Report from Quarantine: Week 1

Since (and because) I returned from Africa via Jo'burg and Heathrow, my wife and I have been in self-quarantine.  Here is my self-absorbed, self-quarantine report, week 1.

What I'm Reading

Moshin Hamid, Exit West (2017) (Amazon).  Hamid is best known for his 2007 novel, The Reluctant Fundamentalist (Amazon), basis of the 2012 film.  This book offers an intimate character study of a couple who flees civil war in an anonymous homeland, as they experience displacement amid western cultures. I care for neither romances nor narrative demagoguery, but this book, colored with a shade of magic realism, is more complex than the former and more crafty than the latter. Thoroughly compelling recommendation from Dean Peltz-Steele.

Charles Serio, The Legend of the Blue Cloud (2019) (Amazon).  Shout out to my uncle, who authored this book.  London based, Charles Serio is an accomplished playwright and communication consultant.  His debut novel was the quasi-autobiographical The Lies I've Told (Amazon).  In this book, he fully embraces fiction, spinning the yarn of young adults in the American West who must combat an evil force that seeks to unleash itself on our earthly realm. The book might best be billed as a YA thriller, though its portrayal of the antagonist has a mature edge. Better than I could write, it's sometimes rough around the edges, but I was engaged to the end to find out what would happen to my heroes.

James D. Zirin, Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits (2019) (Amazon).  I started planning my Trump Litigation Seminar for fall 2020 before I knew this book was coming out.  My goal was to use Trump case stories as a vehicle to teach tort law and litigation skills.  Now I plan to assign this book, too, which adds a rich policy dimension to the subject.  What Zirin illustrates is frightening:  You be the judge of the President; what I find frightening is the sorry state of our justice system, for its vulnerability to exploitation by the ruthless.

Book of Judges (Bible Study Tools).  In my on-again-off-again flight from Africa, I admit, I lost the thread of my church's yearlong Bible-reading study.  But let's be honest, who hasn't lost the thread in Numbers?  I was back in the saddle for Joshua, and now, in Judges, Deborah has summoned Barak to the Palm.  No spoilers!

What I'm Watching

Toy Story 4 (2019) (IMDb).  It would have been hard to top Toy Story 3, and 4 does not.  That said, 4 is a well worthwhile frolic and welcome opportunity to see what became of our beloved characters after Andy.  Key and Peele are delightful additions to the cast as Ducky and Bunny, and Keanu Reeves is downright brilliant as Duke Caboom.  Yes, we Can-ada!

Star Trek: Picard s1 (2020) (CBS trailer, IMDb).  This worthy new entry in the history of the franchise shows Star Trek to be in good hands at CBS.  Patrick Stewart said he would not appear again as Jean-Luc Picard after Nemesis.  But even he could not resist the siren call of the pen of Akiva Goldsman and Michael Chabon, whose writing is inspired.  Make it so.

Avenue 5 s1 (2020) (HBO trailer, IMDb).  Not every joke lands, but those that do more than make up the difference.  Hugh Laurie is characteristically fabulous.  And I adore Nikki Amuka-Bird, who, as Rav Mulcair, steals every short scene she's in.  Fly safe, fly true.

Letterkenny s6 (2018) (IMDb).  I had tickets to the live show in Portland, Maine, in March: postponed indefinitely for coronavirus.  So I slowed my viewing to savor seasons 6 and 7.  Pitter-patter.

What I'm Eating

Crepelicious, Barrington, RI, USA.  A scrumptious ham, egg, and cheese crepe like this one could be yours for curbside pickup from locally owned Crepelicious.  Please, if you are in a position to do so, support your local restaurants and retail!

Whole Foods Market.  Guilty as charged.  In my defense, we're not breaking quarantine to go to the grocery store, which seems to me the weak link in the whole flatten-the-curve effort.

What I'm Drinking

Jamestown Coffee (Facebook).  Made in Ghana, fruit of my recent travels.  Smooth and tasty.

Highclere Castle Gin.  You watched the TV show and the movie; now try the gin.  A smooth London dry with a hint of lavender, it's made with botanicals from Highclere Garden and the imprimatur of real-life Lord and Lady Carnarvon.

