Category Archives: Federalist

With a new policy intended to significantly reduce disease and death caused by menthol cigarettes as well as all flavored cigars, the U.S. Food and Drug Administration announced last week they will take steps to ban such products over the next year.

While in office, President Trump banned all flavored vapes and President Biden is picking up exactly where his predecessor left off. This shouldnt be surprising, however, as the only bipartisan idea in Washington today is that the governments role in the everyday life of Americans should be expanded.

There is no better example of this than the police killing of Eric Garner in Staten Island, New York. Garner was unarmed, and his only crime was selling banned cigarettes. When the officers went to arrest Garner, one of them used a chokehold which was against New York Police Departmetn rules for a prolonged period. This chokehold led to Garner losing consciousness, and dying about an hour later. All of this over a few loose cigarettes.

The truth is that, despite its good intentions, this policy could not be more misguided.

First and foremost, to ban menthol cigarettes and flavored cigars would be to violate fundamental principles of individual liberty, as the government should have an extremely limited role in banning consumer goods.The role of government in a free society is to protect ones rights from being violated by his or her fellow citizens, not to ensure that individuals never make adverse personal decisions.

Smoking menthol cigarettes or flavored cigars may be a poor decision I personally believe that it is but it is certainly not infringing on anybody elses rights when one freely decides to do so. Furthermore, as it is in this case as well, the standard being applied when advocating for government prohibition of certain products is often unintelligible.

It is true that nearly 500,000 people die in the United States every year due to smoking. If one believes, however, that this is a legitimate basis for the government to ban certain types of smoking, then it may be important to also note that 300,000 Americans die due to obesity every year, as do almost 100,000 people due to alcohol.

Should these figures be a pretext for the government to ban fatty foods, sugary drinks, and all alcohol as well? Most people even those celebrating the FDAs announcement would say no. But this fact just demonstrates how non-existent a standard is for the consumer goods that the government decides to ban in the interest of the health of the general public.

This is not the first time the U.S. government has decided to ban substances they deemed to be harmful. In the early 20th century, when the prohibition of alcohol was implemented, many of the same arguments we are now hearing to ban menthol cigarettes and flavored cigars were made. They were just as misguided then as they are now.

Prohibition was supposed to reduce alcohol consumption; it didnt.

Prohibition was supposed to reduce crime; it increased it.

Prohibition was supposed to make people healthier; instead, it led them to use even more harmful drugs.

A similar story unfolded in the aftermath of the war on drugs during the late 1900s. It did not lead to its intended goal a safer world where Americans no longer used drugs but to a world where a black market run by cartels made everyone less safe. The Cato Institute notes it is not that drug use leads to violence, but that violence in drug markets may instead result from the institutional context created by prohibition.

About prohibiting menthol cigarettes and flavored cigars, it is foolish to believe that it would result in anything different than the previous attempts. This will not reduce the number of people smoking; rather, it will simply increase the number of people illegally smoking. Increasing the number of illegal activities as this regulation does will inevitably lead to more unnecessary interactions between civilians and the police.

While police have an extraordinarily hard job, and generally do well at it, the sad truth is that the more police-civilian interactions there are, the more likely it is that life will be lost without reason. The Garner story painfully illustrates this reality.

While the new regulation does not mandate criminal enforcement on black market sales, the American Civil Liberties Union correctly notes that such a ban will trigger criminal penalties. Even though the FDA claims this ban will help to save lives in minority communities, it is precisely those communities that would be disproportionately harmed by more unnecessary drug laws. The effects of the war on drugs on minority communities clearly demonstrate just that.

While advocates of prohibition assure us that it will lead to a cleaner, safer, and healthier society, the truth is much different.

Just because one believes that government-mandated prohibitions on substances are imprudent does not mean he does not recognize that there is a problem at hand. It is absolutely true that far too many Americans smoke, drink in excess, and eat terribly unhealthily. Yet there are paths outside of government that we can take to create a better society.

The only way to reduce the number of people smoking is by demonstrating that there is a better option. Its up to us to show that the costs of smoking far outweigh the benefits. No government regulation can do this. It is for this reason that various studies in the European Union, Canada, and the state of Massachusetts all find that the impact of menthol cigarette bans has been minimal.

Rather, it is up to local communities, schools, parents, houses of worship, and activist groups to turn the tide of public opinion against smoking. Tremendous ground has already been made as the percentage of people who smoke in a given week shrunk from 41 percent to 15 percent between 1954 and 2019 but that progress happened because individuals decided that it was better to avoid smoking.

In a study on the reasons that smokers quit, just 0.5 percent of people cited smoking bans as the reason, whereas more than 75 percent cited health concerns. The truth is that the best way to prevent smoking is by convincing enough of our fellow citizens of its harms.

Moving forward, it will be imperative that Americans begin to understand government action is not the only way to address real, substantive problems in our communities. True, genuine progress wont ever come about through government impositions, but through persuading hearts and minds. Ultimately, any other way of causing a change of behavior is doomed to failure.

