He was reelected to two additional annual terms, thereby serving the constitutionally-permitted maximum.
In 1786, he represented Delaware in the Annapolis Convention, and was elected president of that body. The Annapolis Convention, of course, was the assembly that recommended to the states a wider federal convention in Philadelphia the following May. Virginia (not Congress, as commonly claimed) responded by formally calling the Philadelphia conclave.
Delaware sent Dickinson to Philadelphia as the head of a five-man delegation. In that capacity he impacted the results significantly.
Tomorrow: John Dickinson’s contributions to the Constitution.
Here’s an interesting new case from Massachusetts, Ajemian v. Yahoo!, Inc. The question: Who can access your e-mails after you die?
The case arose after John Ajemian died from a cycling accident. He didn’t have a will, and his siblings were appointed personal representatives of his estate. Ajemian’s siblings knew that their brother had kept a personal Yahoo e-mail account for several years. They wanted to access the account’s contents. Yahoo refused to disclose them, however, citing the ban on disclosure imposed by the federal law known as the Stored Communications Act. The act basically says that email providers can’t disclose private emails unless a specific exception applies. According to Yahoo, no exception applied. Ajemian was dead, and he wasn’t alive to consent to the disclosure of his emails. As a result, Yahoo argued, they couldn’t disclose the emails.
The Massachusetts Supreme Judicial Court, the state’s highest court, disagreed. According to the court, the key was that there is a state probate and common law rule that personal representatives can exercise control over a decedent’s property:
Personal representatives provide consent lawfully on a decedent’s behalf in a variety of circumstances under both Federal and common law. For example, a personal representative may provide consent to the disclosure of a decedent’s health information pursuant to the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d et seq. (HIPAA). See 45 C.F.R. § 164.502. In like manner, a personal representative may provide consent on a decedent’s behalf to a government search of a decedent’s property. See United States v. Hunyady, 409 F.3d 297, 304 (6th Cir.), cert. denied, 546 U.S. 1067 (2005).
At common law, a personal representative also may provide consent on a decedent’s behalf to the waiver of a number of rights, including the attorney-client, physician-patient, and psychotherapist-patient privilege.Under the Uniform Probate Code, a personal representative may sell a decedent’s property, Uniform Probate Code § 3-715(23); bring claims on the decedent’s behalf, id. at § 3-715(22); and vote the decedent’s stocks, id. at § 3-715(12). Thus, a construction of lawful consent that allows personal representatives to accede to the release of a decedent’s stored communications accords with the broad authority of a lawfully appointed personal representative to act on behalf of a decedent.
In light of that rule, the next question was whether there was any signal in the statute that rejected this traditional understanding. According to the court, there was not: “Nothing in the language of the ‘lawful consent’ exception evinces a clear congressional intent to preempt State probate and common law allowing personal representatives to provide consent on behalf of a decedent.” From the opinion:
Congress . . . intended lawful consent to encompass certain forms of implicit consent, such as those that arise from a course of dealing. At the very least, this suggests that Congress did not intend to place stringent limitations on lawful consent even for living users. In sum, we discern nothing in the legislative history of the SCA to indicate a clear intent by Congress to limit lawful consent to “actual consent,” such that it could thereby intrude upon State probate and common law.
Absent such clear congressional intent, “we … have a duty to accept the reading [of the statute] that disfavors preemption.” See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005). Because we must presume, then, that Congress did not intend the SCA to preempt such State laws, we conclude that the personal representatives may provide lawful consent on the decedent’s behalf to the release of the contents of the Yahoo e-mail account.
As a result, Yahoo could disclose the communications to the siblings under the consent exception to non-disclosure. (The court doesn’t get into whether Yahoo had to disclose the communications in the circumstances; it only ruled that the Stored Communications Act didn’t bar the disclosure.)
I don’t know if I agree with the new decision. Here are three tentative thoughts on the opinion.
1) I’m not sure this is really an issue of preemption. The consent exception states that disclosure is permitted “with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service.” I would think the issue should just be one of statutory interpretation: Does the personal representative of the estate count as the “originator,” “addressee,” “intended recipient,” or “subscriber” of the decedent’s e-mail account? Maybe so or maybe not. But I’m not sure it’s a question of preemption.
2) What happens if an account holder makes clear, either in his will or in a communication to his email provider, that he does not want his personal representative to have access to his emails after his death? I would think the law would want to honor that wish, but I’m not totally sure if it does under the court’s interpretation.