What I'm Hoarding

We just received an aid package from my sister- and brother-in-law in Atlanta, where, apparently, this stuff grows on trees.  Before you get any ideas: My house is protected by Smith & Wesson.

Poli sci papers embrace power plant implosion, populist revolution, and constitutional convention

Here are a few of my favorite gleanings from yesterday's day one of the 2019 annual meeting of the New England Political Science Association in Portland, Maine, April 26-27, kicking off with the Brayton Point tower implosion this morning, Saturday, April 27.

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The Brayton Point cooling towers are no more
(CC BY-SA 3.0 Wikimaster97commons).

Imploded towers invite study of environmental law, policy, and urban aesthetics

Professor Aaron Ley, on the faculty at URI Political Science and also a town council member in Bristol, R.I., is working at the point where environmental law and policy meet public aesthetics.

After presenting on Friday, April 25, Ley left NEPSA to get back to the Massachusetts South Coast and witness the implosion Saturday morning, April 26, of the cooling towers at Brayton Point.  The towers have become a defining feature of the skyline in the region, so their absence in the vicinity of Fall River, Mass., and eastern Rhode Island will be an adjustment for locals (me included).  Though oft invoked as a symbol of adverse environmental impact, Ley explained at NEPSA, the towers functioned actually to mitigate the impact of the coal-fired power plant they grace, because they cooled water before it was released back into the Taunton River, sparing fish and their eggs from destructive warm water.

Ley is working interdisciplinarily with colleagues Bryce DuBois, lecturer at the Rhode Island School of Design, and Katherine LaCasse, in psychology at Rhode Island College, to complete survey and conventional research into public perceptions of urban spaces relative to environmental law and policy.  At NEPSA, Ley detailed the fascinating history of policing pollution in American waterways, from riverkeepers back to bounties on the 19th-century Hudson.

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Are we living in Google and Facebook 'company towns'?
They have courts now

Professor Kevin McGravey at Merrimack College is collecting and analyzing social media cases to see whether the First Amendment public forum doctrine still has some vitality in deciding these disputes, such as the President's ability to mute or block Twitter users.  See Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018) (holding President's blocking of users on Twitter violated First Amendment requirement of viewpoint neutrality; now on appeal to Second Circuit). Cf. Packingham v. North Carolina (U.S. 2017) (holding social media restriction on registered sex offender violated First Amendment.)

The Gulf Shipbuilding Corporation, pictured here after WWI, owned the
Chickasaw, Ala., company town at issue in Marsh v. Alabama after WWII.
From Destroyer History Foundation.

McGravey thinks that the old company town case of Marsh v. Alabama (U.S. 1945) is relevant.  He concedes that the Marsh analogy to a social media platform was rejected by the court in Prager University v. Google, LLC, No. 17-CV-06064-LHK, 2018 WL 1471939 (N.D. Cal. 2018) (now on appeal to Ninth Circuit), in which the court refused to intervene in YouTube classifications and restrictions of PragerU's conservative political videos.  (See Eric Goldman's skepticism of the Marsh theory.)  But McGravey disagrees on a number of grounds, including the exclusivity of certain social media platforms as access avenues to public officials.

A company-town analogy doesn't get all the way to where we should be, McGravey admits, but the public forum doctrine might ought be reformed and extended to achieve worthwhile policy goals such as viewpoint neutrality on Facebook.  Still sounds like a stretch?  Well, consider, Mark F. Walsh in the latest ABA Journal reports on Facebook's plans to create a quasi-judicial appellate body to hear free speech claims.  Google already is adjudicating—internally and not transparently—right-to-erasure claims at the bidding of European data protection authorities.  Is that the town hall bell of the company town I hear?

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Federalism panel spans Rehnquist Court, religious freedom,
and the 1825 Constitutional Convention that never was

A smattering of views from a panel on federalism and the administrative state: 

• Christopher McMillion, Oklahoma Baptist University, is looking at the deep underpinnings of the "Rehnquist revolution" in federalism.  It's not about conservative politics, nor about federal power per se, he explained.  Rather, it's about protecting individual liberties—and actually the same kind of force can be witnessed in 10th-Amendment state jealousy of local officials' prerogatives relative to federal immigration enforcement.  
• Beau Breslin, Skidmore College, is working on a book on the constitutional conventions the United States has never had.  Surely Article V of the U.S. Constitution contemplated conventions with some periodicity.  What if we had had one about every human lifespan?  An 1825 Constitution probably would have opened with a lengthy declaration of rights and would have created an explicit voting franchise for white landholders, Breslin theorizes.  Oh, and Madison would have been so peeved that he sat out the Second Convention.  What would have been the implications in U.S. history for the Constitution thusly revised?  What would the Constitution look like after a 2022 convention?  Breslin examines these questions in part with reference to the real evidence of evolving state constitutions.

