Product liability, negligence claims underlie Supreme Court cases with jurisdiction, First Amendment issues

Two cases filed in the U.S. Supreme Court arise out of tort claims, if presenting more immediate questions in other doctrinal veins.  Recent media coverage of each offers worthwhile observations.

U.S. Supreme Court denies government bid to argue for corporate jurisdictional defense in product liability case

Historic Ford Motor Assembly Plant in California
(Almonroth CC BY-SA 3.0)

Ford Motor Company v. Montana Eighth Judicial District Court, No. 19-368 (SCOTUSblog), No. 19-368, might be one for the civil procedure casebooks.  It is consolidated with a similar case, Ford Motor Co. v. Bandemer, No. 19-369 (SCOTUSblog).  In Montana Eighth, a Montana driver died after tire treads separated on her Ford Explorer on a state highway.  In Bandemer, the plaintiff-passenger suffered severe brain injury after the airbag failed to deploy in a Ford Crown Victoria that rear-ended a snowplow in Minnesota.  Plaintiffs in both cases sued Ford upon theories including strict product liability and negligence.  Ford sells cars in both Montana and Minnesota, but not these cars; they wound their way to those states through changes in ownership.  Based on that attenuation, Ford contested personal jurisdiction and lost in both state supreme courts.

U.S. S.G. Noel Francisco

Darcy Covert and A.J. Wang for Slate highlighted an interesting development behind the scenes in the Ford cases: The Supreme Court denied a motion by the U.S. Solicitor General to participate in oral argument.  As Covert and Wang observed, the Supreme Court "[f]or roughly the last decade, ... [has] permitted the solicitor general to weigh in on any case he wants."  That permissiveness exaggerated a trend in the waning decades of the 20th century in which the SG intervened in cases with diminishingly credible legitimate federal interest.  The SG's cause for intervention has become more about politics, or even, my words, the realpolitik of corporatocracy, than about interests of federalism or constitutional law.  Witness the Ford cases, in which the SG hardly articulates any credible rationale to thinly veil the executive's alignment with your friendly neighborhood (non-governmental) U.S. Chamber of Commerce to make it that much harder for a consumer plaintiff to sue a manufacturer.

Slate's headline described the Supreme Court's denial as "a small step in the direction of judicial independence."  Let's hope so.

Black Lives Matter petitions U.S. Supreme Court after Fifth Circuit 'bobbled' freedom-of-assembly defense in negligence case

DeRay Mckesson (Jay Godwin, LBJ Library)

Mckesson v. Doe, No. 19-1108 (SCOTUSblog), not yet granted cert., is likely to turn up in a lot of books—it's already rounded the circuit in legal op-eds—because of its rich social dimensions.  But the core legal problem is pretty straightforward in its articulation.  Doe was a police officer severely injured when a Black Lives Matter protest, blocking a Baton Rouge highway, turned violent.  Doe sued DeRay Mckesson for negligence as a protest organizer, alleging that Mckesson reasonably should have foreseen injury-causing violence.  (Mckesson played a collateral role in another First Amendment case, Johnson v. Twitter (Complaint; read more at The Hill), which I talked about at Amity Dubai last summer on the subject of social media-related liability.)

At first blush, the case looks something like one of the entrants in the unsettled First Amendment genre of negligent "inducement to violence."  In one of the earliest such cases in the modern civil rights era, Weirum v. RKO General, Inc., 15 Cal. 3d 41 (1975), a radio DJ induced first arrival at a giveaway point, resulting in a fatal car accident.  For the California Supreme Court, famous Justice Stanley Mosk summarily rejected the DJ's First Amendment defense: "The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act."

Justice Mosk might have been right on those facts, but his unwillingness to recognize a slippery slope had to have been willful ignorance.  The more familiar "clear and present danger" (or "incitement to imminent lawless action") doctrine and the much debated "true threat" doctrine in First Amendment law more plainly demonstrate the same problem.  It's not at all clear that the RKO DJ "inflict[ed]" physical injury, and doesn't the sticks-and-stones maxim posit that that's impossible?  Cf. James 3:6-8.  I've seen many scholars try to tackle the Weirum problem; they've all concluded either that the case was rightly decided but at the extreme of a spectrum, or that it was wrongly decided, despite the DJ's socially objectionable conduct.

Black Lives Matter protest in Baton Rouge, La.
(Antrell Williams CC BY-ND 2.0)

The First Amendment speech-and-assembly activity in Mckesson is more attenuated causally from physical injury than the radio broadcast in Weirum.  More time, space, and independent decision-makers separated defendant-organizer Mckesson from violence against plaintiff-Officer Doe than separated the RKO DJ from his driving listeners.  And in a way that is difficult and hazardous to quantify, if nonetheless important, much greater political value—at the core of First Amendment protection—attaches to the organization of a protest against the government than to a commercial radio promotion.

