Daily Archives: September 4, 2021

Peter H. Lewis| Asheville Watchdog

Congressman Madison Cawthorn, Republican representing Western North Carolina, spoke this week to Macon County Republicans in Franklin. The organizer estimated the crowd at more than 200 people. The Macon County Republican Party posted a 1-hour, 28-minute video on its Facebook page, but removed it after Cawthorns remarks attracted nationwide scrutiny.

A copy of the video still can be found on YouTube.

During remarks that were frequently interrupted with applause and cheers from the overwhelmingly white, unmasked crowd, Cawthorn, holding a shotgun he was asked to sign, says the Second Amendment is not for hunting or target shooting but rather for fighting tyranny. He advises the crowd to begin stockpiling ammunition for what he says is likely American-versus-American bloodshed over unfavorable election results.

He repeats his claims that the American election system is rigged and that the 2020 election was stolen from Donald Trump, who, he says, is still Americas legitimate president, and that North Carolina Gov. Roy Cooper actually lost, despite defeating Dan Forest by nearly 250,000 votes. He says rioters arrested in the fatal attack on Congress on Jan. 6 are political prisoners, and discusses plans to try and bust them out. He tells the crowd we are actively working on plans for another similar protest in Washington. When tyranny becomes law, rebellion becomes your duty, he says.

Related: Nancy Pelosi, Liz Cheney say Rep. Madison Cawthorn's 'bloodshed' comments should be condemned

Cawthorn calls for civil disobedience and urges boycotts of businesses that require masks or vaccine passports to halt the spread of the COVID-19 virus. He vows to prosecute Anthony Fauci for the crimes that he has done as head of Americas effort to stop the spread of infectious diseases, and urges parents to defend your children against the vaccine.

In the following verbatim transcription of excerpts of Cawthorns remarks, Asheville Watchdog makes no attempt to flag, correct, or add missing context to a multitude of false, misleading, and confusing statements made by the 26-year-old freshman Congressman.

Opinion pieces on Rep. Madison Cawthorn:

In the video, Cawthorn begins speaking at timestamp 35:30.

(38:20) When you start looking at whats going on in our country, when you see the riots that happened all throughout the (makes air quotes) summer of love (air quotes) last year, that left dozens of cops dead, that left cities completely destroyed and burned, even in our own local city of Asheville … you know its sad we have to claim it (laughter, applause) … even here in our own city weve seen the devastation …

(39:43) The days of us being on defense and letting (Democrats) run roughshod over our country are over. We are going on offense, and I promise you, if you all reelect me and we get a majority in the House of Representatives, I promise you … were not going to be sitting around not holding anyone accountable. I will prosecute Anthony Fauci for lying to Congress (cheers, applause) … for the crimes that he has done …

(41.20) (Democrats are) playing to destroy everything we believe in ... They want to take away law and order. They want to take the bulletproof vest off our men who wear the uniform. They want to come in and take your children away and try and put them in indoctrination camps. I dont even call them public schools anymore because they dont work in the public interest of the American people.

(45:36, speaking about Afghanistan) I called President Trump after I saw Joe Biden say (mocking voice) Oh this is Donald Trumps plan, and I knew he was lying but I needed to verify it for myself … I will say, being able to call President Trump is one of the coolest things in the world. Any time Im faced with a very difficult issue, Im like, Sir, what would you do in this situation? and then he gives incredible ideas, he knows exactly what to do. … When Joe Biden says that we had no idea the Taliban could do this, that is a lie. I have a security clearance that allows me to see the intelligence reports. The Joe Biden administration knew what was going on, they knew that the Taliban would take over in a matter of days, we just spent 20 years, thousands of American lives, and 20 trillion dollars (sic) to replace the Taliban with the Taliban …