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Why The FDA's Ban On Menthol Cigarettes Is A Bad Idea Even If You Don't - The Federalist

Parents in a Dallas-area school district decisively elected two candidates Saturday dedicated to pushing back against critical race theory indoctrination in classrooms.

The controversial race for two seats on the Carroll Independent School District school board, located primarily in the Dallas suburb of Southlake, focused on the districts embrace of critical race theory after videos went viral of two students who sang the n-word with rap lyrics in 2018. Legacy media, leftist administration officials and vocal left-wing parents demanded the schools adopt measures to rid the district of institutional racism in response, as opposed to pleas students be shielded from slur-laced rap music.

Three years later after the videos went viral provoking a radical embrace of state-sanctioned racism masquerading as anti-racism, parents elected two new school board members to reclaim their local schools from the left-wing indoctrination.

Cameron Cam Bryan, a civil engineer and father of four, captured one seat with 68 percent of the vote.Hannah Smith, an attorney and mother of four, won the other seat up for grabs with 69 percent of the vote.

Southlake, we did it! Smith told her supporters at a victory party Saturday, according to The Texan. Im so grateful to the voters for their confidence in me. The goodness of the people of Southlake is on display for the whole country to see.

Bryan declared the decisive wins a mandate to restore the districts focus on academic excellence, not leftist politics.

They cant argue with us, Bryan said, reported by The Texan. Hannah and I will be leaders, and weve got your back.

The two new school board members will take their seats on May 12. Their local triumph marks the early stages of an escalating movement to reclaim K-12 schools infected by the racism of critical race theory as a new cultural Tea Party brewing more than 10 years after grassroots activists disillusioned by the Obama administration gave rise to the first.

Parents across the country are beginning to organize at the local level after progressives have taken control of municipal institutions to implement their woketopian agenda that redefines the United States as a racist empire rooted in white supremacy.

Parents Defending Education, a new group to foster similar local organization and political action, formed earlier this year to rid K-12 education of leftist critical race theory.

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The Federalist Parents Vote To Stop Critical Race Insanity In Texas's Top School District Their local - The Federalist

Republican Rep. Mark Green, R-Tenn, introduced a bill Wednesday that would prohibit critical race theory from being taught at U.S. military service academies.

Green, an Iraq war veteran and West Point graduate, called critical race theory is a Marxist ideology created to tear American institutions down.

Critical Race Theory is based on a massive and purposeful misunderstanding of the American founding, American history, and America as it exists today, he said. It teaches Americans and members of the Armed Services to judge one another by the color of their skin instead of by the content of their character. America should never go back to this kind of thinking. A curriculum based on Critical Race Theory seeks to divide Americans instead of unite them.

In April, the Washington Free Beacon reported on anti-racist training taking place at West Point the prestigious federal academy located in West Point, New York. The institution announced a diversity and inclusion plan through the year 2025 to create an environment that appeals to the aspirations of Americans younger generation.

Green said he is concerned military service academies are focused on training woke social justice warriors, rather than soldiers and future combat leaders.

This ongoing assault on our military by the radical left is damaging to our readiness and our competitive advantage, he said. The United States military service academies are designed to train leaders and warriors for combatmen and women of every race, creed, and religion. Critical Race Theorys divisiveness will destroy the unit cohesion necessary to win in combat and defend this nation.

The U.S. Navy recently updated its suggested readings in the Professional Reading Program. Several of the suggested texts pertain to critical race theory, including Ibram X. Kendis How to Be an Antiracist and Michelle Alexanders The New Jim Crow.

State legislatures have introduced or passed measures to ban critical race theory and limit its applicability in state education curriculums. Tennessees House passed a bill to ban critical race theory in schools on Wednesday. Idaho did not fully ban critical race theory in April, but the measure signed by Republican Gov. Brad Little bans teachers making students affirm, adopt or adhere to any principles that say a persons race, ethnicity, sex, or religion is responsible for actions of their identity group. The bill does not ban teacher trainings.

Photo DOD photo by D. Myles Cullen/Released

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Congressman Introduces Bill Banning Critical Race Theory In Military Service Academies - The Federalist

In a press conference Monday, New York Democrat Gov. Andrew Cuomo threatened that New Yorkers who do not receive the COVID-19 vaccine will wind up killing your grandmother. The governor is under federal investigation for doing just that.

My argument is, yeah, maybe youll be fine. And by the way, you dont know that either. Weve had a lot of young people who have died, Cuomo said. Maybe you will get a long-haul syndrome that were not really sure what it is yet, but a lingering consequence of COVID. Or maybe you go home and kiss your grandmother and wind up killing your grandma. So, show some civic responsibility.

While the New York governor is attempting to communicate to residents that they may kill senior citizens if they are not vaccinated, Cuomo is not one to talk about protecting the elderly.