Mckesson must be free of negligence liability, even if the right path to get there in First Amendment jurisprudence remains to be worked out.  Professor Eugene Volokh in Reason suggested a smart fix in the firefighter rule.  That rule's nuanced underpinning in public policy invites the First Amendment to put a thumb on the scale, and such clever fixes—including legal causation, for foreseeability, itself—have helped to resolved negligent-speech injury cases before—in a Fifth Circuit case in which now-Chief Justice Roberts represented the media defendant.

The view I want to highlight here, though, is that of University of Baltimore Law Professor Garrett Epps in The Atlantic, who attacked the problem more directly through free-assembly precedent grounded firmly in civil rights-era protection of boycotts.  To Epps's view, the "rogue" Fifth Circuit "has had four chances to apply a foundational First Amendment precedent, and has bobbled it each time."  I hope the Supreme Court sees it the same way.


Ford Motor Co. will be scheduled for oral argument in fall 2020.  McKesson is pending cert. consideration this spring; if the petition is granted, the case also will be scheduled for argument in the 2020-21 term.

Report from a Social Distance Week 5: A Birthday, a Flood, and a Fire

April snow (RJ Peltz-Steele CC BY-SA 4.0)

My plan-B return to Africa in June was just canceled.  I kind of expected that.  Here in New England, it remains unseasonably chilly, lows this week at the freezing point, and highs usually in the low 50sºF, 12ºC give or take, and a mean wind chill.  One morning even brought a light snow.  The long-range forecast shows no warming for the remainder of the month.  We’re getting deeply anxious for the transition to spring, even as the names of the days have become arbitrary.  At least in this week 5 of isolation, we had occasion to celebrate a calendared milestone, my wife’s birthday.

What I’m Celebrating…

It was a Quarantine Birthday!

For my wife, I made a birthday cake!: a classic pound cake with hazelnut buttercream frosting.  I won no points on aesthetics, but the sweet taste was spot on.  I also made our dinner of vegetable pasta with mozzarella garlic bread, heavy on the garlic.  We had my wife’s favorite wine, Gazela vinho verde (she’s a cheap date).  And from her Amazon WishList, she received some admittedly non-essential but long desired Yuxier BBQ gloves (Spider-Man-style, but not really, because a Chinese maker wouldn’t dare test trademark).  Our daughter sent our favorite flavored honeys from the Savannah Bee Company, and there were lots of lovely cards: thanks, family and friends.

What I’m Reading

The Atlantic (May 2020).  The latest issue of my favorite magazine, The Atlantic, hit my doorstep this week, and I’ve never been happier to see it.  This month has the usual plenty of enthralling content, from an assessment of the fractured right in American politics (Robert P. Saldin and Steven M. Telles), to a photo study of social distance (Amy Weiss-Meyer), to an exploration of the everlasting allure of Scooby Doo (Christopher Orr)—this year’s May movie Scoob! will skip theaters.  Most-interesting-item honors go to MacDowell Colony fellow Francesca Mari’s “The Shark and the Shrimpers” for breaking down the legal system’s obscene exploitation of the BP disaster with faked compensation claimants.  The conduct of key plaintiff’s lawyer Mikal Watts, acquitted, I found frighteningly reminiscent of Ecuador v. Chevron's fallen star, Steven Donziger.  According to Mari, Watts even commissioned a documentary about himself; cf. Donziger’s PR panache.  Somehow, despite the well reasoned fury of U.S. District Judge Lewis Kaplan, Donziger last week wrangled the validation of 30 Nobel laureates.  That’s more Bizarro than the “liberate” tweets.

🙏 Our ongoing Bible reading has proceeded from First to Second Kings, and we’ve begun a Sunday Zoom study of my favorite book, James.  If you feel in need, or wish to support others, in these strange times, you are welcome to visit our church’s new virtual prayer wall, as well as Sunday service at 0930 US EDT.