(47:42) That is why when I see a president who is in such clear mental cognitive decline that he is incapable of carrying out the duties of the office defending ... our homeland, that is why I have voted to formally request we invoke the 25th amendment to remove the president from office. … I know that youre all sitting here thinking, It would remove the president. Well, Madison, thats great but it leaves us with Kamala Harris. (Woman shouts, And Obama too.) Thats actually a great point. (Woman shouts, And Pelosi too.) … Im actually very upset that I said the Joe Biden administration. Joe Biden is the front man; he is not making the calls. I promise you that. And I will tell you, now that were talking about Kamala Harris, if she were to take over as president, and Im betting on her own vanity where she says, Oh well, Im the least popular vice president in history, theres no way Ill be able to run for president after this, and so I believe Im counting on her vanity to actually invoke it (the 25th amendment) because thats the only way she can become president.

(48:15) We were on a conference call with all the elected Republicans … and they were just talking in circles. Oh well, what are we going to do to actually get this guy (Biden) out of office in 2024. I said, 2024? We cannot wait! The future of our country depends on we need to take action now ...

(49:55) I do believe we should have gone after Hillary Clinton when we had all the power in Washington. I am sick and tired of this liberal privilege of where people can go out and actively do treasonous acts, they can do heinous crimes and break the law, and there are no consequences. That is why I will remove Joe Biden from office, and then, when Kamala Harris inevitably screws up, we will take them down one at a time until we have our country back.

(50:30) And so my friends Im sure youre all sitting around wondering, Well, Madison, this is all great, and Im sure youll be able to impeach Kamala Harris if you have a majority in Congress, but can we actually trust our voting system? And Ill tell you, anybody who tells you that Joe Biden was dutifully elected (audience boos), we all saw the fraud, it was on full display in front of us, we know it was a stolen election ...

(51:45) When I see that Donald Trump won this state, I see that (woman shouts, Dan Forest won too), yup, and Im probably the furthest, most conservative person in Congress. I won my seat, we had someone who was a terrible campaigner and a complete RINO (Republican in Name Only), Tillis, win, and then when we start seeing everything going on, all these people won statewide, but then Dan Forest lost? Lemme tell you, thats wrong right there.

(53:43) The Democrats have made a fatal mistake. They have pissed off the moms … when I see whats going on in our public schools, and again, government schools, when I see whats going on with our school boards right now, Im tired of it … and I dont just want to get up in Washington and pontificate on it, and that is why Im going to every single school board meeting in all of my counties, and make sure they know exactly what we want from them, and theyre going to be held to account for what they do to our children. Believe me, the next generation is watching our actions right now, and I do not believe that any single person gathered around right now wants to look their child in the eye when they maybe become an adult, and they look at them and say, Hey mom, hey dad, what was freedom like? (crowd groans). We will not let the indoctrination of our youth happen in this country …

(55:10) I deal with these vipers and these vicious people and the attack ads every single day. But I tell you I dont care what these attack ads on CNN call me, because they did not call me to this position, you all called me, and God almighty called me.

(1:02:32) The only good thing that came out of Donald Trump not winning the election, uh, even though he obviously won, um, the only good thing about him not actually being in office is that every single person that left the administration sent an application to my office, and so we got the pick of the litter, and Im surrounded by a team of my very best friends, people I trust with my absolute life …

(1:03:10Questioner asks, What are your thoughts about vaccine passports.) Well, my true thoughts are not appropriate to say when there are ladies in the room, but … when they start instituting vaccine passports, when they start using private industry to do that, we need to not shop at those restaurants, we need to not shop at those stores, we need to decide right now, hey, you know what? Im going to serve myself at home … If they want us at the local Ingles or Food Lion, or whatever it is, wants to say, You need a vaccine passport to get in here, I will call our farmers, I will set up a farmers market … Something I firmly believe, when tyranny becomes law, rebellion becomes your duty. If they want to bring these tyrannical rules down upon us … We need a little civil disobedience, and we need to say were going to stop you, because Ill tell you, if you give the government power in an emergency, they will create an emergency to take that power ... I stand against vaccine passports, and I encourage all of you to stand against them also.