Cuomo is the target of a federal investigation for sending COVID-19 positive seniors back to nursing homes and covering up the number of patients who died as a result of his policy. The New York Times reported that Cuomos top aides tried to conceal the number of COVID-positive patients sent to nursing homes, as well as the resulting death toll.

Even as recently as a few months ago, Cuomos office was reporting almost 6,500 nursing home deaths from COVID-19 for much of the pandemic. New York Times reporting suggests that in reality, 9,000 COVID-positive patients were discharged into nursing homes, and the projected nursing home death toll could be closer to 15,000.

Meanwhile, the governor has been accused of multiple sexual harassment allegations. Cuomo has said he will not step down after 10 different women, including aides, have accused him of being sexually inappropriate. Im not going to resign, Cuomo told the public in March, additionally noting he was not elected by the politicians but by the people.

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'Grandma Killer' Andrew Cuomo Says Unvaccinated New Yorkers Will 'Wind Up Killing Your Grandma' - The Federalist

Amid the ongoing humanitarian crisis at the Southern border, members of various gangs, including the violent criminal gang MS-13, are crossing into the U.S. illegally in migrant caravans.

On Friday, U.S. Border Patrol Agent Chief Matthew Hudak said border officials apprehended five gang members in Laredo, Texas.

5 gang members in 7 days! #Laredo Sector #USBP agents arrested a total of 5 gang members in the last week, including an #ms13 & two 18th Street gang members, he tweeted. They attempt to evade arrest by exploiting the influx of migrants attempting to enter our country. #bordersecurity.

One of the individuals arrested is a member of MS-13, and two others are members of the 18th Street gang, a criminal drug trafficking group with as many as 50,000 members in Mexico and Central America.

A month ago, California Border Patrol agents arrested an MS-13 gang member from El Salvador. The 28-year-old crossed the border illegally with five other men. An MS-13 gang member received a life sentence without parole in Texas on Monday for the murder of a 16-year-old in 2016.

172,000 migrants crossed the border in March and 5,700 unaccompanied minors were found in Border Patrol stations at the height of the surge in March. Vice President Kamala Harris announced in April that the U.S. will send an additional $310 million to Central America, as migrants continually flood the border.

Mexican President Andrs Manuel Lpez Obrador blamed Biden for the surge, noting that the president is incentivizing migrants with immigration policies.

Expectations were created that with the government of President Biden there would be a better treatment of migrants. And this has caused Central American migrants, and also from our country, wanting to cross the border thinking that it is easier to do so, Obrador said at a press conference.

Obradors characterization is contrary to that of Department of Homeland Security Secretary Alejandro Mayorkas, who blamed the Trump administration for the surge after Biden repealed Trumps Remain in Mexico.

James Carafano, a national security expert at The Heritage Foundation, told The Federalist that criminals will look for every way possible to exploit Bidens open border policies.

There is a synergistic relationship between the cartels and the transnational gangs who often cooperate collaborate on a range of criminal activity. Gang presence in the U.S is particularly important as gangs build a network of nodes that facilitate criminal activity throughout the U.S. and Canada, he said. Illegal immigrants are often the target victim of gang activity, making the open border policies of the administration a double human rights catastrophe.

Partnered with American University, the Department of Justice released a report in October 2020 outlining its efforts to root out MS-13 gang members. The DOJ noted that it has prosecuted over 700 members.

Given the Biden administrations lack of border protection, it remains to be seen how many more will need to be brought to justice after crossing the border.

Read more here:

MS-13 Gang Members Are Exploiting The Border Crisis To Sneak Into The United States - The Federalist

In a monologue on The Daily Show Monday, host Trevor Noah said Americans have failed at something so easily achievable by not receiving the COVID-19 vaccine, and claimed the media should not be covering cases of adverse reactions to the vaccine because it does not fit the preferred narrative.

You know honestly, in these divided times, its just great to see all Americans coming together, Noah said. To fail at something so easily achievable. Thanks to the many people who refuse to take a life-saving vaccine, experts now think that coronavirus is basically going to become one of those anti-virus pop-ups.

Noah blamed anti-vaxxers, but also journalists for reporting on vaccine side effects.

The media loves running stories about the few people who are having adverse reactions to the vaccine. Oh man got a vaccine, now his foot is sore. Oh, woman got a vaccine, now she forgot its Thursday. Because even though those cases are a tiny minority, those are the stories that people want to hear the most, right? he said.

It is unclear why Noah would object to the media covering casess of adverse reactions to the COVID-19 vaccine. As reported by the U.S. Centers for Disease Control and Prevention last Friday, there have been 64 adverse reaction cases to the Johnson & Johnson vaccine. More than 4,000 adverse cases were reported back in January upon people receiving the Pfizer-BioNTech vaccine.