What I’m Listening To

Floodlines (2020).  This eight-part audio series by Vann R. Newkirk II represents a first foray into podcasting for The Atlantic.  It’s a fascinating deep dive into the Hurricane Katrina disaster, exploring all angles, especially race and socioeconomic implications.  Newkirk skillfully weaves a narrative that traces New Orleans history from its roots in slavery to its contemporary demography.  A lot of what’s here wasn’t new to me, because, for work, I’ve done a more-than-normal amount of reading about Katrina, and I'm personally familiar with NOLA.  (The audio pacing is slow, and you can nudge up the speed if you use an intermediary such as Google rather than streaming from the home page.)  There’s still plenty here, though, for anyone, and maybe a lot for some: Katrina was 15 years ago, so young adults might not even remember it.  For my part, I had never heard of the case of Ivor van Heerden, who lost his academic post at LSU Baton Rouge in suspicious subsequence to his criticism of the Army Corps levees.  That one nugget from Floodlines part 3 sent me down a depressing rabbit-hole-reading of van Heerden’s ultimately unsuccessful litigation.  Academics, even with tenure, almost always lose to judges’ sycophantic deference to university bureaucrats, while a 2011 AAUP report had no trouble seeing through LSU’s pretext.  FIRE wrote about the importance of the van Heerden case just this week.

What I’m Watching

Code 8 (2019).  Eh.  It killed a couple of hours.  Did you know that Stephen Amell (Arrow) and Robbie Amell (The Tomorrow People) are first cousins?

For All Mankind s1 (2019).  A pandemic gift on free Apple TV+, I’m loving this series.  It’s not what I expected, and I don’t want to give away too much.  The premise of the show is an alternate history in which the Soviets won the moon race; that much was in the trailers.  Unexpected was the clever imagining of an alternatively unfolding history of American civil rights as a consequence of that pivotal national shame.  The title of the show turns out to have much greater significance than a fleeting reference to the Lunar Plaque or an innocent homage to Neil Armstrong’s famed phrase.  Joel Kinnaman returns to earth from Altered Carbon s1 to deliver a credible old-school astronaut struggling to find his place in a changing NASA, while Sonya Walger, as America’s top female astronaut, shines among an extraordinary cast of leading women.

KN Aloysh (Apr. 19).  My friend Komlan Aloysh launched his YouTube channel of interviews with African changemakers by sitting down to Zoom with Rhode Island-residing, Liberian tech entrepreneur Jacob Roland, founder and CEO of West Africa-serving Pygmy Technologies.  Their wide-ranging conversation reached from the transnational tech sector to Liberian food and culture.  Roland well observed, in whatever area one might wish to create, the Liberian market is ripe and ready.  And he tipped viewers off to top unspoilt beaches in Liberia, though I suggest you get there before Chinese developers do.  The show made me conscious of how much I am missing West Africa just now.

What I’m Eating

Bluewater Bar + Grill. This week's self-sacrifice (sarcasm) to #Save­Our­Restaurants went to a local institution and its generous and hard-working staff.  Our bounty included R.I. calamari, battered cauliflower, chili broccoli, burgers and truffle fries, and the pièce de résistance, cinnamon beignets worthy of their Louisiana heritage.

Bread machine.  “While you're watching Ozark and baking bread ... ,” Trevor Noah began a bit this week.  He had my number.  Ozark s3 is on the to-do list, and already I had dragged the bread machine up from the basement.  My aim was to save from waste the remaining brine from a finished jar of pickles.  For reasons unknown, my pickle-juice bread didn’t rise properly.  I got over the initial disappointment.  Though it was dense and a touch chewy, my undersized loaf was delicious, and I ate it up in the course of the week.

What I’m Drinking

New Orleans Blend.  My wife doesn’t usually care for dark roasts, but even she fell for this offering from Community Coffee.  Its rich texture kicks off your day with a Bourbon Street party in your mouth.  Maybe that’s the cabin fever talking, but laissez le bon temps rouler.

Bombay Sapphire East.  This geo-themed gin in classic Bombay blue boasts of Thai lemongrass and Vietnamese peppercorns.  I’m not sure I could distinguish it from straight Sapphire in a taste test, but I’m willing to pay for a foreign feel while stuck in the States.

Veiner Nössliqueur von Pitz-Schweitzer.  A yummy sample of hazelnut liqueur I picked up in Luxembourg: I used it in the icing for the birthday cake.  And maybe I sampled some according to the one-for-the-cup-one-for-the-cook rule.  The drinking policy at my work-from-home-place is super chill.

What I’m Doing to Stay Sane

Burn this.  Our town has suspended yard-waste pickup, so I collected from the yard and burned in the fireplace the winter season’s accumulated kindling.  We had a nice, hot fire for the birthday celebration.  Though I always worry whether the trees outside are alarmed by the smell of smoke from their fallen limbs.

This is the matrix.  Ramadan Mubarak to our Muslim friends, and blessed weekend to all.

Photos in Celebrating, Eating, Drinking, and Staying Sane are mine, CC BY-SA 4.0.

Amid pandemic, ballot access restrictions yield to right to run for office, state supreme court rules

Because of the coronavirus pandemic, political candidates will have to produce only half the usual number of voter signatures to see their names on the state primary ballot, the Massachusetts Supreme Judicial Court ruled Friday.  One justice in concurrence chastised the Massachusetts government for dropping the ball in technology to respond to the crisis.