(1.08:40) … So let me tell you, I think most of these four-year degree universities are completely useless, but I tell you, if we keep subsidizing these student loans, theyre creating an entire generation of people who are dependent on the government for their paychecks, and then they have too much debt to ever be able to apply for a mortgage, and then theyll never actually own any land, and then we have Planned Parenthood being planted in every single community, so we have abortion on demand, and then in our minority communities we are subsidizing fatherless homes, and so these people, they dont own any land because the students in this country have too much student loans, they dont, uh, arent able to actually make any money because their degree is useless in Ethiopian Womens Studies (crowd laughter), and then they are encouraged not to have any children with the third wave of feminism, uh, then these people own no land so they dont care about the financial stability of our country, they dont have any children so they dont care about the next generation, let me tell you, that is creating sheep, and thats what the Democrats are trying to do …

(1:10:50Questioner asks, With the situation that we have with the masks and all that …What else do you recommend that we can do to kind of help get this poison off these kids faces?) I totally agree. You know as well as I do that this is anti-science. This disease, I mean, I believe COVID is real, it was created in a lab, (unintelligible) leaked from Wuhan, its a real virus, but the particles of this virus are so small theyll pass right through your mask. I mean when you go to a Mexican restaurant with a mask on your face, and by the way, dont eat at a Mexican restaurant that will make you wear a mask, I mean just as an analogy when you roll past a fresh plate of fajitas coming out and its steaming, you can sit there and smell literally whats going on, you think the smallest virus in history cant get through your cloth mask?

(1:14:15 Questioner asks, What are you doing to support the 535 Americans that were held capture in from January 6?) Political hostages, make no doubt. ... The big problem is we dont actually know where all the political prisoners are, and so if we were to actually be able to go and try and bust them out, and let me tell you, the reason why theyve taken these political prisoners (is) because theyre trying to make an example to say, because they dont want to see the mass protests going on in Washington ...

(1:15.05 Questioner asks, When are you going to call us to Washington again?) We are actively working on that one. I dont have an answer to that one right yet. Maam, we are actively working on this, we have a few plans in motion that I cant make public right now. Um, but this is something we are working on. There are a lot of Republicans that dont want to talk about this because they say, Oh, thats too controversial. Whats controversial is, we have 536 people who are being held in solitary confinement for 23 hours out of the day who are not being allowed to be able to have religious freedoms, who are having their rights stripped away from them and not being capable of having someone come represent them, its political hostages.

(1:16:00 Questioner asks, When will the government stop pushing vaccines on people?) They are going to continue pushing this because they want to beat us down, they want us on our knees so they can do whatever they want. (He urges questioner to ask her pastor for a letter of religious exemption from vaccine requirements for her school-age children.) There are a lot of vaccine injuries that are starting to happen. Im starting to look at the VAERS database (the governments Vaccine Adverse Event Reporting System) specifically with this vaccine, the damage its causing the people, with infertility, with miscarriages, with uh, the list is a mile long (unintelligible) heart attacks (unintelligible) … defend your children … its not worth it to put an experimental jab into your sons arms.

(1:20:35, Cawthorn, holding shotgun) The second amendment was not written so that we can go hunting or shoot sporting clays. The second amendment was written so that we can fight against tyranny. If you want to see how hypocritical the Democrats are, when they tell you that you cannot have an AR-15 … although I do want to get machine guns re-legalized … you have a normal AR-15, you pull the trigger once, one bullet comes out, and they say, Oh, you cant have that because, you know, thats a weapon of war, its too dangerous, but then they want to give a fully automatic M4s to the Taliban? These people do not have your best interests at heart. I highly recommend that, as much fun as we have target shooting, we all need to be storing up some ammunition.

(1.22.15) But my friends, you know, everything that were sitting here talking about, were all so passionate right now, the thing that we are wanting to fight for, it doesnt matter if our votes dont count. Because, you know, if our election systems continue to be rigged, and continue to be stolen, its going to lead to one place, and its bloodshed. And I will tell you, as much as I am willing to defend our liberty at all costs, theres nothing that I would dread doing more than having to pick up arms against a fellow American …

CODA: After House Speaker Nancy Pelosi (D-CA) called on House Republicans to condemn Cawthorn's remarks at the Macon County GOP event, Rep. Cawthorn's office issued a press release.