3) This is another issue that the drafters of the Stored Communications Act just didn’t think about. I remember first wondering about this question around 1999, when I was working on a case involving the access to emails of two criminal suspects who had died. It wasn’t clear how the statute was supposed to work. Did the statutory rights extinguish? Did anyone retain the access and control rights of the person who had died?
In today’s world, in which we leave behind a lot of emails and other contents in the cloud after we’re gone, the answers matter.
Earlier today, the US District Court for the District of Hawaii issued a ruling granting a temporary restraining order blocking enforcement of the most recent version of President Donald Trump’s travel ban order, often referred to as “Travel Ban 3.0.” The new travel ban supersedes its predecessor (often called “Travel Ban 2.0”), which was the subject of legal challenges that the Supreme Court was going to hear until it decided that they were moot because of the expiration of that order, which included a 90 day travel ban excluding nearly all citizens of six Muslim-majority nations from entering the United States. The Court recently dismissed one of the two travel ban cases before it, and is likely to soon do the same with the other one.
In today’s ruling, Judge Derrick Watson (the same judge who issued an earlier ruling against Travel Ban 2.0) concluded that the new travel ban exceeds the authority granted to the president by Congress, for much the same reasons as its predecessor did. Here is his summary of his conclusions:
Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.
On June 12, 2017, the Ninth Circuit affirmed this Court’s injunction of Sections 2 and 6 of Executive Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017), entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-2”). Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). The Ninth Circuit did so because “the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress” in 8 U.S.C. § 1182(f). Hawaii, 859 F.3d at 755. It further did so because EO-2 “runs afoul of other provisions of the [Immigration and Nationality Act (‘INA’)] specifically 8 U.S.C. § 1152,] that prohibit nationality-based discrimination.” Hawaii, 859 F.3d at 756.
Enter EO-3. Ignoring the guidance afforded by the Ninth Circuit that at least this Court is obligated to follow, EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f). Hawaii, 859 F.3d at 774. And EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation. Hawaii, 859 F.3d at 776–79.
Accordingly, based on the record before it, the Court concludes that Plaintiffs have met their burden of establishing
strong likelihood of success on the merits of their statutory claims, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief.
Travel Ban 3.0, like its predecessor, forbids nearly all entry into the United States by citizens of six Muslim-majority nations (though substituting Chad for Sudan). The new order also bans entry by citizens of North Korea, and by certain Venezuelan government officials. Today’s ruling does not block this latter part of the order, because the plaintiffs (led by the State of Hawaii, which also spearheaded one of the main lawsuits against Travel Ban 2.0) did not ask for it. However, the restrictions on North Koreans and Venezuelan officials have virtually no practical significance because they would not have the effect of blocking more than a tiny number of people who could otherwise have gotten in.
Judge Watson’s ruling follows nearly the same reasoning as the earlier Ninth Circuit decision against Travel Ban 2.0 (which is still on the books, in part because the Supreme Court has not yet dismissed that case, as it has done with the companion Fourth Circuit decision against Travel Ban 2.0). But it seems clear that Judge Watson would have reached much the same conclusion even if the Ninth Circuit ruling was no longer binding precedent. As immigration law scholar Peter Margulies (who believes that Travel Ban 2.0 was legal) explains, the new order is actually more vulnerable to these statutory objections than the old one, because of its more sweeping nature.
Technically, today’s decision is just a preliminary ruling granting a restraining order against enforcement of the travel ban, until the court considers the case further and reaches a final decision on its legality. But it is clear that Judge Watson would almost certainly rule the same way in any final decision. Indeed, one of the criteria for granting the temporary restraining order is whether the plaintiffs are likely to prevail on the merits.
The Hawaii ruling focuses solely on the statutory argument against Travel Ban 3.0, which asserts that the president lacked congressional authorization for his actions. It does not address claims that the new travel ban order is unconstitutional because it is motivated by the president’s desire to discriminate against Muslims, as indicated by his numerous statements to that effect. But Travel Ban 3.0 is vulnerable on this front, as well. This issue, too, is likely to come up as the litigation over the new travel ban continues.
The inclusion of North Korea and Venezuela in the new order is pretty obviously a smokescreen for what remains an effort to target Muslims, with no genuine national security justification. As David Bier of the Cato Institute explains in an excellent post, the administration’s information-sharing rationale for the selection of countries covered by the new order makes no sense, and is internally contradictory.