Massachusetts primary ballots in 2016 (GPA Photo Archive CC BY-SA 2.0)

A primary election in the United States occurs at the state level before the nationwide Election Day in early November.  Voters in a primary election choose which candidates from each party will qualify for the final ballot on Election Day.  The Commonwealth of Massachusetts held its primary election for the U.S. Presidency on March 3; the primary election for state candidates to state and federal offices is set for September 1.  Candidates will vie for a U.S. Senate seat, nine U.S. House seats, 40 state senate seats, and 160 state house seats.  Some states with earlier scheduled elections postponed their primaries.  For example, Rhode Island postponed its same-day presidential and state primary election from April 28 to June 2.  The later timetable in Massachusetts leaves no room for postponement if officials are to prepare ballots timely for Election Day.

Declared on March 10, a state of emergency arose in Massachusetts at a crucial time for political candidates to collect signatures to qualify for ballots in the state primary election.  Party candidates were expected to submit signatures to state officials by April 28, for state offices, and by May 5, for federal offices.  The requisite number of signatures ranges from 150, for a state house seat, to 10,000, for a U.S. Senate seat.  Procured signatures in Massachusetts must be “wet,” that is, given live, in ink; there is not yet a legal process to collect, nor a technical capacity to certify, electronic signatures.

Customers line up at social distance to enter my local grocery store.

Photo in Barrington, R.I., Apr. 5, 2020, by RJ Peltz-Steele CC BY-SA 4.0.

Naturally the coronavirus lockdown has complicated the collection of wet signatures.  Candidates and their supporters ordinarily canvass voters door to door and at places where people congregate, such as shopping malls.  Social distancing restrictions came into effect just after the halfway point in the time window for collecting signatures.  Candidates sought relief from the executive and legislative branches of Massachusetts government.  Executive election officials said they were powerless to change statutory deadlines, and bills to relax signature requirements stalled in the legislature.  I note, it’s hardly in the interest of incumbents and their well-oiled politicking machines to facilitate the raising up of rivals.

Written or not, the right to seek representative office must be, to some degree, a civil, or human, right in a democracy.  In Massachusetts, the right is written.  Article 9 of the Massachusetts Declaration of Rights states, “All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.”

Article 9 of the 1780 Massachusetts Constitution
(Massachusetts Historical Society Collection)

The provision dates, unaltered, to the original 1780 Massachusetts Constitution (Papers of John Adams, vol. 8) and gave candidates now seeking access to the Massachusetts primary a plain hook to plead for judicial intervention.  On April 8, three representative plaintiffs, including two Democrats and one Republican, two seeking federal office and one seeking state office, filed an emergency petition for declaratory relief.

The Massachusetts Supreme Judicial Court has long recognized that the state constitutional right to run for office may confer judicial protection against overreaching legislative or executive restrictions on access to the ballot.  The provision was used to support women’s suffrage in 1922, if only after the 19th Amendment (1920).  The Court rejected a ballot access challenge to statute by Libertarian candidates in 2012; however, in dictum the Court reiterated its competence to adjudicate an article 9 claim and even cited article 9 in tandem with the inherent judicial power, as articulated in the landmark same-sex marriage decision in 2003, to extend Massachusetts civil rights beyond the scope of the U.S. Constitution.  Notwithstanding the power of judicial review, the Court’s experience in examining ballot access law under article 9 has before now resulted entirely in the approval of “reasonable” or “legitimate” qualifications for office.

Structurally, the Massachusetts Constitution, like the U.S. Constitution, disfavors judicial intervention in the electoral process.  “As a general matter, the principle of separation of powers … prevents the ‘judiciary [from] substituting its notions of correct policy for that of a popularly elected Legislature,’” the Court wrote in the instant case, quoting precedent.  The plaintiffs’ challenge here called for “policy judgments that, in ordinary times would be best left to the Legislature.”

"Signing a Petition" by Elizabeth Jenkins CC BY-NC-SA 2.0

Yet, the Court wrote, “[n]o fair-minded person can dispute that the fundamental right to run for elective office has been unconstitutionally burdened or interfered with by the need to obtain the required ‘wet’ signatures in the midst of this pandemic.”  Had the legislature passed a law similarly burdening ballot access in the absence of the pandemic, the Court reasoned, surely it would be ripe for judicial review under article 9.  Thus, “where fundamental constitutional rights are violated, and where the Legislature fails to remedy the constitutional deficiencies after having had the opportunity to do so, and where an aggrieved litigant files suit seeking remedial relief for the constitutional violation, the judiciary must provide such a remedy.”