Speaker Pelosi took advantage of a left-wing media hit job and lied about my words for her gross political agenda," Cawthorn said Sept. 1. "She dangerously and deliberately chose to mischaracterize my comments as violent speech when I clearly called for violence not to occur. Political violence in America is never acceptable, and I warned in my comments that elections must be secure so others do not erroneously choose that path of violence."

Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Peter H. Lewis is a former senior writer and editor at The New York Times. He can be reached at plewis@avlwatchog.org.

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In Madison Cawthorn's Franklin appearance, 'bloodshed' just 1 of many provocative comments - Citizen Times

In August 2021, the Securities and Exchange Commission (the SEC) announced multiple sizable whistleblower awards totaling approximately $16.1 million to 14 individuals. The awards ranged from $150,000 to $3.5 million. These recent awards continue a pattern by the SEC in late 2020 and 2021 of high dollar awards, some of which have topped $50 million.

The SEC whistleblower program began after Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) in 2010. Dodd-Frank authorizes the SEC to pay individuals that provide information leading to enforcement actions where over $1 million in sanctions is collected between 10% to 30% of the total award. According to the SEC, it has awarded approximately $959 million to 203 individuals since 2012.

Also of note in August, SEC Chairman Gary Gensler issued a statement regarding two September 2020 amendments to the SECs whistleblower program rules that resulted in industry concerns that the amendments would discourage whistleblowers from coming forward. Specifically, one of the amendments could preclude a whistleblower award if another whistleblower program might apply. The second amendment may lower the amount of an award. In response, the Chairman announced that he has directed his staff to consider revisions to the amendments in order to address the perceived disincentives to potential whistleblowers.

Given the SECs continued use and publicity of its whistleblower program to incentivize individuals to come forward and identify potential violations, it is important for companies to create a culture of compliance that prevents violations before they occur.

[View source.]

See the rest here:
SEC Announces More Than $16 Million In Whistleblower Awards In August 2021 - JD Supra

(The Center Square) Over 600new lawswent into effect Wednesday in Texas.

The laws were passed both the House and Senate during the 87th Legislative Session and were signed into law by Gov. Greg Abbott. The new laws exclude several bills that went into effect immediately earlier in the year.

The new laws include several conservative priorities, including the Heartbeat Bill, Texas becoming a Second Amendment sanctuary state, legalizing constitutional carry, ensuring that police departments remain funded, prohibiting public homeless encampments, and providing funding for homeschooling and school choice options, among others.

"The 87th Legislative Session was a monumental success, and many of the laws going into effect today will ensure a safer, freer, healthier, and more prosperous Texas," Abbott said. His two priority legislative items, election reform and bail reform, failed to pass during the regular session and the first special session. They both passed during the second special legislative session.

Laws related to law enforcement include ensuring that cities and municipalities cannot defund their police departments, and enhancing criminal penalties for some offenses.

After the Austin City Council voted to defund its police department and crime increased, the legislature passed House Bill 1900, whichpenalizes cities that defund their police departments. Cities with populations over 250,000 that seek to defund their police departments will have their property tax revenue frozen, according to the new law.

The bill also allows the state to withhold sales taxes collected by a defunding city and give it to the Texas Department of Public Safety to pay for the cost of state resources used to protect residents of a defunded municipality.

For counties with a population of more than 1 million, another new law, Senate Bill 23, requires voter approval to reduce law enforcement budgets. If voter approval is not received, but the county still defunds police, the county's property tax revenue will be frozen by the state.

Two notable new laws are SB 576, whichmakes human smuggling a felony in the state of Texas, and SB 768, whichenhances criminal penalties for manufacturing and distributing fentanyl in Texas.