Today’s ruling is just the first step in what could well be a prolonged legal battle over Travel Ban 3.0. The administration will surely appeal, probably all the way up to the Supreme Court if (as seems likely) the Ninth Circuit affirms Judge Watson’s decision. It would be foolish to make any firm predictions about the ultimate outcome. But, so far at least, I see no reason to change my view that the new order is open to most of the same legal objections as its predecessor, and that the legal struggle over Trump’s travel bans is far from over.
Last week, President Trump tweeted:
Federal Communications Commission Chairman Ajit Pai disagrees. See Brian Fung’s The Switch post here at The Washington Post:
The Federal Communications Commission doesn’t have the power to revoke any NBC station’s broadcast license over the content it produces, FCC Chairman Ajit Pai said Tuesday, putting a damper on recent suggestions by President Trump that NBC should be penalized for its critical coverage of the White House.
Pai’s remarks, delivered at a Washington conference, aimed to settle a flare-up over media law stemming from an NBC report that depicted a president at odds with his most senior military advisers when he indicated that he wanted what amounted to a tenfold increase in the U.S. nuclear arsenal. Trump called the report “pure fiction.”
“I believe in the First Amendment,” Pai said at an event organized by George Mason University’s Mercatus Center. “The FCC, under my leadership, will stand for the First Amendment. Under the law, the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast.”
Whether the FCC can refuse to renew a license based on a particular station’s alleged pattern of falsehoods is a more complicated matter, especially since existing First Amendment precedents allow more restrictions on broadcast TV and radio than for other media (see, e.g., Red Lion Broadcasting Co. v. FCC (1969), which upheld the old Fairness Doctrine). But I think Pai is sending the message — an entirely correct message, in my view — that the FCC shouldn’t be in the business of stripping licenses based on a president’s complaints about a broadcaster. And I think that today’s Supreme Court would be prepared to overrule Red Lion and similar cases, and offer broadcasters full First Amendment protection, as recent opinions by both Justice Ruth Bader Ginsburg and Justice Clarence Thomas suggest.
In celebration of Geoff Pullum's 700th LLOG post, "World domination and threats to the public", we'll be meeting for a quiet (virtual) drink this evening. But meanwhile I'll quietly suggest that Geoff has been too hasty in joining Randall Munroe at xkcd in assigning to the field of Linguistics a "low likelihood of being a crucial tool for a supervillain, and low probability of anything breaking out of the research environment and threatening the general population".
In fact LLOG posts have described at least two fictional counter-examples over the years, and I expect that commenters will be able to suggest some others.
There's "La septième fonction du langage" (8/24/2017), describing Laurent Binet's novel of the same name, which imagines that Roman Jakobson extended his six functions of language with a secret seventh function, designated as the “magic or incantatory function,” whose mechanism is described as “the conversion of a third person, absent or inanimate, to whom a conative message is addressed". Instructions for using this seventh function were powerful enough to ensure the election of François Mitterand, and motivated an international police operation to prevent them from falling into more dangerous hands.
The book explores the controversial concept of neuro-linguistic programming and presents the Sumerian language as the firmware programming language for the brainstem, which is supposedly functioning as the BIOS for the human brain. According to characters in the book, the goddess Asherah is the personification of a linguistic virus, similar to a computer virus. The god Enki created a counter-program which he called a nam-shub that caused all of humanity to speak different languages as a protection against Asherah, supposedly giving rise to the biblical story of the Tower of Babel. […]
As Stephenson describes it, one goddess/semi-historical figure, Asherah, took it upon herself to create a dangerous biolinguistic virus and infect all peoples with it; this virus was stopped by Enki, who used his skills as a "neurolinguistic hacker" to create an inoculating "nam-shub" that would protect humanity by destroying its ability to use and respond to the Sumerian tongue. This forced the creation of "acquired languages" and gave rise to the Biblical story of the Tower of Babel. Unfortunately, Asherah's meta-virus did not disappear entirely, as the "Cult of Asherah" continued to spread it by means of cult prostitutes and infected women breast feeding orphaned infants …
Since these examples belong more to the realm of fantasy than hard science fiction, I have to admit that Geoff is probably right about our field being "a safe thing to work on" — at least if you have a positive opinion of the various modern commercial and governmental applications of computational linguistics.