The Court struggled with the appropriate level of judicial scrutiny, an issue that similarly has confounded the U.S. Supreme Court in its case law over free speech and campaign finance regulation.  U.S. constitutional law tends to approach civil rights problems from a formalist framework of tiered judicial scrutiny, its intensity ranging from zero, or minimal “rational basis” analysis, to presumptive unconstitutionality and stringent “strict scrutiny.”  This framework at first glance contrasts with the much more flexible European approach that functionalizes construction of “necessary in a democratic society,” though critics fairly allege that the U.S. Supreme Court’s tiered scrutiny has flexed functionally in application.

"Magnifying Glass" by Tall Chris CC BY 2.0

Like the U.S. Supreme Court, the Massachusetts Supreme Judicial Court has employed the language of both strict scrutiny and rational, or “legitimate” basis, in article 9 jurisprudence.  The Court explained: “When we evaluate the constitutionality of a restriction on access to the ballot, we apply a ‘sliding scale approach, … through which [we] weigh the character and magnitude of the burden the State’s rule imposes on the plaintiffs’ rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.’”  In other words, the degree of scrutiny is elevated as a function of the degree of burden.  Critics such as me contend that setting the appropriate degree of scrutiny only after purporting to observe the degree of burden invites the tail to wag the dog.  But that’s not important just now.  The Court found the burden here to be high enough, whatever language might be used to describe it, to demand strict scrutiny.

Though signature requirements might be modest and legitimate burdens on ballot access in the best of times, the Court opined that the signature requirements are excessively burdensome amid the present pandemic.  To reach that conclusion, the Court equated evolving social context with emergency electoral context:

[A]s we have recognized, statutory requirements that were once considered constitutionally permissible may later be found to interfere significantly with a fundamental right as societal conditions and technology change [indirectly citing the aforementioned same-sex marriage case]…. And similarly, statutory requirements that in ordinary times impose only modest burdens on prospective candidates for public office may significantly interfere with the fundamental right to run for political office in a time of pandemic.

Observers may opine whether, or when, that equation holds.  Though maybe not surprising when articulated by a progressive state court, the declaration simultaneously authorizes judicial aggrandizement in the expansion of human rights relative to time and in the constriction of human rights relative to exigency.  Potential implications abound, for example, in reconciling personal privacy with free speech, or climate change mitigation with free markets. For present purposes, the Court concluded that the signature requirements as applied could not withstand strict scrutiny.

By the time it reached remedy, the Court had painted itself into a corner.  The existing signature regime could not stand, yet the executive and the legislature refuse to solve the problem.  Plaintiffs invited the Court to simply void the signature requirement on this go-around.  But the state cried caution, fairly fearing that throwing open the doors of ballot access would result in incomprehensible ballot chaos for voters.  I would be inclined to find the state’s position paternalistic, but I remember hanging chads.

By Maklay62 at Pixabay

Admittedly loath to parse numbers, the Court invoked a Solomonic solution.  Observing that the emergency arose at about the halfway point of signature collection, the Court cut signature requirements by 50%.  The state had suggested that the requirement be cut only for offices requiring 1,000 or more signatures, presumably because of the chaos-will-reign concern, not the incumbency-will-be-threatened concern.  The bills stalled in the legislature would have taken that approach, too, reducing signatures from whatever number over 1,000 by half or two-thirds.  But the Court found itself without a sufficient basis to adopt the 1,000-signature cut-off, so applied the 50% rule across the board.

The Court issued two further declarations of equitable relief.  It extended the deadlines for candidates to submit signatures for state certification from April 28 to May 5, for state offices, and from May 5 to June 2, for federal offices, taking into account the pleadings of the state as to the minimal time needed to prepare ballots.  Second, the Court ordered state election officials to find a way to accept and certify electronic rather than wet signatures.  These additional measures the Court calculated in recognition of the difficulty, but not impossibility, of continuing to collect voter signatures during the lockdown.

Justice Kafker (Mass.gov)

Only one judge wrote a separate opinion.  In concurrence, Associate Justice Scott L. Kafker chastised the state for falling behind the curve in electoral technology:

In this “high tech” era, and in the midst of a global pandemic that severely restricts close personal contact, the failure to be able to solve manageable technological problems on the eve of an election is confounding and distressing. At a time when we need to be fundamentally rethinking what must be done in person and what can instead be done electronically, our electoral process seems dangerously unequipped to adapt to a new paradigm.

Justice Kafker pointed with approval to the electronic voter registration system adopted in Arizona.  The Court opinion in a footnote had pointed to Arizona similarly, as well as to technological adaptations in electoral process in New Jersey and Florida in response to the pandemic.