Laws increasing criminal penalties include HB 9, which enhances the criminal penalty to a state jail felony offense for anyone who knowingly blocks an emergency vehicle or obstructs access to a hospital or health care facility, and HB 2366, whichenhances criminal penalties for the use of laser pointers and creates an offense for the use of fireworks to harm or obstruct the police.

Laws aiding law enforcement include HB 103, which created an Active Shooter Alert System in Texas, and HB 3712, whichprovides increased training and transparency during the hiring process for peace officers.

Laws furthering gun rights include HB 2622, whichmakes Texas a Second Amendment sanctuary state and protects Texans from new federal gun control regulations, and HB 1927, which allows law-abiding Texans to legally carry a handgun without a license.

Other notable new laws include creating civil liability protections for farmers and ranchers (HB 365), allowing homeschooled students to participate inUniversity Interscholastic League activities (HB 547), reducing regulatory burdens for learning pods, and outlawing abortion outright in the state of Texas if or when Roe v. Wade is overturned (HB 1280).

Read more:
Over 600 new laws on the books in Texas - The Center Square

A World Without Police: How Strong Communities Make Cops Obsolete, by Geo Maher Verso hide caption

A World Without Police: How Strong Communities Make Cops Obsolete, by Geo Maher

For many, the story of Kyle Rittenhouse seemed like an exceptionally sordid and violent tale in the racial conflict of 2020.

Rittenhouse stands charged with the murders of two protesters and the attempted murder of another who was severely wounded in Kenosha, Wisconsin, at a protest two days after Jacob Blake, who was Black, was shot seven times from behind by a police officer. Rittenhouse was 17 at the time.

When protests erupted in Kenosha, a former city alderman started a militia called the Kenosha Guard, and posted a call on Facebook for "Armed Citizens to Protect our Lives and Property." According to widespread reporting, Rittenhouse drove from Illinois to a car dealership where he met with some police officers affiliated with the Kenosha Guard. After he shot demonstrators trying to apprehend him, he allegedly approached a police officer, who told him to leave the scene. That evening, clips of Rittenhouse shooting the demonstrators and being tossed water from police officers, went viral. Ever since, his case has become a cause clbre for conservatives and supporters of vigilante action against "antifa." Rittenhouse's trial this November stands to be a high-profile affair he is expected to say the shootings were in self-defense one that Paige Williams at The New Yorker argues "has been framed as the broadest possible interpretation of the Second Amendment."

But for Geo Maher, an abolitionist activist, historian and author of the new book, A World Without Police: How Strong Communities Make Cops Obsolete, nothing about Rittenhouse's case is exceptional. In the very first chapter of the book, Maher establishes the police as a fundamentally rotten institution that is rarely distinguishable from the white mob or vigilante killers; instead, he writes, "self-deputized defenders of property and whiteness have almost always served as a brutal adjunct to the police." The line between them is almost nonexistent throughout American history, Maher contends. The police, as with the Rittenhouse case, have always been complicit, Maher argues; from vigilantism on the southern border, to lynch mobs, and modern militias.

Details that have come into focus after the attack on Capitol Hill on January 6 have made clear, Maher writes, just how the police and the violent far-right of this country blur together. Neither Ahmaud Arbery nor Trayvon Martin, among countless others, were killed by active police officers, but they were nonetheless killed by what Maher calls the "pig majority" which includes not just police but their "volunteer deputies...the judges, the courts, the juries, and the grand juries... the mayors and the district attorneys who demand 'law and order'... the racist media apparatus that bends over backwards to turn victims into aggressors." As Tupac Shakur famously put it, the police is "the biggest gang in America," Maher contends.

This all may seem ripped from an overly broad, unrigorous, and dogmatic polemic, but Maher's book is nothing if not exhaustive. From transit police to the police unions under the Fraternal Order of the Police to a complicit Black elite, Maher implicates the police and its allies in the history of American violence writ large. "Police embodied the division of the poor," he writes about the days of slave patrols, "and in their practical function they uphold that division every day, patrolling the boundaries of property and that most peculiar form of property that is whiteness." In that context, Kyle Rittenhouse's story is not surprising, because his victims were people the police institution was never meant to serve or protect.