Linguistics is in the most desirable quadrant according to today's xkcd: low likelihood of being a crucial tool for a supervillain, and low probability of anything breaking out of the research environment and threatening the general population.
But I'm not at all sure that everything is positioned correctly. Molasses storage should be further to the right (never forget the Great Boston Molasses Flood of 1919); dentistry should be moved up (remember Marathon Man); robotics in its current state is too highly ranked on both axes; and entomology, right now (October 18, 2017), in addition to being slightly too low, is spelled wrong. Lots to quibble about, I'd say. But not the standing of linguistics as a safe thing to work on.
Randall Munroe did not pick molasses as a random threat, of course; his mouseover alt text reads: "The 1919 Great Boston Molasses Flood remained the deadliest confectionery containment accident until the Canadian Space Agency's 2031 orbital maple syrup delivery disaster."
And I think the misspelling of entomology must be another case of him toying with us; he knows people confuse etymology with the study of insects: see https://xkcd.com/1012/. I think he's just messing with our heads. As usual.
Thanks to Joan Maling and Meredith Warshaw.
Most speech is protected against criminal punishment, or civil liability; but some such otherwise protected speech can still lead to administrative discipline from public K-12 schools:
- Speech may lead to discipline because it seriously risks material disruption of school work (that’s the Tinker exception).
- It may lead to discipline if it uses vulgarities or sexual innuendo (that’s Fraser).
- And it may be restricted because it seems to advocate illegal drug use (that’s Morse) without any visible political message (that’s Morse).
You can read more about these exceptions in this 2016 post, but for now let’s focus on two questions: (A) Does the school have less power to discipline students for off-campus speech (so that these three exceptions basically don’t apply to off-campus speech)? (B) Does the school have more power to eject students from optional programs (sports teams, cheerleading, student government and the like) even for speech that can’t lead to suspension or expulsion from school?
The answer to (A) turns out to be complicated and unsettled. Generally speaking, courts are split on whether off-campus speech can lead to discipline if it seriously risks leading to disruption on-campus (the Tinker exception), though the tendency seems to be to allow such discipline (and thus not fully protect off-campus speech). But the Supreme Court has said that the Fraser and Morse exceptions don’t apply to off-campus speech (unless the speech is at an off-campus school activity), so students can’t be punished in school for out-of-school vulgarity.
The answer to (B) is even less clear; but a district court decision this month, B.L. v. Mahanoy Area School Dist. (M.D. Pa.), concludes that cheerleaders can’t be ejected from the squad for off-campus vulgarities. Here are the facts:
On May 28, 2017, [B.L.] posted a “Snap” featuring a photo of her and a friend holding up their middle fingers with the text, “f––– school f––– softball f––– cheer f––– everything” superimposed on the image. Plaintiff took the Snap at the Cocoa Hut — a local convenience store — on the weekend when she was not participating in any school activity. Notably, this Snap did not specifically mention the High School or picture the High School. Further, the Snap was only shared with Plaintiff’s friends on SnapChat, and thus was not available to the general public.
B.L. was then “dismissed from the cheerleading squad,” on the grounds that “the Snap was ‘disrespectful’ to the coaches, the school, and the other cheerleaders.”
Not allowed, says the court. First, as to issue (A),
While courts have allowed schools to punish a student for out-of-school speech that was reasonably expected to substantially disrupt the school, the Supreme Court has noted that schools have no power to punish “lewd or profane” speech — as described in Fraser — when it occurs outside of the school context…. [T]he ability of a school to punish lewd or profane speech disappears once a student exits school grounds…. [And, under Third Circuit precedent, controlling in this Pennsylvania case,] “a school could not punish a student for online speech merely because the speech was vulgar and reached the school.”
And as to issue (B),
[The School District] seeks to have this Court hold that a student may be punished for out-of-school speech so long as the punishment does not encroach on what the District refers to as a “protected property interest.” In other words, the District can levy any punishment it chooses so long as they do not suspend or expel a student. As the District’s counsel made clear at the hearing, such holding would mean that a student could be barred from an extracurricular activity if they were at home with friends and uttered a profanity that was subsequently reported to the school. In essence, counsel suggests interpreting this Circuit’s jurisprudence to allow school children to serve as Thought Police — reporting every profanity uttered — for the District. Such construction is “unseemly and dangerous.”