• 

  Maine Gov. Baxter with Irish Setter Garry Owen
  (public domain)

  James Stoner, Louisiana State University, exposed the thinly veiled nuance of religious freedom questions in the United States, from Employment Division v. Smith (U.S. 1990) to present.  The courts have looked the other way from legislative prayer, for example, and for that matter from the intertwining of government and religious practice since the days of George Washington himself.  He concludes that the judiciary is ultimately not the best forum for resolution of debate over religion in American public life.
• Sean Beienburg, Arizona State University, is researching the curious political journey of 1921-1925 Maine Governor Percival Baxter (namesake of Maine's beautiful Baxter State Park).  Republican Baxter advocated against the Ku Klux Klan at a time the Klan was making inroads with Maine Republicans.  He also staked out the political territory that would become Republicans' 20th-century economic libertarianism.  I note that Baxter was also an animal rights advocate before there was such a thing, and Maine's beautiful Baxter State Park is named for him.

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Populist revolution and American electoral politics
are both about more than red versus blue

I moderated and discussed on an afternoon panel with three fantastic papers.

• Erik Cleven, Christopher Galdieri, and Ashley Motta of Saint Anselm College are studying "down-ballot roll-off," when voters stop voting as they move down the ballot from "US Senator" to "Town Dogcatcher," or, really, "Register of Probate."  They set out to see whether there is merit in criticisms that voting college students dilute local electoral power because college students aren't interested in local races.  That turns out not to be true—not entirely true, anyway.  Looking at New Hampshire data, they found that new voters in a jurisdiction are responsible for down-ballot roll-off, and college students might just be part of that.  Other correlations arise with low education and lack of partisan tags to indicate party affiliation.  I suspect that an underlying cause is low information, a problem that dovetails with my own interest in transparency and affirmative disclosures of information to correct democratic deficit in developing political systems.



The "heartland-coastland" divide is more complicated than it seems and not
merely an expression of partisan sympathies, R.I. political scientists June
Speakman and Matthew Ulricksen show in new research.

• Two papers were strikingly complementary.  Isaac Effner, Brown University, took the normative lens off of "populism" to recount how a populist labor movement effected the 1934 West Coast waterfront strike and contributed dramatically to the evolution of organized American labor and 20th-century norms for the protection of American (and for that matter global) workers.  Don't be too quick to judge populism in scoffing at frustrated voters who support Trump, is the lesson, because populism per se can be a force for the vital expression of human rights, notwithstanding a temporary flirtation with demagoguery along the way.  Effner notes that similar populist motivations animated support in the last election for both Donald J. Trump and Bernie Sanders.
• And there comes to bear the remarkable work of Matthew Ulricksen, Community College of Rhode Island, and June Speakman, Roger Williams University and a representative in the Rhode Island legislature and former member of my Town Council in Barrington, R.I.  Ulricksen and Speakman showed some stunning maps of voting patterns in Rhode Island in the last election—I'd like to share, but they're not copyright-clear for my reuse; see the New York Times results.  Suffice to say the electoral maps reveal a deep divide in what looks like what Speakman and Ulricksen call a "heartland-coastland" divide, the former, Rhode Island's interior, Trump red, and the latter, in the salt air, Clinton blue.  Problem is, a number of data sets about who these voters are—wealth, ethnic identity, even partisan affiliation—do not actually bear out the divide.  What does?  Spoiler alert: population density.  What's more, because there is correlation with population density and not partisan loyalty, the heartland proves as receptive to Bernie Sanders's message as to Donald Trump's.  Speakman and Ulricksen identify one factor that explains voter behavior across the board: being "mad as hell."  The research leaves off there, but implications and questions abound for what will make an effective political movement in the future to capture increasingly alienated voters—and what conditions might trigger a populist revolution analogous to the 1934 general strike, or something bigger.

