Daily Archives: October 8, 2022

Most of the complaints about Musk are meritless and tell us more about the cluelessness or hypocrisy of his critics than his alleged perfidy. At the end of the day, the case against him boils down to the criticism that he will allow too much unfettered speech on his social media platform, a plaint that would have made little sense to anyone a decade or so ago when the balance of center-left opinion was still robustly free speech.

As it is, a libertarian-ish business leader is saying he wants an important platform for political and social advocacy and argument to provide the widest possible latitude for varied, clashing views, and the reaction of a large segment of commentators is, This man must be stopped.

Musk cant catch a break. Bill Clintons former Labor Secretary Robert Reich tweeted, When multi-billionaires take control of our most vital platforms for communication, its not a win for free speech. Its a win for oligarchy.

As they say on Twitter, Whos going to tell him?

Successful social media companies arent typically owned and run by low-income individuals (at least not by the time they are out of their garages). The co-founder and former CEO of Twitter who was in place when Reich was much less alarmed by the direction of the platform, Jack Dorsey, is worth $7 billion by some estimates.

Although hes taken a beating lately, Mark Zuckerberg still has a net worth of something like $50 billion.

Suffice it to say that Musk is not single-handedly bringing income inequality to Americas social-media companies.

At the end of the day, the biggest problem that Musks critics have with him is that he is a threat to their de facto control of Twitter. Ben Collins of NBC tweeted that Twitter will change dramatically if Musk owns it, and if the takeover gets done early enough, based on the people hes aligned with, yes, it would actually affect [the] midterms.

The worry that Twitters policies under Musk might affect the upcoming election is an implicit acknowledgment that its current policies have political consequences, and they clearly do otherwise, it wouldnt be that so many Democrats and progressives happen to be absolutely desperate to protect the Twitter status quo.

Collins warned that if Musk takes Twitter private the rule-making could become capricious. Indeed, Musk can elevate any idea or person he wants through recommendations and UX [user experience] choices and there will be no oversight on this as a private company.

One wonders what has supposedly happened prior to this point? Was there accountability when Twitter tried to squelch a totally legitimate news story about Hunter Bidens laptop prior to the 2020 election? Has anyone blown the whistle as the platform forbids one side of the debate on trans issues from using its preferred terms and expressing its deeply held, sincere beliefs? Is anyone keeping it from suspending the account of a conservative satirical publication, or cracking down on an account devoted simply to reposting already public videos?

The worst case is that these decisions are made explicitly to disadvantage conservatives. The best case is that decisions about what constitutes harassment and misinformation and the like inevitably involve subjective value judgments and politics naturally enters into them.

It would be easier to believe that neutral criteria were used, say, to kick Marjorie Taylor Greene off the platform, if a member of the Squad were getting dinged, too. Itd be easier to take the flagging of conservatives for spreading misinformation or alleged misinformation, if, for instance, Stacey Abrams and her supporters were whistled for running down the Georgia election system with various provable distortions.

Twitter is run as if a workforce of hyper-online progressive employees overwhelmingly living and working in a deeply blue jurisdiction is calling the shots, and, of course, so it is.

Another count against Musk is that these employees hate him. But so what? If we all agree that Twitter is an important public forum, its rules shouldnt be set by a group of people who have a vested interest in vindicating their own ideological beliefs and fashionable obsessions.

The underlying belief of those who think Musk is about to ruin Twitter and blight the American political conversation is that Donald Trump wouldnt have won the 2016 presidential election if it werent for Russian bots and right-wing purveyors of misinformation running riot on social media. If these were all repressed, the electoral system would be restored to its senses meaning back to Democratic control.

The effect of the 2016 Russian information operation was always exaggerated, though, and the attempt to squash misinformation on social media has veered into misbegotten campaigns against entirely reasonable points of view that baffle or outrage progressive America (the idea that Covid might have leaked from a lab got this treatment for a while).

Musks classical-liberal view that false or unwelcome speech is best combated by more speech once was a matter of consensus. That it feels radical now and is so bitterly contested is a symptom of how the Overton window has shifted toward speech suppression in the name of content moderation.

By the way, allowing Trump back on Twitter, as Musk is expected to do, wouldnt be a partisan power play. First of all, its significance would probably be exaggerated. Trump getting kicked off Twitter diminished his influence over the hour-by-hour political and media conversation, but its not as though hes been bereft without it hes retained his hold on the GOP, the real measure of his power, just fine.

Also, his Twitter return would hardly be an unalloyed benefit to him or the GOP. There are a lot of people in the Republican Party who would prefer to look past his poisonous musings and its a little harder to do that if hes back Twitter. (His own platform, Truth Social, doesnt have nearly the sway.) And Democrats, who want Trump to be as prominent as possible as a foil for Biden and others, should welcome a steady diet of Trump tweets again.

