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OpenMarket: Law and Constitution

  • CEI Joins Coalition Supporting Bill to Curb Abusive Lawsuits Targeting Free Speech

    February 2, 2016 2:39 PM

    Today, the Competitive Enterprise Institute joined seven other free market organizations in a coalition letter expressing our strong support for the SPEAK FREE Act, which would curtail frivolous lawsuits brought to chill protected speech and stifle criticism about matters of public concern. These lawsuits, known as “strategic lawsuits against public participation”—or SLAPPs—are brought by plaintiffs to punish speakers they dislike, even though the speech is protected by the First Amendment. Even though defendants in such cases usually prevail in court, they must still spend lots of time and money defending themselves through the litigation process.

    To combat SLAPPs, the SPEAK FREE Act would let defendants move to dismiss lawsuits targeting speech about matters of public concern unless the plaintiff can show the court that the suit is likely to succeed on its merits. The bill, which resembles anti-SLAPP laws that have been enacted by 28 states, would also empower defendants sued in state court to remove SLAPP lawsuits to federal court.

    You can read the coalition letter here.

  • In FERC Ruling, Supreme Court Announces Dangerous New "No Man's Land" Principle

    January 28, 2016 1:07 PM

    On January 26, the Supreme Court ruled in favor of the federal government in a high profile case, FERC v. Electric Power Supply Association. Media reports have focused on how the Court’s ruling boosts federal efforts to advance a policy known as “demand-side management,” whereby grid operators “manage” ratepayer demand by paying retail consumers to not use electricity during periods of peak demand. In fact, demand-side management is a stupid idea because the alternative—lifting electric socialism and allowing the price mechanism to regulate demand—is so much more efficient.

    However, for this post, the policy implications of the Court’s decision are merely an unpleasant aside. Instead, the point of this blog is to explain how the Court’s troubling reasoning invites the federal government to expand its regulatory authority.

  • State Attorney General Climate Change Investigations Are Unconstitutional

    January 27, 2016 1:36 PM

    Should government officials be able to cut off donations to groups because they employ people disparaged as “climate change deniers,” even if the group in question is a think tank that studies a wide range of topics, only a few of which relate to climate change at all, and the “denial” in question includes telling politically inconvenient truths about the cost of proposed climate change legislation? Only a single-issue zealot with ideological blinders and a contempt for the First Amendment would think so. 

    But that hasn’t stopped New York Attorney General Eric Schneiderman and California Attorney General Kamala Harris investigating Exxon, partly for making donations to think tanks like the American Enterprise Institute and groups like the American Legislative Exchange Council because these large organizations include a few people deemed “climate change deniers,” even though climate change has no relation to most of their activities. (I have been to many speeches and luncheons at AEI, and not a single one related to climate change or even energy or environmental policy.)

    The First Amendment has long been interpreted as protecting corporate lobbying and donations, even to groups that allegedly deceive the public about important issues. For example, in In re School Asbestos Litigation, 46 F.3d 1284 (3d Cir. 1994), a federal appeals court ruled that the maker of an asbestos product could not be held liable for joining and financially supporting a trade association for makers of asbestos products, even though the trade association allegedly “disseminated misleading information about the danger of asbestos in schools directly to” the plaintiffs, where “at least some” of the trade association’s “activities were constitutionally protected.”

    So even if being a “climate denier” were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a non-profit that employs such a person would not be (especially given that a think tank like AEI also contains scholars whose positions on subjects like tax policy, labor law, property rights, and lawsuit abuse would be congenial to a corporation like Exxon).

    In any event, judging from Schneiderman’s own remarks, Exxon did not engage in any deception about the health risks of its products when used (the way asbestos makers were accused of doing, and the way the big tobacco companies in fact long did), much less speech unprotected by the First Amendment. What angers Schneiderman most appears to be political opposition to certain controversial environmental legislation, not deception or views at odds with sound science: He is upset that Exxon had the temerity to note that policies advocated by climate change activists have real world costs, and may not be politically viable.