The annual meeting of the New England Political Science Association wraps up today, when I'll be presenting some findings on access to information and social and economic development in eastern Europe.

Kenya knows best: Let's not "open up" criminal libel

In one campaign-trail declaration, President Trump said he would “open up” defamation law, increasing media liability exposure.  The Trumps know a thing or two about defamation law.  Just this past week, Melania Trump favorably settled a claim against a blogger who had written that she worked as an escort.

With President Trump continuing to denounce “dishonest” media, there has been much hand-wringing in the media defense bar over the vitality of defensive legal doctrines in civil defamation.  There has been less talk about the possibility of a criminal defamation revival.  Criminal defamation was at issue in a decision of the High Court of Kenya on February 7.  The court threw out a criminal conviction for defamation, ruling the applicable penal statute incompatible with the freedom of expression.  The decision can be downloaded from Live Law India.

Commentators have aptly pointed out that defamation law is state tort law, so the President of our federation of states has limited power to effect civil defamation reform.  But often overlooked is the possibility “to open up” criminal defamation law at both state and federal levels.  Criminal defamation imposes the threat of arrest and prosecution for the same libel or slander against a person that civil defamation means to redress.  Because the “plaintiff” in a criminal case is the state, or the people, rather than the individual claiming injury, criminal defamation is highly disproportionately invoked when the alleged victim is a public official.

Because criminal defamation implicates the power of the state to condemn spoken or written words, the First Amendment freedom of expression is powerfully implicated.  The use of criminal defamation law disproportionately to silence criticism of public officials implicates freedom of expression all the more, because core political speech is placed at risk.  For this reason, human rights law around the world strongly disfavors criminal defamation.  NGOs from the Reporters Committee for Freedom of the Press in the United States to the global Committee to Protect Journalists and International Press Institute maintain flatly that criminal defamation is irreconcilable with the freedom of expression.

The U.S. Supreme Court has not gone so far, but has extended to criminal defamation defendants the same substantial constitutional advantages that First Amendment law affords to defendants in civil actions.  Criminal defamation has been rejected in many states, whether by state constitutional ruling, statutory repeal, or just failure to prosecute.

A problem with criminal defamation at the federal level is that when the alleged victim of defamation is a high-ranking federal official—such as the President of the United States—there is only a fuzzy line between criminal defamation and sedition.  The regulation of sedition is the province of the federal government, and federal law against sedition dates back to the Congress of 1798.  Like regulation of criminal defamation, the criminalization of seditious expression is limited by the First Amendment, with standards such as the not-precisely-named “clear and present danger” doctrine.  Also like regulation of criminal defamation, the criminalization of seditious expression is not unconstitutional per se.  Fuzzy First Amendment limitations leave room for interpretation.  If criminal defamation is viewed interchangeably with sedition, based on the identity of the victim, there might be room to expand criminal prosecution of either.

The decision in Kenya is a reminder that criminal defamation is out of step with contemporary human rights norms, especially when the machinery of the state is used to protect public officials and their powerful allies.  The prosecutions in Kenya arose over a long running feud between the defendants and a complainant-lawyer.  Rightly or wrongly, the defendants impugned the integrity of the lawyer, who brought civil suit.  The defendants defied a judicial restraining order.  Ultimately the lawyer complained to police.  

The penal statute on defamation authorized imprisonment for up to two years.  Referencing the European human rights principle of proportionality, the High Court held in essence that criminal sanction is a disproportionate response to injurious expression.  Civil remedies are instead appropriate to protect reputation.  Criminal sanction, the court concluded, should be reserved for war propaganda, incitement to violence, hate speech, or advocacy of hatred based on ethnicity.  The result should not be read to condone the defendants’ conduct, nor to condemn the complainant.

Whether or not we need “to open up” defamation liability, there is a case to be made that the defense-friendly developments in U.S. defamation law in the late 20th century were excessive.  Our constitutional norms over-protect free expression, well beyond the proportionality principle, to the diminution of competing personal rights.

But the imposition of criminal sanction for speech is another matter.  Criminal defamation cases in the United States often implicate the reputations of police officers, politicians, or other persons of power or high profile, indicating that criminal defamation is a power too readily perverted to authoritarian ends.