Justice Kafker concluded:

I feel compelled to emphasize that those responsible for our election process must have the necessary tools to quickly adapt to the current pandemic and the future crises to follow. Absent such technological adaptability, our elections will be imperiled and our election laws may themselves have to be rewritten in the midst of a crisis, as was done here. That is an invitation to conflict and confusion that must be avoided.

Voters line up in Boxborough, Mass., in the 2016 primary.

Photo by Liz West CC BY 2.0.

To read between those lines an entreaty to the legislature for funding would not, I think, be too speculative.  Lawyers and judges especially are aware of how badly Massachusetts has lagged behind other states in digitizing legal practice and public access to court records.

It would not be a stretch moreover to suppose that Justice Kafker was especially pained to meddle with the specific numeric qualifications for ballot access.  He was appointed to the Supreme Judicial Court in 2017 by Governor Charlie Baker, a Republican.  In the course of his career, Justice Kafker served as deputy legal counsel to Governor Bill Weld.  A past Libertarian candidate for Vice President and outsider Republican candidate for President, Weld was challenging President Donald Trump for the 2020 Republican nomination until Weld suspended his campaign on March 18. Republicans identify with formalism in constitutional interpretation, and Libertarians identify with judicial restraint in rule making, if also, practically, with relaxation of ballot access restrictions.

At the same time, Justice Kafker’s conclusion might readily be understood to voice widespread American anxiety over electoral integrity in general, especially in the crosscurrents of equivocal Washington reaction to Russian tampering.

The case is Goldstein v. Secretary of the Commonwealth, No. SJC-12931 (Mass. Apr. 17, 2020).  Chief Justice Ralph D. Gants authored the unanimous opinion.

Report from a Social Distance: Week 4

Dispatch from a scapegrace stuck in a rabbit warren

"Black Rabbit of Inlé" by Ken Whytock CC BY-NC 2.0

Isolation is now a way of life, and the days are dissolving, each into the next.  There's a plateau in new infections in U.S. hot spot New York, but it sits at a high level of daily mortality.  Testing in the United States remains limited to detecting active infection in the symptomatic, if that, though antibody detection is being deployed experimentally.  Like in other states, Rhode Island Governor Gina Raimondo has ordered that face coverings be worn in shops and workplaces to slow down contagion.  (Another executive order refined the suspension of public meetings and records laws to balance access and lockdown.)  In times like these, as Chicago Mayor Lori Lightfoot said to Trevor Noah, "Humor is kind of the unifying thing."  In that Light(foot)hearted vein, this is what I'm up to.

TV Quote of the Week: “I didn’t believe I’d ever see my racist Aunt Ida licking up gasoline at the Arco station on Saticoy with her Filipino nurse from the Jewish Home for the aging, but it happened.  Anything is possible now.”  —Principal Burr in Daybreak s1e06

What I’m Reading

Scott Johnston, Campusland (2019) (Amazon).  Kirkus Reviews called this self-described “satire” of university life, “richly imagined.”  Well, no disrespect to Scott Johnston’s very enjoyable writing, but if I have a criticism here, it’s that what passes for parody is often less absurd than the reality.  Johnston, a New York Yalie with an eclectic background, spins a tale of PCism run amuck at a fictional elite northeastern private university from varied student, faculty, and admin perspectives.  It’s funny when Johnston depicts a “bias response” star chamber investigating a professor on contrived charges of racism, but the casual reader might not realize how on point the narrative is.  It’s equally absurd yet true when Johnston writes about a weaponized “title IX” being wielded as a verb.[*]

King Solomon
by Kristian Zahrtmann

Our church Bible reading continues in week 14 with 2 Samuel and 1 Kings.  As usual, the BibleProject has an excellent video overview of the books of Kings.  The books begin with the reign of Solomon, who, anointed as king, pleaded with God: "But I am only a little child and do not know how to carry out my duties. Your servant is here among the people you have chosen, a great people, too numerous to count or number. So give your servant a discerning heart to govern your people and to distinguish between right and wrong. For who is able to govern this great people of yours?"  1 Kings 3:7-9.  Remember when humility in leadership was a thing?

What I’m Watching

Onward (2020) (trailer).  This beautiful new story from Disney Pixar more or less skipped theaters because of the pandemic lockdown.  It’s now included on Disney+ and available to rent on other platforms.  Be prepared to reallocate some of your precious tissues to mop up tears of joy.  As usual for Disney features, the voice cast is top shelf.  Lead female roles bring together comedy legend Julia Louis-Dreyfus and Oscar winner Octavia Spencer.  Lead male voices are two Peters of Avengers fame, Quill (Star-Lord) and Parker (Spider-Man), that is, Chris Pratt and Tom Holland.