This does not mean people should not receive the vaccine. The efficacy rates are 90 percent or more, but like all health care decisions, it is a personal one. It would seem to be disingenuous if adverse reaction cases were concealed to the American public.

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Trevor Noah: Media Should Not Cover Adverse Vaccine Reactions Because They Don't Fit The Narrative - The Federalist

On Monday, the Supreme Court agreed to hear an appeal by two petitioners challenging New Yorks denial of their applications for concealed-carry firearm licenses. The case, New York State Rifle & Pistol Association, Inc. v. Corlett, represents the first time in more than a decade that the high court will hear a Second Amendment case. Heres your lawsplainer for the caseand Second Amendment jurisprudence.

The Second Amendment provides: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. In 2008, in District of Columbia v. Heller, the Supreme Court held the Second Amendment protects the individual right to possess and carry weapons in case of confrontation. The Heller decision further held that an individuals right exists regardless of his service in a militia, reasoning that the militia clause served as a prefatory clause, explaining the purpose of the protection contained in the operative clause, but not limiting the individual right.

The court in Heller reached these conclusions after a detailed examination of the origins of the Second Amendment: Heller explored the rights origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, and that by 1765, [William] Blackstone was able to assert that the right to keep and bear arms was one of the fundamental rights of Englishmen.

American colonists shared that view, the Supreme Court concluded, noting that King George IIIs attempt to disarm the colonists in the 1760s and 1770s provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A thorough examination of the ratification debates and early history of our country confirmed for the Supreme Court that the right to keep and bear arms constitutes a fundamental individual right.

Two years after the Supreme Court held in Heller that the Second Amendment guarantees an individual right to keep and bear arms, the high court in McDonald v. City of Chicagoheld that right is fully applicable to the States and state subdivisions, such as counties and cities.

To understand the import of McDonald, one must remember that the Bill of Rights amended the federal Constitution and when those amendments were ratified, they only protected individuals from infringements by the federal governmentand more specifically Congress. However, after the Civil War, ratification of the Fourteenth Amendment fundamentally altered our countrys federal system, by providing, among other things, that a state may not abridge the privileges or immunities of citizens of the United States or deprive any person of life, liberty, or property, without due process of law.

The Supreme Court would later hold that the due process clause of the Fourteenth Amendment incorporated individual rights contained in the Bill of Rights, protecting citizens from state actors violation of those rights. In other words, under the high courts view, the Fourteenth Amendment provided that a state will not deprive any person of life, liberty, or property, without due process of law, nor will a state deny any person of his right to freedom of speech, or free exercise of religion, or to be free from unreasonable searches and seizures.

This incorporation doctrine, however, was selective, with the Supreme Court incorporating into the Fourteenth Amendment only those rights contained in the Bill of Rights it considered fundamental to liberty and justice. In McDonald, then, the Supreme Court considered the question of whether the right to keep and bear arms was fundamental to liberty and justice and thus incorporated into the Fourteenth Amendment. The same history the court considered in Heller led a majority of the justices to conclude the individual right to keep and bear arms constituted a fundamental right on which states and state subdivisions must not infringe.

While Heller and McDonald were landmark Second Amendment decisionsand the first cases the Supreme Court decided on the right to keep and bear arms since 1939the issues addressed in both cases were narrow. Both cases considered the limited question of whether laws banning the possession of handguns, and regulating the possession of rifles and shotguns in a persons home, violated the Second Amendment. In both cases, the Supreme Court declared the laws unconstitutional.

Following Heller and McDonald, the Supreme Court has rejected numerous challenges to other laws affecting the right to bear keep and bear arms, taking a nearly universal hands-off approach on the Second Amendment. The rare exception came in 2016, when the court, without a hearing and in an unsigned two-page order, held in Caetano v. Massachusetts that stun guns were protected under the Second Amendment. Unsurprisingly, that decision added little clarity to Second Amendment jurisprudence.

Since then, the lower federal courts have remained divided over the application of the Second Amendment to a variety of laws regulating firearms. Perhaps the single most important unresolved Second Amendment question remaining after Heller and McDonald, as the petitioners in the New York State Rifle case put it, is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home.

That question remained unanswered by the Supreme Court in Heller and McDonald because both of those cases involved challenges to bans of handguns (and regulations of rifles and firearms) in the home. Following Heller and McDonald, the D.C. Circuit and the Seventh Circuit both held that the Second Amendment also guarantees an individual right to carry handguns outside the home for self-defense. Conversely, the First, Second, Third, Fourth, and Ninth Circuits held that Heller and McDonald did not extend Second Amendment rights beyond the threshold.

This split in the circuits, or disagreement among the 12 appellate courts, presented the Supreme Court the perfect vehicle for clarifying Second Amendment jurisprudence. (A thirteenth appellate court, the Federal Circuit, also exists but it hears appeals related to specific subject matters, such as patents.)