This may be more visibly obvious today but that's because of how grand the police as an institution has become in terms of sheer scale and power in past decades. There are many times more police officers on streets today as compared to decades ago and state and local spending on police has increased as well, as Maher details. This despite the fact that, as political scientist David Bayley puts it in the book: "one of the best kept secrets of modern life" is that "police do not prevent crime." Maher uses data do support this claim. Meanwhile, there is scant evidence that "police reform," the usual answer to problems with policing, has actually made anything safer: If anything, from bodycams to chokeholds to more diverse police departments, the evidence impressively detailed by Maher suggests that each has actually exacerbated the problems it was meant to fix; while making perpetration of crime by police more likely.

Gallingly, according to several federal court rulings, police often are not legally required to serve and protect communities. One particularly shocking case that Maher points to is the 2018 shooting at Marjory Stoneman Douglas High School, during which the armed sheriff's deputy hid in the school. A federal court ruled that the sheriff's office had no duty to protect the students. This joined a spate of federal and SCOTUS rulings, detailed by Maher, that concluded, in cases from child abuse to domestic violence, the police have no legal duty to protect the public from private, third-party actors.

Maher joins contemporary scholars and organizers including Beth Richie, Michelle Alexander, Ruth Wilson Gilmore who have made sense of the American carceral state through a variety of terms Prison Nation, The New Jim Crow, organized abandonment. They conjoin with a tradition of Black Marxist scholars like W.E.B DuBois, Angela Davis, Keeanga Yamahtta-Taylor, Robin D. G. Kelley in the broad indictment of capitalism and colonialism as active producers of "modern" policing. A recent turn in popular discourse also seemingly breaks from the Marxist tradition in seeing through the lens of both race and class neither subservient to the other as the forces that stratify American society. It should not be surprising then that abolitionism of the carceral state writ large, not merely of police as the demand to defund the police might suggest is ambitious. As the organizer Mariame Kaba has noted, "We are not abandoning our communities to violence. We don't want to just close police departments. We want to make them obsolete."

A World Without Police is of a piece with the current vein of abolitionism espoused by Kaba, Yamahtta-Taylor and others. Indeed, published the same year as Kaba's We Do This 'Til We Free Us, Maher's book, occasionally redundant but mostly complementary, is an indicator of the growing popularity of the radical abolitionist framework. But the title of Maher's book suggests that it serves to answer the "what now?" question that is often asked by critics who find abolitionism to be a grandiloquent suggestion of utopianism, with reform its "pragmatic" counterpart. While the question clearly provides no response to Maher's hefty critique, the title A World Without Police is still a bit of an albatross.

What does Maher think the world without police looks like? It's unclear but not from lack of trying on his part. After all, nobody ever argued that remaking society was supposed to be easy. Maher details the lessons from both failed and tentatively successful grassroots efforts across the country, experiments in restorative justice within city and neighborhood campaigns to "free not only from the police but also from all forms of intra-community violence." He gives the demand to abolish ICE impressive space, connecting immigration and American complicity in the state of Central and Latin American societies with the goal for the global abolition of police. The insistence on "breathing room for over-policed communities to regenerate a lost social fabric and to build real alternatives" and global solidarity is predictable but it tapers off into a haze hard that's to fault Maher for. Abolitionism requires not just the end of the police and prisons but global capitalism: Seeing the world beyond that is famously hard.

"Deep down, we all know what a world without police looks like," Maher claims. A community, maybe. But the world? not so much. Perhaps this is because of a problem with Maher's "global" argument. Under the shadow of empire, including American military interventionism in the present, "the policing of imperial power has developed in conjunction with the domestic policing of colonized and formerly enslaved populations." Global policing binds the specific history of the U.S. to the world writ large, because empire truly was and is global. But a crucial piece of the puzzle seems to be missing. Is the legacy of Western empire sufficient to explain the ubiquity of police in societies across the world?