UPDATE: I originally used “off-campus speech” simply as shorthand for speech that is neither on-campus nor on the premises of any school activity (some of which may be off the school’s property as such, as in Morse); I’ve added a parenthetical to make that explicit.
The Farmer letters are best understood when read in conjunction with Dickinson’s 1764 speech and his 1774 “Essay on the Constitutional Power of Great-Britain Over the Colonies in America.” The latter tract elaborated The Farmer’s comments about government. This discussion, although drawing principally on The Farmer, will mention all three works.
In political philosophy, Dickinson was essentially a Lockean. Government was founded on contract. It was a public trust erected to further human happiness. Necessary to human happiness was satisfaction of man’s social instinct. Any particular government was constitutional and legitimate only so far as its actions furthered human happiness. In his 1764 speech, Dickinson argued that the “liberties” (e.g., privileges) created by English law are “[f]ounded on the acknowledged rights of human nature.” In other words, the “rights of Englishmen” were positive law manifestations of natural rights.
According to Dickinson, immigrants to the colonies had effectively contracted to recognize the executive authority of the Crown and its authority over foreign affairs. Furthermore, by accepting Britain as the mother country and the moderator of the empire, colonists had implicitly agreed that Parliament could regulate trade with foreign nations and among units of the empire.
But Americans had never ceded their right to be taxed only by their consent, given individually or by their representatives: “We cannot be happy without being free,” Dickinson wrote in Farmer Letter XII. “We cannot be free without being secure in our own property … We cannot be secure in our property, if, without our consent, others may take it away.”
Parliament, where Americans were unrepresented, had imposed the Townshend duties to raise revenue rather than to restrict or regulate trade. As such, they were taxes: “A ‘TAX’ means an imposition to raise money,” Letter IV proclaimed. The Quartering Act, by which Parliament ordered colonial governments to provide lodging and other reports to British troops, also was substantially a tax.
Although the “Farmer” necessarily focused on taxes, he addressed other political questions as well. One was how a free people should respond to governmental usurpation. Citizens should oppose small usurpations immediately to prevent them from acquiring the force of precedent. Letter XII proclaimed, “A perpetual jealousy regarding liberty is absolutely required in all free states … Slavery is ever preceded by sleep.”
However, opposition should proceed cautiously. Letter III contended that citizens must first petition for redress of grievances. Only if petitioning was unsuccessful should citizens proceed to peaceful civil disobedience. Only if both those steps failed should they employ force.
Dickinson did not believe taxation was the only subject within the exclusive sphere of colonial control. Dickinson cited the court system as another example. Letter XII asserted, “The freedom of a people consists in being governed by laws, in which no alteration can be made, without their consent.” Obviously, this proclamation is not limited to taxes.
In his 1774 essay, Dickinson illustrated by example what he meant by “internal governance.” It included regulation of civil justice, criminal law, manufacturing, religion, the press and many other activities. His list looks very much like the lists the Constitution’s advocates offered during the ratification debates when they itemized the powers the Constitution reserved exclusively to the states.
Like Dickinson’s later writings, The Farmer revealed an interest in the incentives motivating political officeholders. Letter VII observed that measures not affecting parliamentary constituents directly received less attention in the House of Commons than those of importance to constituents. Parliamentary taxation of the colonies in particular created bad incentives. Letter VIII cited as a principle of good government the maxim Qui sentit commodum, sentire debet et onus: Who gets the benefit should bear the burden.
The “Farmer” supported his case heavily, both in the text and in footnotes. There were citations to the Bible, to political tracts, to leading classical authors and to works of ancient and modern history. For example, to illustrate how the true incidence of a tax might fall on a person other than the nominal payer, Letter VII related an episode from the reign of the emperor Nero, drawn from the writings of the Roman historian Tacitus.
Incidentally, constitutional originalists may appreciate Dickinson’s preference for relying on older records as legal authority rather than on recent trends or events. His 1774 essay asserted that it is best to resort to “those ‘dead but most faithful counsellors’ (as Sir Edward Coke calls them) ‘who cannot be daunted by fear, nor muzzled by affection, reward, or hope of preferment, and therefore may safely be believed.’ . . . ” This statement should be read in conjunction with Dickinson’s reason for adhering to the rule of law: “[M]iserable is the servitude when the laws are uncertain.”
Tomorrow: John Dickinson’s activities during the Continental and Confederation periods.