Yet, just under a year ago, the Supreme Court refused to hear a case challenging a New Jersey law that enacted a near-total prohibition on carrying a firearm in public, by limiting the granting of handgun permits to citizens who could establish a justifiable need to carry a handgun. A private citizen could satisfy this justifiable need requirement only by establishing in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicants life that cannot be avoided by means other than by issuance of a permit to carry a handgun.

Justice Clarence Thomas issued a scathing dissent from the denial of certiorari in the New Jersey case, which Justice Brett Kavanaugh joined. This case gives us the opportunity to provide guidance on the proper approach for evaluating Second Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a square Circuit split on the constitutionality of justifiable-need restrictions on that right, Thomas explained.

While there is no way to know why the justices turned down the petitions for review last year, including in the New Jersey case, legal commentators have speculated that some conservative justices may not have been confident that Chief Justice John Roberts would provide a fifth vote to expand gun rights. However, given Robertss penchant for issuing concurrences in controversial cases, and thereby creating fractured decisions lacking in precedential value, it seems more likely the justices saw no value in issuing plurality opinions that would only further muddy the law.

No matter the reason the Supreme Court shrunk from its duty to say what the law is for the Second Amendment, now that Justice Amy Coney Barrett has replaced Justice Ruth Bader Ginsburg, the court has agreed to hear the appeal in New York State Rifle & Pistol Association, Inc. v. Corlett.

In New York State Rifle, Robert Nash and Brandon Koch challenged New Yorks denial of their applications to obtain a license to carry a concealed handgun. In New York, citizens are banned entirely from the open carry of handguns, while permitting citizens to carry a concealed handgun upon issuance of a license. However, members of the general public, such as Nash and Koch, may only be granted a license under New York law when proper cause exists.

Proper cause is not defined by statute, but state courts have ruled that an applicant seeking a license to carry a handgun for self-defense must demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession. Living in a high-crime area is insufficient.

The state denied Nash and Koch permits to carry concealed handguns, concluding they failed to establish proper cause. Nash and Koch sued in a federal district court to challenge the law, claiming requiring them to establish proper cause to arm themselves in public violated their Second Amendment right to keep and bear arms in self-defense.

The Second Circuit Court of Appeals, which hears appeals from federal district courts located in New York, rejected Nash and Kochs argument, holding it was foreclosed by the circuits earlier decision in Kachalsky v. County of Westchester. In Kachalsky, the Second Circuit upheld New Yorks proper cause regulation. In doing so, the federal appellate court initially noted that while we know from [Heller and McDonald] that Second Amendment guarantees are at their zenith within the home, [w]hat we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a government.

The Second Circuit in Kachalsky then considered the latter question and concluded that the Second Amendment has vastly diminished force outside the home. This diminished force, the court believed, meant that New York could constitutionally limit[ed] handgun possession in public to those who show a special need for self-protection.In New York State Rifle, the Second Circuit did not elaborate further on the reasoning of Kachalsky, instead rejecting Nash and Kochs Second Amendment arguments as failing under the courts precedent.

In granting certiorari earlier this week, the Supreme Court will finally address the constitutionality of New Yorks law. However, in granting review of the case, the Supreme Court narrowed the issue for review to whether the States denial of petitioners applications for concealed-carry licenses for self-defense violated the Second Amendment. This question differed from that which the petitioners had sought review, namely whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

Both framings of the issue, however, squarely present the Supreme Court with the question of whether Heller and McDonalds guarantee of an individual right to keep and bear arms is limited to the home. While several circuit courts have read Heller and McDonald as limited to the possession of guns within a home, Justice Thomas recent dissent (joined by Justice Kavanaugh) from the denial of certiorari in a gun case exposed the folly of such a view:

As this Court explained in Heller, at the time of the founding, as now, to bear meant to carry. When used with arms, . . . the term has a meaning that refers to carrying for a particular purposeconfrontation. Thus, the right to bear arms refers to the right to wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person. The most natural reading of this definition encompasses public carry. Confrontations, of course, often occur outside the home. See, e.g., Moore, supra, at 937 (noting that most murders occur outside the home in Chicago). Thus, the right to carry arms for self-defense inherently includes the right to carry in public.

This conclusion not only flows from the definition of bear Arms but also from the natural use of the language in the text. As I have stated before, it is extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. The meaning of the term bear Arms is even more evident when read in the context of the phrase right . . . to keep and bear Arms. To speak of bearing arms solely within ones home . . . would conflate bearing with keeping, in derogation of [Hellers] holding that the verbs codified distinct rights. In short, it would take serious linguistic gymnasticsand a repudiation of this Courts decision in Hellerto claim bear Arms does not extend the Second Amendment beyond the home.

Justice Thomas added to the above reasoning an analysis of cases and treatises from England, the founding era, and the antebellum period, all of which confirm that the right to bear arms includes the right to carry in public.