There is no doubt that Musk will encounter significant challenges to implementing his vision. Lines have to be drawn somewhere and hell have to guard against being as arbitrary as the prior regime just in a different way. But no one should doubt that he is deeply anti-bot (hes complained bitterly about their prevalence and tried to use them as a way out of the deal), and hopefully he will find more ways to allow people to choose for themselves what they want to see or not, without Sanhedrin-like rulings on deeply contentious political and moral questions.

Obviously, not all of this will be to everyones liking, especially to progressives who have gotten used to working their will with Twitter. But the social media platform is, ultimately, a private business that can set any rules it wants. If a more free-speech-oriented Twitter is hateful to them, they can take the advice they threw at conservatives disenchanted with the platform in recent years and go out and, build their own Twitter.

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Opinion | Liberals Currently Control Twitter. That Needs to Change. - POLITICO

A Liberal MP wants a comprehensive review of his governments response to the COVID-19 pandemic, as more accountability and transparency are needed to answer to Canadians when it comes to implementing measures that affect the whole country.

We need a greater level of accountability and transparency. And so in this case, we need the health minister ideally to identify the key drivers of pandemic risks, describe how Canadian activities contribute to that risk, and then put in place measures to mitigate that risk, said Nathaniel Erskine-Smith in an interview with the National Post, reported on Oct. 7.

Erskine-Smith said he doesnt have any specific failure in mind that he wants the review to focus on, but would rather leave it to experts with the right experience and knowledge to judge the governments response.

In a perfect world, wed be striking a committee of people who are much smarter than me and with relevant expertise to answer that very question, he said.

Former Health Minister Patty Hajdu suggested last April that a full investigation into Canadas response will be required at the appropriate time. To date, the Liberal cabinet has yet to launch a task force with specific timelines and plans on how the issue will be discussed.

The Epoch Times reached out to incumbent Health Minister Jean-Yves Ducloss office for comment, but staff were unable to respond by publication time.

Erskine-Smith said in the interview that the federal government should take the opportunity to learn from COVID so that the country is better prepared for future pandemics.

Learning the lessons to inform those best efforts going forward is, I think, where the greatest value is, he said.

In June, the Liberal MP put forward a private members bill calling for a comprehensive review of the federal response to the pandemic.

Specifically, the bill requires Duclos to set up an advisory committee to review the pandemic response in order to reduce the risks associated with future pandemics and inform a pandemic prevention and preparedness plan. It also requires the health minister to consult other ministers in creating the new plan.

Finally, it amends the Department of Health Act to provide that the Minister of Health must appoint a national pandemic prevention and preparedness coordinator from among the officials of the Public Health Agency of Canada to coordinate the activities under the Pandemic Prevention and Preparedness Act, the bill said.

The bill completed its first reading on June 17, with a second reading pending. According to theParliament of Canadas website, the bill has been placed in the Order of Precedence since June 20.

There is a worry that we dont learn the appropriate lessons, and one of those lessons has to be that we have stronger public accountability for all future governments, whatever political stripe, Erskine-Smith said.

This isnt the first time the Liberal backbencher voiced his opinion about his partys approach in handling the pandemic.

In a speech on Feb. 21, Erskine-Smith said he had concerns about the invocation of the Emergencies Act by his government and the extension of its measures for 30 days.

Im skeptical that the strict legal test was met for the Acts invocation, and Im not convinced that the emergency measures should continue to exist beyond today, he said.

Prime Minister Justin Trudeau invoked the Emergencies Act on Feb. 14, using it as a means to quash the protests against COVID-19 mandates and restrictions by truckers and their supporters in Ottawa and across the country.

In May, Erskine-Smith criticized his partys travel restrictions, saying the vaccine mandates were no longer justified.

On Sept. 26, the government announced it was ending federal COVID-19 entry rules, and the use of ArriveCan became optional on Oct. 1. The decision was made based on the latest evidence, available data, operational considerations, and the epidemiological situation, both in Canada and internationally, a government news release said.

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Isaac Teo is an Epoch Times reporter based in Toronto.

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Liberal MP Calls for 'Comprehensive Review' of His Government's Response to COVID-19 Pandemic - The Epoch Times

The first argument of 2022 in Sackett v. EPA also marked Justice Ketanji Brown Jacksons first argument as a newly appointed justice. After several of her peers on the Court completed introductory questions, Justice Jackson chimed in by piggybacking on top of the previous question asked by Justice Kagan. Justice Jackson began by asking about Congress intention with the Clean Water Act:

isnt the issue what Congress would have intended with respect to adjacency and there was a regulation that defined adjacency to include neighboring? And as far as I know, Congress used the term adjacency and didnt adjust it to try to make clear the touching requirement that you say was intended by the term.

After the attorney Mr. Schiff conceded this point, Justice Jackson followed up with:

Well, let me let me let me try to bring some enlightenment to it by asking it this way. You say the question is which wetlands are covered, which I agree with, but I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical, and biological integrity of the nations waters?