  • CEI to Appeals Court: FOIA Covers Agency Officials' Work-Related Emails Stored on Private Server

    January 20, 2016 7:25 AM

    The U.S. Court of Appeals for the D.C. Circuit could soon deliver a pivotal ruling in the case of Competitive Enterprise Institute v. Office of Science and Technology Policy. Our lawsuit involves a Freedom of Information Act (FOIA) request seeking work-related emails from the personal email account of Dr. John Holdren, who has directed the White House’s Office of Science and Technology Policy (OSTP) since early 2009. This case could set an important precedent affirming FOIA’s vitality in digital era, ensuring that agency employees who increasingly conduct official business using non-governmental accounts—or even private servers—cannot evade the scrutiny of journalists and watchdog groups.

    CEI filed this FOIA request in October 2013, asking the agency for emails sent to or from Holdren’s non-governmental email account relating to his official business as OSTP’s chief. Our request specifically asked for work-related emails in Holdren’s Woods Hole Research Center account, jholdren@whrc.org, where he worked before President Obama tapped him to head OSTP. Even after joining the White House, Holdren kept using his private email account to correspond with other administration officials, as revealed by documents produced in response to a different CEI FOIA request involving the “Richard Windsor” alias used to conduct official business by former EPA Administrator Lisa Jackson.

    Instead of searching Holdren’s private account for responsive documents, however, OSTP initially claimed we had requested records that were “beyond the reach of FOIA.” After we challenged this decision, OSTP eventually gave us emails from Holdren’s official OSTP account to or from his private account—but it did not search his private account as we had requested.

  • Congress Rewards Education Department for Overreaching and Flouting Checks and Balances

    December 17, 2015 3:38 PM

    At Powerline, lawyer Paul Mirengoff writes about one of the many disturbing provisions buried in the budget-busting omnibus spending bill currently being passed by Congress as part of a compromise with the White House (a monstrosity known as “the Consolidated Appropriations Act of 2016”). It increases the budget of an office in the Department of Education that is a prime culprit in the spread of invalid, unvetted, and uncodified rules and regulatory “dark matter”: the Office for Civil Rights:

    The omnibus bill apparently grants a 7 percent increase in the budget for the Department of Education’s Office for Civil Rights (OCR).

    This outfit does all it can to impose the left’s agenda at the K-12 and college levels. In doing so, it often ignores the law, defining perfectly legal conduct as unlawful.

    If the OCR’s resources are stretched thin, it’s because of its overreach, based on a willful misreading of the law. By increasing OCR’s budget, Congress rewards its misconduct. The budget should be slashed, not increased.

    Congressional appropriators gave OCR a budget increase even though OCR has been criticized by the head of the Senate Education Committee for its lawless overreach in rewriting laws passed by Congress.

  • CCAF Asks Supreme Court to Hear Challenge on Duracell Class Action Settlement

    December 11, 2015 3:21 PM

    Today, the Center for Class Action Fairness petitioned the U.S. Supreme Court to hear a case challenging an abusive class action practice where trial lawyers pay themselves the bulk of the cash recovery ($5.7 million), the class members receive just a fraction of that ($344,000), and the settlement hands out millions to third parties who are not part of the class.

    The original class action lawsuit, Joshua D. Poertner v. The Gillette Co. et al., centers on seven million class members who sued over dubious advertising about Duracell batteries. Class counsel structured a settlement that paid class counsel $5.7 million in fees and expenses and provided a cy pres award of $6 million in batteries to a third-party charity, while class members were awarded $3 to $6 in claims for future battery purchases, with over 99 percent of the class receiving nothing. Class counsel also took credit for an injunction forbidding certain labeling on Duracell Ultra-brand batteries—an injunction that provided no possible benefit because the product had been discontinued before the case settled.​

  • Pennsylvania Legislature Begins Process of Firing Attorney General Kathleen Kane

    November 30, 2015 12:51 PM

    Last month, Pennsylvania Attorney General Kathleen Kane stubbornly clung to office, refusing to resign even after she was suspended from practicing law for her alleged crimes and ethical violations by the Pennsylvania Supreme Court (crimes including official oppression, perjury, and obstruction of justice).

    Even before she was suspended from the bar, we had already rated Kane as the nation’s worst state attorney general.