Of course, several justices are nonetheless likely to resort to linguistic gymnastics to avoid what they perceive as bad (or unpopular) policy. But will five justices stand firm? We will know next year.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame.The views expressed here are those of Cleveland in her private capacity.

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What's In The Big Gun Rights Case The Supreme Court Just Took - The Federalist

On Friday morning, lawyers for Twitter will square off against attorneys representing Texas Attorney General Ken Paxton in a San Francisco, California federal court. Heres your lawsplainer for the proceedings.

Congress has questioned Big Tech leaders about their censorship policies on multiple occasions. Last year, as Twitter and other social media outlets became more blatant in viewpoint discrimination by banning The New York Posts reporting on Joe Bidens pay-to-play scandal revealed from documents found on Hunter Bidens abandoned MacBook, and following citizen complaints, Texas Consumer Protection Division launched an investigation also.

The Texas investigation sought to focus on Twitters policies and procedures relating to content moderation. That division enforces Texas Deceptive Trade Practices Act, which prohibits companies from misleading Texas consumers and declares unlawful False, misleading, or deceptive acts or practices in the conduct of any trade or commerce.

According to Paxton, Texas investigation seeks to determine whether Twitter engaged in deceptive trade practices by telling Lone Star State consumers that is content moderation policies are objective and not viewpoint-discriminatory, and that its content-moderation rules are transparent and publicly available. Further, Paxton notes that while Twitter appears to emphasize these points to attract and retain users who they can monetize through targeted advertisements, . . . there is good reason to think that Twitter misled Texas consumers with those claims.

In January, the Texas Consumer Protection Division issued a Civil Investigative Demand, or CID, to Twitter, seeking production of five categories of documents relevant to its investigation of Twitter. Under state law, a CID can be issued to any person (or entity), the consumer protection division believes . . . may be in possession, custody, or control of the original copy of any documentary material relevant to the subject matter of an investigation.

Among other things, Paxton sought all policies and procedures related to content moderation on [Twitters] platform, including any policies or procedures that limit the reach or visibility of content intended for public viewers. The CID also requested a copy of all communications, internal and to third parties, [Twitter] had between January 1, 2019, and the present regarding the social media platform Parler.com or Parler Inc.

Under state law, a recipient of a CID has the option of producing the documents, challenging the CID in state court, or waiting for the state to sue in state court to enforce the CID and at that point challenge the Consumer Protection Divisions request for documents. However, after originally working with Texas and obtaining several extensions to the CID deadline, Twitter ignored the states procedures for challenging the CID and instead on March 8, 2021 filed a separate lawsuit against Paxton in a federal district court in California.

In its one-count complaint, Twitter claimed Paxton was abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitters exercise of its First Amendment rights. Specifically, Twitter alleged that Paxton initiated the investigation [of Twitter] and issued the CID in order to use his official authority to punish Twitter for making content moderation decisions that he did not like, in the hope that Twitter would exercise its editorial discretion in a manner consistent with AG Paxtons preferences going forward. Such retaliation violates the First Amendment, Twitter alleged.

To support its claim of retaliation, Twitters complaint detailed numerous tweets or public statements by Paxton complaining of the social-media giants anti-conservative bias and statements Paxton made indicating a desire to take concrete legal action to stop Big Techs censorship. Amazingly, Twitter then argued:

Disclosure of its policies would threaten Twitters editorial discretion. Twitter exercises its editorial judgment by creating and implementing moderation procedures that reflect sensitive internal deliberations over what discourse appears on the platform and in what manner. These moderation policies and procedures are functionally equivalent to the internal editorial decision-making processes of news organizations: just as newspapers and magazines carefully guard their internal deliberation about what news they see as fit to print or what op-eds they will publish, so too does Twitter guard its internal deliberations and procedures for making editorial judgments.

For those following the debate over Section 230s grant of immunity to social media companies, this passage likely induces a GIF-worthy double-take: Twitter is making editorial decisions? Just like newspapers and magazines, which deliberate what they see as fit to print or what op-eds they will publish? Doesnt this suggest Twitter is no longer entitled to Section 230 immunity?

After all, Section 230 provided Twitter and other social media providers immunity by declaring these interactive computer service providers will not be treated as the publisher or speaker of any information provided by another information content provider. And Congress created that protection to preserve the vibrant and competitive free market and to encourage the development of technologies which maximize user control.

Twitter made sure, however, to disavow any such implication, dropping a footnote in the motion for injunctive relief it filed the same day, referencing Section 230: Section 230 of the Communications Act of 1934, upon which this case does not rest, protects Twitter from liability for the content that ultimately passes through its moderation procedures. The analysis of Twitters status under section 230 is distinct from the analysis of the protections to which it is entitled under the First Amendment.

While ironic that Twitter frames its First Amendment argument as based on its editorial position, the social media giant is correct that Section 230 is irrelevant to its case against Paxton. Rather, the question for the California federal court on Friday is whether to issue a preliminary injunction in Twitters favor barring Paxtons investigation and enjoining enforcement of the CID.