How did the police even originate? Mileage varies. Maher, like many, argues that the police are an invention meant to protect racial capitalism, and subjugate the working class. The historian Jill Lepore, more reformist than radical thinker, ascribes its origins to slavery. Both seem to be explaining the uniquely powerful iteration of modern police, but militias, torture, vigilantism, and mechanisms of controlling society are all mythological. Every major religion and ancient civilization has its version of a policed society. Is policing as a mechanism of power a feature of human history?

The world beyond police is hard to imagine. But making it easy to want is enough of a feat. Geo Maher's vision may not get readers to see past the horizon into a world without police but it is as convincing as any book can be that we must at least try.

Kamil Ahsan is a biologist, historian and writer based in New Haven. He is an editor at Barrelhouse and his work has appeared in the Los Angeles Review of Books, The American Prospect, Salon and Chicago Review.

Read more here:
Book Review: Geo Maher's 'A World Without Police' On Abolishing The Police - NPR

[1.] I think the civil liability scheme imposed by Texas's SB 8 is likely unconstitutional: It's inconsistent with the abortion rights recognized in Planned Parenthood v. Casey (1992), and the "undue burden" defense in the statute is likely too narrow to save it. Moreover, I think such state "private attorney general" laws that basically allow any person to sue over alleged illegal conduct are unfair to defendants. Indeed, Justice Breyer's dissenting opinion, joined by Justice O'Connor, in Nike, Inc. v. Kasky (2003)a case involving a similar speech-based "private attorney general" lawsuit over supposed false advertisingstrikes me as quite plausible, and applicable here:

The delegation of state authority to private individuals authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused upon more purely economic harm.

That threat means a commercial speaker must take particular careconsiderably more care than the speaker's noncommercial opponentswhen speaking on public matters. A large organization's unqualified claim about the adequacy of working conditions, for example, could lead to liability, should a court conclude after hearing the evidence that enough exceptions exist to warrant qualificationeven if those exceptions were unknown (but perhaps should have been known) to the speaker. Uncertainty about how a court will view these, or other, statements, can easily chill a speaker's efforts to engage in public debateparticularly where a "false advertising" law, like California's law, imposes liability based upon negligence or without fault. At the least, they create concern that the commercial speaker engaging in public debate suffers a handicap that noncommercial opponents do not.

At the same time, it is difficult to see why California needs to permit such actions by private attorneys generalat least with respect to speech that is not "core" commercial speech but is entwined with, and directed toward, a more general public debate.

One can raise the same objection to using the "private attorney general" in the context of abortion; this would be a substantive reason why SB 8 is unconstitutionally overbroad (though note that Justice Breyer's opinion was just a dissent, from the Court's decision not to hear the case for procedural reasons).

[2.] But when it comes to the procedure for challenging state civil liability schemes (focusing here on schemes where lawsuits are brought by nongovernmental plaintiffs), the legal rule seems to me to be quite well-settled. If you think that some civil liability rule is unconstitutional, you can challenge itbut only as a defense when you're sued, not through a preenforcement challenge.

We see this routinely, for instance, in First Amendment civil liability cases. In New York Times v. Sullivan, the New York Times successfully challenged Alabama libel law rules, on the grounds that they allowed public officials to sue based on honest mistakes of fact (and not just knowing or reckless falsehoods)but only as a defense to a libel lawsuit, after the suit was filed. In Philadelphia Newspapers v. Hepps, the Philadelphia Enquirer successfully challenged a Pennsylvania statute that require libel defendants to bear the burden of proving their statements were true, but again only as a defense to a libel lawsuit. In Snyder v. Phelps, the Westboro Baptist Church people successfully argued that the Maryland "intentional infliction of emotional distress" tort unconstitutionally restricted speech on matters of private concern, but again only as a defense to a libel lawsuit. None of them could have filed a lawsuit up front in federal court seeking to declare the relevant tort law rules unconstitutional (whether on their face or as applied).