Motherless Brooklyn (2019) (trailer).  I thoroughly enjoyed this book by Jonathan Lethem (Amazon), and I'm a big fan of Ed Norton, who was born in Boston and grew up in Maryland, so I eagerly awaited this theatrical release—though not as earnestly as Ed Norton awaited it, the film adaptation being his 20-year passion project.  It did not disappoint.  Norton himself played the protagonist with a performance reminiscent of his genius alongside Brando and De Niro in The Score.  Michael Kenneth Williams, The Wire’s Omar, gets to be a mostly good guy for a change, the enigmatic “trumpet man.”  There are small but significant roles, too, for Robert Wisdom, another Wire alum (“Bunny”), and Fisher Stevens, who seems to be in everything, but whom I’ll always identify favorably with Early Edition.

Star Wars: The Clone Wars (2008) (trailer).  What do you really know about Anakin Skywalker and Obi-Wan Kenobi?  The Star Wars movies show us only dramatic highlights of their lives.  At some point, Skywalker and Kenobi, together with Master Yoda, waged war, and their bond was forged in that fire.  Such is the story of The Clone Wars, set between live-action episodes II (Attack of the Clones (2002)) and III (Revenge of the Sith (2005)).  Friends have told me for years to embrace this animated saga, and now I’m sucked in.  Best part?  Seven seasons of televised series (2008-14, 2020) followed this 2008 film, Disney+ having revived the show for a finale season this year.  So I’m going to need a clone to watch all of that.  I’m giving a miss to the earlier three-season animation (no “The” in the subtitle) that ran from 2003 to 2005; it was pre-CGI.

Watership Down (2018) (BBC trailer).  The animation is superb in this BBC-Netflix co-production.  With James McAvoy as Hazel, this four-installment adaptation is not the first to adapt to screen the Richard Adams’s 1972 classic (N.Y. Times Mag.).  A 1978 British animated film won a Saturn Award; Art Garfunkel sang “Bright Eyes” for it.  A British-Canadian animated series ran for three seasons, from 1999 to 2001, but never aired in the United States.  Two years ago, we postponed watching this Netflix incarnation because, for an animation about bunnies, it’s heavy emotional lifting.  As James Parker wrote of the novel for The Atlantic, “An unprecedented mash-up of eco-anxiety, homely bottom-of-the-garden anthropomorphism, real violence, and febrile mythmaking, Watership Down struck a nerve.”  That’s only more true of this miniseries in our present era of climate change, pandemic, and xenophobia.

The Night Of (2016) (HBO).  I’m not usually one for what is essentially a criminal procedural, even if well crafted.  But this 2016 production came recommended by a reliable source, and I couldn't resist John Turturro as a scruffy, docks-trolling criminal defense lawyer who’s smarter than anyone gives him credit for.  The show is one part Oz and one part The Practice, spiced with a pinch of The Verdict.  Michael Kenneth Williams is in this one, too, as a scary prison gang leader, and so is Fisher Stevens, who has some darkly funny scenes as pharmacist to Turturro’s eczema-afflicted attorney.

Tales from the Loop (2020) (Amazon).  We’ve just started this new release from Amazon Prime, and I’m all in.  I do not fully understand how a crowd-funded book of surreal science-fiction art by Swedish artist Simon Stålenhag in 2015 got turned into first a role-playing game (2017) and then this TV show.  I think it best not to ask too many questions.  Critics have knocked the show for being slow, and ordinarily, slow plays poorly with me.  But Legion alum Nathaniel Halpern wrote these odd and beautiful stories, and, at just e03 of 8, I’m spellbound with anticipation of more.  Halpern mixes the classical wonder of Amazing Stories Magazine with the playful ingenuity of Stranger Things to serve up a premise irresistible to those of us reared on dandelion wine.

Give it a miss:  I’ve liked Ed Helms since he worked for Jon Stewart, but, save a line here and there, Netflix's Coffee & Kareem (2020) was unwatchably unfunny.

Also out now:  We just discovered that Apple TV+ has made some of its top original content free during lockdown, so check it out.

What I’m Eating

Our Easter feast was simple but delicious: ham, potatoes, peas, and homemade bread.  My wife made my late aunt’s annual springtime-classic peach pie for dessert: brilliant, even though we could find only canned peaches.

My gifted wife also this week made chicken garam masala on basmati rice, a favorite in our house.  In the past, she has made the garam masala herself, from its component spices, but products such as McCormick’s, used here, are a satisfying convenience.

Image by BlackRiv from Pixabay

Fortunately, some Cara Cara oranges made it from tree to home: thanks to my mom and stepdad for a fortifying Easter gift.