However, before reaching Twitters First Amendment claim, Judge Maxine M. Chesney, the judge presiding over Twitters lawsuit, will have to resolve several other legal issues firstissues Paxton raised in the Motion to Dismiss he filed shortly after Twitter filed suit in the San Francisco federal court.

In Texas Motion to Dismiss, Paxton argues initially that courts in California lack personal jurisdiction over him, meaning the power of the federal court in California to haul the Texas attorney general before it to defend against Twitters complaint.

Personal jurisdiction is a constitutional requirement stemming from the due process clause, and for Paxton to be subject to the personal jurisdiction of the courts in California, he must have certain minimum contacts with [California] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Twitter argues Paxton is subject to Californias personal jurisdiction because he opened a Twitter account and agreed to the terms of service that include a provision that he consented to personal jurisdiction in California. That argument is unlikely to sway the court, however, because Twitters lawsuit against Paxton is unrelated to the Texas attorney generals use of Twitter.

Alternatively, Twitter argues that because Paxtons investigation and CID affect Twitter in California, he is subject to litigation in California, while Paxton argues that is insufficient to establish personal jurisdiction. Both Twitter and Paxton cite case law supporting their views, but it presents a difficult question without a predictable answer.

Even if the court concludes Paxton is subject to suit in California, Paxton presents another basis to dismiss the complaint: Paxton asserts Twitters claim is not yet ripe.

Because Article III of the U.S. Constitution grants federal courts jurisdiction only over cases or controversies, a case must be ripe for a federal court to hear the disputeif it is not ripe there is no case or controversy to resolve. To be ripe, a plaintiff must assert an injury that is real and concrete rather than speculative and hypothetical. Generally, a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.

Paxton argues that because it has taken no action to enforce the CID, Twitter has not been injured and Twitters First Amendment claim is premature. Conversely, Twitter argues that the issuance of the CID has chilled its speech by constraining its moderation decisions and deliberations. The ripeness issue also presents a difficult question, and again with no certain answer.

A third difficult question Paxton presents in Texas Motion to Dismiss concerns venue, or the most appropriate geographical location for the case. Even if there is jurisdiction in California, Paxton argues that venue is improper there and requests the case either be dismissed or venue be transferred to Texas.

Venue seeks to protect a defendant from unfair or inconvenient forums, and Paxton presents a strong argument California is an improper venue, but again whether the court agrees is another matter.

Paxtons Motion to Dismiss presents one final complicated issue: Whether the court should abstain from the dispute, meaning refuse to hear the lawsuit. Several different abstention doctrines have developed over the years that compel (or permit) federal courts to dismiss cases that involve or are intwined with state law issues. In this case, Paxton argues that Pullman abstention requires the court to abstain from resolving Twitters complaint.

Pullman abstention is an equitable doctrine that comes into play when it appears that abstention may eliminate or materially alter the constitutional issue presented. Pullman abstention is appropriate if a case presents a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.

In other words, Paxton argues that the California federal court should refuse to hear Twitters case because the First Amendment claim Twitter presents might be mooted following litigation in Texas concerning the validity of the CID. For instance, if a Texas court declares the CID invalid, Twitter would have no federal constitutional claim to litigate, and therefore, the federal court should refuse to enter the fray at this time. Again, there is no clear answer on the propriety of Pullman abstention.

When Judge Chesney, a Bill Clinton appointee, hears the case on Friday, she will begin considering Paxtons Motion to Dismiss and the four arguments he presents for dismissal: lack of personal jurisdiction; lack of ripeness; improper venue; and Pullman abstention. If Chesney agrees with Paxton on any of those grounds, she will dismiss Twitters case (or transfer venue to Texas), and that will end the case in California.

However, if Judge Chesney rejects Paxtons arguments or takes the questions under advisement, she will then proceed to consider Twitters motion for a preliminary injunction. To prevail on this motion, Twitter will need to establish it has a likelihood to succeed on the merits of its First Amendment claim; is likely to suffer irreparable harm in the absence of a preliminary injunction; that the equities tip in its favor; and that an injunction is in the public interest.

Whether Judge Chesney grants Twitter a preliminary injunction barring the investigation into its policies and procedures and enjoins the CID will depend heavily on the courts assessment of whether Twitter is likely to prevail on its First Amendment claim. The other factors, while relevant, rarely drive the decision.

To prevail on its claim for First Amendment retaliation, Twitter must show it was engaged in a constitutionally protected activity; that Paxtons actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and that the protected activity was a substantial or motiving factor in the defendants conduct. If Twitter can establish those elements, Paxon will need to show he would have launched the investigation and issued the CID without respect to retaliation.