The U.S. Supreme Court has held that the Fifth Amendment bars the government from requiring criminal defendants to testify against themselves, but it has upheld requirements that people provide physical evidence, such as through drunken-driving breathalyzer tests. In the words of Justice Brennan’s Schermber v. California (1996) majority opinion,
[T]he [Fifth Amendment] privilege [against self-incrimination] is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.
But in today’s Olevik v. State decision, the Georgia Supreme Court has held that the Georgia Constitution’s privilege against self-incrimination is more protective, and that people cannot be forced to incriminate themselves via normal breathalyzer tests. Indeed, the court overruled a 2000 Georgia Supreme Court that had allowed such compulsion. (The refusal to take such a test may still lead to civil remedies, such as loss of a license, but that’s a different matter, because the privilege applies only to criminal cases.)
And this is especially noteworthy, I think, because the court is generally viewed as a conservative court, two-thirds of whose members (6 out of 9) have been appointed by Republican governors — not the sort of court that you would expect to read criminal procedure rules in a more pro-criminal-defendant way than Justice Brennan did in the heyday of the Warren Court. Yet the court’s rationale fit traditional conservative views about originalism and longstanding precedent, though with a twist that is peculiar to state constitutions, which are often revised and re-ratified every several decades; here’s the heart of the court’s reasoning:
The Georgia Constitution provides that “[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating.” Ga. Const. 1983, Art. I, Sec. I, Par. XVI (“Paragraph XVI”). If we were construing Paragraph XVI in the first instance, we might conclude that the scope of Georgia’s right against compelled self-incrimination is coterminous with the right guaranteed by the Fifth Amendment to the United States Constitution, which is limited to evidence of a testimonial or communicative nature. But we are not meeting Paragraph XVI for the first time; this constitutional provision has been carried over from prior constitutions, and it has brought with it a long history of interpretation….
We interpret a constitutional provision according to the original public meaning of its text, which is simply shorthand for the meaning the people understood a provision to have at the time they enacted it. This is not a new idea. Indeed, there are few principles of Georgia law more venerable than the fundamental principle that a constitutional provision means today what it meant at the time that it was enacted. “[T]he Constitution, like every other instrument made by men, is to be construed in the sense in which it was understood by the makers of it at the time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them.” Padelford, Fay & Co. v. Savannah (Ga. 1854). “A provision of the constitution is to be construed in the sense in which it was understood by the framers and the people at the time of its adoption.” Collins v. Mills (Ga. 1944).
In determining the original public meaning of a constitutional provision, we consider the plain and ordinary meaning of the text, viewing it in the context in which it appears and reading the text in its most natural and reasonable manner. And although the text is always our starting point for determining original public meaning (and often our ending point, as well), the broader context in which that text was enacted may also be a critical consideration. “Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption.”
One key aspect of that broader context is the body of pre-enactment decisions of this Court interpreting the meaning of certain text that the framers of our Constitution subsequently chose to use. In such cases, the text the framers chose had already been definitively interpreted. When the framers of our Constitution considered language that had already been definitively interpreted and kept it without material alteration, they are strongly presumed to have kept with the text its definitive interpretation. …
When we consider the original public meaning, we necessarily must focus on objective indicators of meaning, not the subjective intent of particular individuals that the language mean something idiosyncratic. The importance of this objective approach is plain when we consider our similar focus in statutory construction. When we consider the meaning of statutes enacted by 236 members of the General Assembly, we determine meaning from text and context, “not the subjective statements of individual legislators.” This focus on the objective meaning of statutory text is by necessity, for how can we possibly determine the subjective intent of 236 legislators (and a governor) by any method other than focusing on the text they enacted? …
Applying these principles, we construe the right against compelled self-incrimination preserved by Paragraph XVI in the light of the meaning of Paragraph XVI’s materially identical ancestors. The right against compelled self-incrimination achieved constitutional status in Georgia for the first time in the 1877 Constitution…. A case we decided just two years after the 1877 Constitution was adopted (and have never since overruled) is thus critical to the understanding of the scope of the right against compelled self-incrimination. In Day v. State (1879), we held that this constitutional right protected a defendant from being compelled to incriminate himself by acts [there, by being compelled to place his foot in certain footprints located near the crime scene], not merely testimony…. At no point through this history was the constitutional language changed to abrogate Day‘s interpretation, nor did we reconsider Day. To the contrary, we have consistently and repeatedly applied the state constitutional protection against compelled self-incrimination in accord with Day. [Citations omitted. -EV] Thus, although Paragraph XVI refers only to testimony, its protection against compelled self-incrimination was long ago construed to also cover incriminating acts and, thus, is more extensive than the Supreme Court of the United States’s interpretation of the right against compelled self-incrimination guaranteed by the Fifth Amendment.