The same goes on today. A few months ago, I argued in the Oregon Supreme Court (on behalf of various academics, bloggers, and advocacy groups, as friends of the court) that the Oregon legal rule that denied certain First Amendment libel protection to "nonmedia" speakers was unconstitutional. But the defendant could raise that objection only as a defense to a libel lawsuit. A speaker in Oregon, or the two other states that follow this rule (Virginia and Wisconsin), can't launch a preenforcement challenge to the legal rule in federal court, at least until a particular plaintiff files a lawsuit or at least concretely threatens such a lawsuit.

Likewise, I have argued that, for instance, hostile environment harassment law sometimes violates the First Amendment. Some courts have agreed in some situations. But any such objections generally have to be litigated as defenses in employment law cases, not through a preenforcement challenge. To offer an oversimplified example (but one based on real life), imagine that a legislature passed a law saying, "Any employee who is offended by the display of a Confederate flag by any coworker may sue the employer for damages, and will prevail if a jury agrees that the display of the flag was severe or pervasive enough to create a hostile environment." That would be unconstitutional, I think; but I don't think an employer could challenge the law before it's enforced.

The same would be true as to lawsuits against gun manufacturers or gun stores over criminals' misuse of guns. A federal law, the Protection of Lawful Commerce in Arms Act, preempts most such lawsuits, at least so long as the guns were sold consistently with federal and state statutes. But if a gun manufacturer or gun store thinks that some state law civil cause of action (for negligence, nuisance, and the like) is preempted by the PLCAA, or for that matter by the Second Amendment, it generally can't go into federal court to get that cause of action struck down on those grounds. It would need to wait until it's sued, and raise the federal right as a defense (often in state court).

The conceptual legal point here is that, if I want to block the enforcement of some legal rule, I have to sue the enforcer. For criminal laws, that often means I can sue prosecutors for an injunction against their enforcing it.

But for civil liability, the plaintiff could be anyone. Until a particular plaintiff comes forward to sue, or at least to specifically threaten a lawsuit, there is no-one to sue. The eventual plaintiff is entitled to an opportunity to argue that the legal claim he is bringing is sound, but that eventual plaintiff is unknown. And one generally can't sue the judge who would eventually enforce the law, because our adversarial system of justice doesn't generally view the judge or the court as the adversary whom you can sue (at least until the judge has issued a specific decision that you are challenging, for instance through a mandamus action).

Now of course there are real costs to this approach to asserting federal constitutional and statutory rights: The threat of legal liability can create a powerful "chilling effect" on people's behavior, even before a lawsuit is filed. "[T]he value of a sword of Damocles is that it hangsnot that it drops." Moreover, this system makes it possible for the government to do what Texas did, and what other states have done in other contexts through "private attorney general" schemes: Shift enforcement of laws to private plaintiffs, and thus foreclose preenforcement challenges.

At the same time, for all its costs, our legal system has generally found the chilling effect of such civil liability to be bearable, given the opportunity (however imperfect it might be) to object to such liability once one is sued. Rightly or wrongly, this unavailability of preenforcement challenges to civil liability does appear to be the standard legal rule in our system. And while I do think that the private attorney general schemes, in which the plaintiff doesn't have to show any personal injury, are especially likely to be chilling, to my knowledge they can't be challenged through preenforcement challenges, either.

I may be mistaken; though I know a decent amount about such procedural rules (which are generally referred to under the rubric of "federal courts" rules, or just "Fed Courts," the common label for the class in which they are taught), this isn't my core area of expertise. If you can come up with precedents that would allow preenforcement challenges to such civil liability (again, civil liability in cases brought by nongovernmental actors), I would love to hear about it and perhaps use it. But that's my general sense of the matter.

Go here to read the rest:
Challenging Unconstitutional Civil Liability Schemes, as to Abortion, Speech, Guns, Etc. - Reason