As noted above, Twitter claims that its content moderation policies were protected by the First Amendment and that Paxton targeted Twitter with an investigation and CID because he did not like the decisions Twitter made. However, as Paxton argues in its brief, Even if Twitter has a First Amendment right to choose discriminatory content-moderation policies, the Constitution does not empower it to mislead consumers about those policies. Consumer-protection investigations of potential misrepresentation do not violate the First Amendment.

Therein, lies the ultimate question for Judge Chesney to resolve: Did Paxton target Twitter for its content moderation policies or for lying about its content-moderation policies?

Of course, the long-time federal judge might instead opt for one of the four options Paxton provided to avoid resolving that question. Tomorrows hearing will likely provide some hints to the direction she is leaning.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame.The views expressed here are those of Cleveland in her private capacity.

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What You Need To Know About Twitter's Lawsuit Against Texas Up Friday - The Federalist

Voters in Lubbock, Texas, over the weekend, passed an ordinance abolishing abortion within city limits.

The controversial proposition, which makes the more than 250,000 person city the largest sanctuary city for the unborn in the United States, not only deems it unlawful for any person to procure or perform an abortion of any type and at any stage of pregnancy in the city, but it also provides financial penalty for people who knowingly aid or abet an abortion in the city.

We are grateful that the voters of Lubbock voted so overwhelmingly to outlaw abortion and affirm the sanctity of human life. We congratulate everyone who worked so hard to pass this ordinance and produce such a strong turnout for this historic election, Mark Lee Dickson, director of Right to Life of East Texas and Founder of the Sanctuary Cities for the Unborn Initiative, told The Federalist. Planned Parenthood and its supporters also worked hard to get their supporters to the polls, and we congratulate them on their efforts. Now that the voters have spoken, we expect Planned Parenthood to respect the outcome of this election and cease providing abortions at its Lubbock clinic.

Despite opposition from Planned Parenthood and pro-abortion activists attempts to stifle pro-life support in the area by pouring outside money into the election, coordinating with law enforcement to oust conservative activists at the March for Life rally, feigning endorsements against the proposal from local news outlets, and stealing vote for life yard signs from churches and homes, the proposition passed in a landslide victory with more than 21,400 votes to stop killing unborn babies within city limits.

The ordinance found its beginnings in the west Texas city last year after Planned Parenthood, which hadnt been in Lubbock since 2013, announced its return at the end of July, claiming to offer affordable healthcare services and both surgical and medication abortion services available at a later date.

After the announcement, apetitionbystate Sen. Charles Perrycirculated the city and state, calling for people to send a clear message that the abortion industry should not set up shop in our backyard.

Unborn children should have the right to live and Planned Parenthood profits off ending their lives. This is unacceptable, the petition stated.

More than 5,000 people signed the petition, but the City Council led by Mayor Dan Pope unanimously voted against passing the ordinance, which forced a referendum. Now the Lubbock City Council will be forced to canvas the votes and add the ordinance to the city code.

Pope, who previously refused to place the ordinance on the citys agenda and said opening a Planned Parenthood in the city was equivalent to starting a new supermarket or church, released a statement celebrating the voter turnout.

Over the course of several months, Lubbock citizens who support the ordinance and those opposed have expressed their thoughts in public forums and engaged in passionate debate on this sensitive issue. Today, voters made it clear that Lubbock will become the next sanctuary city for the unborn. I am encouraged by the significant voter turnout, Pope said.

Big Spring, Texas Mayor Shannon Thomason also congratulated Lubbock on approving the ordinance and seizing the title for the largest of the 25 sanctuary cities for the unborn.

On behalf of the City of Big Spring, I extend our congratulations to the citizens of Lubbock on their becoming the largest city in the United States to become a Sanctuary City for the Unborn! he wrote.

Jordan Davidson is a staff writer at The Federalist. She graduated from Baylor University where she majored in political science and minored in journalism.

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Lubbock, Texas Abolishes Abortion To Become Sanctuary City For The Unborn - The Federalist

On this episode of The Federalist Radio Hour, Dr. Weifeng Zhong, a senior research fellow at the Mercatus Center at George Mason University, joins Culture Editor Emily Jashinsky to discuss theBiden administrations approach to China and how the U.S. should interact with the communist regime.

It has been a standard practice on the front of the foreign policy on the Chinese to accuse various problems that the U.S. has and thats really just propaganda of serving domestic purposes, Zhong said. This is what they do all the time. And no matter how perfect or how imperfect the U.S. is, those talking points will be still there in China.

Communist China, Zhong said, uses propaganda to convince its citizens of a false narrative and allows them to make decisions without consequences.

People like me, we had no idea because we were totally in the dark and not only we didnt know and even if we do now, I know that now, but I still couldnt do anything because the regime is so powerful, Zhong said. The regular or average Chinese person has missed out a lot of all these things that we criticize China on because they dont know the stories that are not [publicized in China].

Read Dr. Zhongs policy change index here.

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Inside The CCP's Effort To Suppress Information - The Federalist