Notwithstanding this well-aged precedent recognizing that the state right against compelled self-incrimination applies beyond mere testimony, the State argues that we should construe Paragraph XVI according to its plain text and limit the right to only what is commonly understood today to be “testimony,” i.e., spoken or written statements of certain kinds. The State argues that we erred in Day by ignoring the plain language of the constitutional provision and cites legislative history surrounding the creation of the 1877 Constitution as evidence that the framers of that constitution intended for the right against self-incrimination to be limited to testimony.
But even if the State were right that Day (and all the other cases that have since followed it) misread the constitutional text, we are no longer governed by the 1877 Constitution that Day interpreted. Since issuing our decisions in Day (1879) and Calhoun (1916), the people of Georgia have adopted three new constitutions (1945, 1976, and 1983). Our current constitution adopted in 1983 contains self-incrimination language that is identical in all material respects to the language interpreted in Day and Calhoun.
Thus, even if we were wrong in Day and Calhoun to extend the right against compelled self-incrimination beyond spoken and written statements, the subsequent ratifications of new constitutions with the same language are strongly presumed to have carried forward the interpretation of that language provided by Day and Calhoun. As we explained above, the adoption of a new constitution containing materially identical language already clearly and authoritatively construed by this Court is strongly presumed to have brought with that language our previous interpretation. This is so regardless of whether those holdings were well-reasoned at the time they were decided. The people of Georgia, by ratifying that constitutional text, ratified the scope of Paragraph XVI as Day explained it….
[In our precedents], we have held that a defendant’s right against compelled self-incrimination was violated when he was compelled to place his foot in certain footprints located near the crime scene. We also have held that a defendant’s right against compelled self-incrimination was violated when he was required to stand up at trial so that a witness could verify that the defendant’s leg had been amputated in a way that corresponded to tracks left at the crime scene. We have concluded that a defendant’s right against compelled self-incrimination was violated when he was required to drive his truck onto scales in order to determine whether he was operating a vehicle weighing more than permitted by law. We have also ruled that requiring a defendant to produce a handwriting exemplar violates the self-incrimination provision.
In contrast, the right against compelled self-incrimination is not violated where a defendant is compelled only to be present so that certain incriminating evidence may be procured from him. Consequently, we have ruled that the right is not violated by removing clothing from a defendant. Similarly, the right is not violated when evidence is [such as DNA] taken from a defendant’s body or photographs of the defendant are taken….
In sum, Paragraph XVI prohibits compelling a suspect to perform an act that itself generates incriminating evidence; it does not prohibit compelling a suspect to be present so that another person may perform an act generating such evidence…. [O]btaining [a] deep lung breath [through a breathalyzer test] requires the cooperation of the person being tested because a suspect must blow deeply into a breathalyzer for several seconds in order to produce an adequate sample. As the State conceded at oral argument, merely breathing normally is not sufficient.
The State argues that no compelled act is involved because a breath test only captures a “substance” naturally excreted by the human body, in the same way that collecting a urine sample does not violate a defendant’s right against compelled self-incrimination…. [But a]lthough a person generally expels breath from his body involuntarily and automatically, the State is not merely collecting breath expelled in a natural manner. For a breath test, deep lung breath is required…. [F]or the State to be able to test an individual’s breath for alcohol content, it is required that the defendant cooperate by performing an act. Compelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits. Calhoun (the right against compelled self-incrimination protects one from “doing an act against his will which is incriminating in its nature”).
UPDATE: I originally erroneously wrote that all the Georgia Supreme Court Justices had been appointed by Republican Governors, but reader David Emadi alerted me to my error — the number is actually 6 out of 9 (including Justice Peterson, who wrote the unanimous opinion). My apologies for the mistake, and many thanks to Mr. Emadi for the correction.
Last week, Whittier College … hosted California’s Attorney General, Xavier Becerra, in a question-and-answer session organized by Ian Calderon, the Majority Leader of the California State Assembly.
They tried to, anyway.