    Now, the Pennsylvania State Senate has begun the difficult, time-consuming process of removing Kane from office, with a committee voting 5-to-2 to move forward. I discuss that decision, and the events leading up to it, at this link.

    Pennsylvania’s state constitution expressly empowers the senate to remove Kane for her misconduct. Yet Kane claims that any attempt to remove her would be unconstitutional, an argument rejected by legislators of both parties (including some of Kane’s fellow Democrats who think her removal from office is premature as a policy matter).

    Kane’s intransigent stubbornness elevates her own selfish interests ahead of her state’s, contrary to her fundamental ethical duties as an attorney. Kane’s refusal to step down endangers her office’s ability to carry its responsibilities, since as a suspended lawyer, she is no longer allowed to practice law, and practicing law includes supervising other lawyers—something she continues to do, including overseeing criminal prosecutions by others in her office.

  • Unconstitutional Sexual-Orientation Set-Asides in Massachusetts

    November 17, 2015 4:06 PM

    Government contracts should go to the lowest bidder, not be set aside for a particular group. So it is unfortunate that Massachusetts’s governor is now imposing set-asides in state contracts for LGBT businesses that appear to be unconstitutional. 

    Set-asides are unfair, discriminatory, and costly to taxpayers. They are also generally unconstitutional when they are not being used to remedy the present effects of the government’s own past discrimination. 

    These set-asides were apparently imposed in the name of “diversity.” But that is not a valid justification here. A federal appeals court struck down sexual set-asides in broadcast licenses in Lamprecht v. FCC , 958 F.2d 382 (D.C. Cir. 1992). It ruled that outside the educational setting, “diversity” is not a reason for preferences or discrimination under the Constitution’s “intermediate scrutiny” standard. Accordingly, it declared unconstitutional governmental “diversity” preferences based on sex. (For a later court ruling confirming this principle, see Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998).)

  • The Misguided Attempt to Censor Yik Yak

    October 29, 2015 9:57 AM

    People often seek to restrict new means of communication in ways that would never be applied to older forms of communication, sometimes based on fear of new technologies or illogical rationales. A recent example is the demand by 72 left-wing women’s groups and civil-rights groups that the federal government force colleges to block access to the social media app Yik Yak. They claim such measures are required by the federal civil-rights laws Title IX and Title VI. They want colleges to ban a form of social media just because a few users make racist, sexist, or threatening comments on it.

    The fact that a few users make bigoted or even threatening comments is not sufficient reason to shut down an entire medium of communication. No one would advocate banning demonstrations just because a few demonstrators uttered racist or inappropriate comments. New modes of communication like Yik Yak should not be treated any differently or worse. As I explain at this link, if the federal government granted their demand to crack down on Yik Yak, it would flagrantly violate the First Amendment.

    The Supreme Court’s 1997 decision striking down an Internet decency law likened such sweeping censorship to “burning the house to roast the pig.” In The Washington Post, law professor Eugene Volokh correctly described these women’s groups as a “national coalition in favor of campus censorship.” 

  • More Affirmative-Action Red Tape for Contractors: Sexual Orientation Added in California

    October 26, 2015 12:17 PM

    Governments impose a cobweb of complicated and confusing affirmative-action mandates on government contractors. That imposes billions of dollars in compliance costs on contractors. It also reduces the pool of contractors competing for government contracts, sometimes massively increasing the cost to taxpayers of transportation projects and government services by weeding out the most efficient contractor.

    California provides the latest example: new sexual-orientation-based affirmative-action mandates, imposed for certain subcontracts by California Public Resources Code § 25230. Loan recipients must now provide “outreach” to “LGBT business enterprises” alongside enterprises owned by women, “African Americans, Hispanic Americans, Native Americans, and Asian Pacific Americans.” As I explain at this link, these mandates are of doubtful legality, since the California state constitution subjects sexual-orientation classifications to strict scrutiny, and California appellate precedent applies strict scrutiny even when a classification prefers a minority rather than a majority. UCLA law professor Eugene Volokh raises practical questions about the new mandate, such as how it may be gamed by heterosexual subcontractors who claim to be bisexual.

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