Justice Thomas actually began the questioning at oral argument as has typically been the case since last term. Justice Thomas began by helping Damien Schiff set the groundwork for the initial argument by engaging in the following back and forth:

JUSTICE THOMAS: Mr. Schiff, can can intrastate, purely intrastate, navigable bodies of water be waters of the United States?

SCHIFF: Yes, Justice Thomas.

JUSTICE THOMAS: And how is that, if its purely intrastate?

SCHIFF: If as a statutory matter, if that intrastate navigable water connects with some form of interstate transportation such that there could be a continuous channel of interstate commerce, then that water could be regulated.

While Justice Thomas began laying the foundation for questioning Mr. Schiff, the three justices on the left of the Court were all more involved in the arguments for the petitioners side than Justice Thomas was in terms of words spoken.

Perhaps more importantly, all three liberal justices were much more engaged during the petitioners turn than they were during the respondents argument. More engagement during one sides argument is often (but not always) a sign that the justices will vote against that side.

Since some of the more conservative justices spoke more during Brian Fletchers argument for the respondent, we may get a split decision for the first argument of the term.

The first figure tracks the words spoken during the entire span of oral arguments in Sackett.

While Justice Thomas only spoke sparsely, the rest of the justices engaged in the arguments more vigorously. The top four most active speaking justices in Sackett were the four female justices on the Court. This is also the first time four female justices have sat together on the Court. Quite a watershed moment.

The most active speakers on the Court during arguments in Sackett were as follows:

While the three more liberal justices spoke more during the petitioners argument, Justice Barrett spoke about evenly to both the petitioner and the respondents attorney.

Moving on to the rest of the week, Justice Jackson had the most words in an argument in the Merrill case with 2,269 words. It is very rare for a justice to speak over 2,000 words in an argument, even if there is extra time given for that argument. The next most active speaking justice in Merrill was Justice Kagan at 1,436 words.

Justice Jackson spoke more than any other justice in three of the four arguments this past week: Arellano, Sackett, and Merrill. She ended the week with almost a third more words spoken than any other justice at 4,568 words. The graph below shows the breakdowns for all the justices across the week.

Last Term

Last terms first argument was in Mississippi v. Tennessee. There was less engagement from the justices on the whole in that argument than in Sackett. In Sackett two justices, Justices Sotomayor and Barrett, each spoke over 1,000 words. No justice spoke over 1,000 words in last terms first argument. The justice that spoke the most during that argument was Chief Justice Roberts with 920 words and the second most came from Justice Gorsuch with 736 words.

The justices were even less talkative during the second oral argument last term which was Wooden v. United States. There, Justice Alito spoke the most with 751 words followed by Justice Kagan with 717 words.

Other Justices Firsts

Going back over the speaking statistics for the two justices appointed prior to Justice Jackson Justices Barrett and Gorsuch Justice Jackson appears to be much more talkative out of the gates.

Justice Barrett was confirmed in late October of 2020 and so she didnt sit for oral arguments until the November sitting. Her first oral argument was in United States Fish and Wildlife v. Sierra Club. Barrett was more reticent than Justice Jackson in her first oral argument as she spoke 490 words. The following graph has the speaking statistics for all the justices at that argument.

Per the statistics the justices appeared generally less engaged in these arguments than they did in Sackett. That said, Justice Breyer was far ahead of the pack in the US Fish arguments followed by Justice Kagan. Justice Gorsuch who spoke the third most during those arguments spoke over 150 fewer words than Justice Breyer.

Justice Kavanaugh was confirmed to the Court on October 6, 2018. He also did not start at the beginning of the term but took part in the last several arguments of the October sitting. Justice Kavanaughs first oral argument was in Stokeling v. United States. In 2018 as this was pre-pandemic Thomas was not generally participatory at oral arguments and he did not ask any questions in Stokeling. Justice Breyer did not actively participate either. This left seven justices to engage in oral arguments.

The justices still did not speak as much in Stokeling as they did in Sackett. Even so, Kavanaugh was the fifth most talkative justice during those arguments. In Stokeling, the justices word counts were as follows:

Kavanaugh only said 345 words during those arguments. This was fewer than Justices Barrett and Jackson in their first oral arguments. All other justices speaking statistics in Stokeling were dwarfed by Justice Kagans 1,067 words. Justice Alito was the second most active justice in the Stokeling arguments with 680 words.

Will Justice Jackson continue with her active participation during oral arguments? Will the female justices continue to ask questions as frequently especially the liberal justices? Will the speaking statistics correlate with the justices votes on the merits? We are only four oral arguments into the 2022 Term and there are lots of questions like these that will take weeks or months to answer.

Read more at Empirical SCOTUS.

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam atadam@feldmannet.com.Find him on Twitter:@AdamSFeldman.

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Liberal Justices Take The Reins In First Week Of Arguments - Above the Law