The event ended early after pro-Trump hecklers, upset about Becerra’s lawsuit against the Trump administration over DACA, continuously shouted slogans and insults at Becerra and Calderon. A group affiliated with the hecklers later boasted that the speakers were “SHOUTED DOWN BY FED-UP CALIFORNIANS” and that the “meeting became so raucous that it ended about a half hour early.”
The event, held in Whittier College’s Shannon Center theater, was free and open to members of the community, and featured introductions from both Whittier’s president and student body president. Becerra and Calderon were to have an hour-long question-and-answer session using audience questions randomly selected from a basket. As soon as they began the discussion, however, hecklers decked in “Make America Great Again” hats began a continuous and persistent chorus of boos, slogans, and insults….
Read the whole thing for more details, and for possible means of punishing such appalling interference with free speech; I also blogged about the California statute that Steinbaugh mentions when it was used to convict the University of California at Irvine students who had disrupted the Israeli ambassador’s speech.
Alex Jones, contact LLOG immediately! Never mind Pizzagate, never mind Sandy Hook, never mind the FEMA concentration camps, never mind the fake moon landings. This morning I stumbled on evidence, lying around in plain sight, for a systematic program of deception so huge — and yet so improbable — that even InfoWars listeners will find it hard to believe: Donald Trump is actually Barack Obama in disguise.
For years, I've been collecting and analyzing the weekly addresses of various American presidents — see e.g. "Political sound and silence", 2/8/2016; "Some speech style dimensions", 6/27/2016; "Trends in presidential pitch", 5/19/2017; "Trends in presidential pitch II", 6/21/2017.
Today I was catching up with Donald Trump's weekly addresses, downloading the .mp3 files from whitehouse.gov. The most recent weekly address is available at
with the mp3 download link
After downloading the mp3 file, in order to check its characteristics, I ran soxi. I've done this before, but in the past I just looked at the things I cared about, namely the sampling frequency and number of channels. But this time, I happened to look at the ID3 metadata fields as well:
Input File : '20171013_Weekly_Address.mp3'
Channels : 2
Sample Rate : 16000
Precision : 16-bit
Duration : 00:03:26.17 = 3298752 samples ~ 15462.9 CDDA sectors
File Size : 3.45M
Bit Rate : 134k
Sample Encoding: MPEG audio (layer I, II or III)
Artist=President Barack Obama
Album=The White House
I wondered whether this was a one-time glitch, so I checked the history. The first of President "Trump"'s weekly addresses is available at
with the mp3 download link
And the metadata is the same:
Input File : '20170203_Weekly_Address.mp3'
Channels : 2
Sample Rate : 16000
Precision : 16-bit
Duration : 00:04:20.24 = 4163904 samples ~ 19518.3 CDDA sectors
File Size : 4.27M
Bit Rate : 131k
Sample Encoding: MPEG audio (layer I, II or III)
Artist=President Barack Obama
Album=The White House
In fact this is consistent in all of the Weekly Addresses from Donald Trump's White House.
It's not an issue in all mp3 encodings from the White House — thus Melania Trump's 10/17/2017 "Hurricane Relief PSA" is attributed to "Artist=The White House", even if the year is still given as 2016:
Input File : '20171011_FLOTUS_DTC.mp3'
Channels : 2
Sample Rate : 16000
Precision : 16-bit
Duration : 00:00:31.50 = 504000 samples ~ 2362.5 CDDA sectors
File Size : 696k
Bit Rate : 177k
Sample Encoding: MPEG audio (layer I, II or III)
Title=FLOTUS DTC – T6
Artist=The White House
Album=The White House
And the same is true for the president's joint news conference with PM Theresa May back in January:
Input File : '20170127_POTUS_and_PM_May_JPA.mp3'
Channels : 2
Sample Rate : 16000
Precision : 16-bit
Duration : 00:18:19.20 = 17587168 samples ~ 82439.9 CDDA sectors
File Size : 17.8M
Bit Rate : 130k
Sample Encoding: MPEG audio (layer I, II or III)
Title=POTUS and PM May JPA
Artist=The White House
Album=The White House
It's just the weekly addresses that are attributed to "President Barack Obama"
By the way, you may be as disappointed as I was to learn that the "Genre=12" just means "Other" — I was hoping for maybe " => Pranks" or " => Cult" or " => Christian Gangsta".
Jokes aside, what this means is presumably that the Trump White House inherited a recording and web-distribution set-up from the Obama White House, and neglected to change the ID3 metadata information for various categories of material.