I picked up cactus-fruit jelly in North Africa, and it’s been chilling in the fridge.  Faced with an abundance of fresh bread this week, we cracked it open.  Not bad.  Tastes like … I don’t know, cactus fruit.

What I’m Drinking

Alto Grande.  “The coffee of Popes and Kings,” this premium bean, grown in “ideal soil and climate conditions” in Puerto Rico’s mountainous interior, makes a brew too bold for the coffee novice.  We’re indebted to a family friend (Twitter) for our supply line.

Rhody Coyote Hard Apple Cider.  Celebrating Easter, we opened this harvest holdover from nearby Newport Vineyards. When things get back to normal, there's a tasting room.

Chicory Root Vodka.  The flavored liquors of Philadelphia’s Art in the Age distillery never disappoint. The New Hampshire-drawn maple syrup eclipses the chicory in this vodka, but the balance is delectably sippable.  Also a tasting room in better times.

Scapegrace Gin.  How often does a gin teach you a new word?  “Scapegrace” originated in the 18th century to mean a rogue or rascal: one who escapes God’s grace.  Unironically, the name attached to this gin when New Zealand maker Rogue Society Distilling went international and confronted Oregon-based Rogue Ales in a European trademark tangle.  Thus this small-batch brand means to make its mark with a rough-and-tumble reputation in a dark bottle that pays homage to gin’s progenitor genever.  A suite of botanicals is led by juniper.  Different accounts locate distillation in Auckland or Christchurch; either way, Scapegrace boasts water from New Zealand’s Southern Alps.  But be warned: the gold variety, which we have, packs a navy-strength punch: at 57% ABV, it’ll make you forget all the new words you just learned.  The classic silver weighs in at 42.2% ABV.  I am keen to get my paws on some of “the world’s first naturally black gin,” Scapegrace Black, 41.6% ABV.

Whom I’m Wearing

Chartwell Wealth Management.  Contact my friend Dan Harrington (LinkedIn) for financial advice in Rhode Island/South Coast.  Dan wrote the ProJo op-ed on quarantine that I cited here on the blog a couple of weeks ago, with art by Dan’s talented daughter, Grace.  This fashion choice puts me in good company: Dan’s and my friend Komlan N. Aloysh sported a Chartwell T to launch his new YouTube channel, on which he interviews “African changemakers both on the continent and in the diaspora.”


Happy birthday to my dear wife, and happy Earth Day!

Eating, Drinking, and Wearing images except oranges are mine, CC BY-NC-SA 4.0.

[*UPDATE, April 19: To give credit to the author where due: I've since finished the book, and, in an afterword, Johnston wrote that "while Campusland is written as satire, it doesn't stretch the truth by much, and sometimes not at all.  Title IX, as depicted, is true to life.  If you want some good nonfiction on the subject, I suggest Laura Kipnis's excellent (and horrifying) book Unwanted Advances [(2017) (Amazon)]."]

Lockdown tests religious freedom, responsibility

For two reasons, it pains me to see churches on the news violating stay-at-home rules.  First, like almost everyone, I'm horrified by the potential impact on people's health and lives, put at risk utterly unnecessarily.  Through the Bible, God calls on people to worship together, as a body, e.g. Hebrews 10:24-25. At the same time, as author Jon Meacham told Stephen Colbert in a terrific recent interview, during Passover and in anticipation of Easter, "Being willfully stupid is not part of the Christian tradition."

This might be an especially authentic Easter, Meacham suggested, in the sense that early Christians met in homes, e.g., Acts 12:12, and the disciples, if together, sought refuge behind locked doors after the Crucifixion, John 20:19.  Moreover, I've written previously about the biblical precedent for quarantine.

Second, these stories on the news are man-bites-dog coverage; what's being reported is aberrational, not normal.  And the truth about churches and other places of worship in this crisis could not be more poorly represented.  My church is the norm.  To protect congregants, the elders suspended our live worship service and other on-campus meetings before the law required.  We had Easter services on a live feed, and we're having classes, prayer, and meetings on Zoom.  Most importantly, we encourage and support one another, Romans 14, notwithstanding social distance.  In the absence of coordinated leadership and a functional social safety net from government, communities of faith are filling the gap, keeping people sound of mind and body.  That's the real religion story of the crisis (see also, e.g., NYT Wehner op-ed, Apr. 10).

Winston-Salem, N.C., March 20.  Photo by Breawycker CC BY-SA 4.0.

Seeing authorities in Kentucky and Louisiana effecting arrests and citing drivers at live religious ceremonies that defy government orders, I started to worry what damage these aberrational observances might do to our jurisprudence and tradition of free religious exercise.  Would this be yet another instance of #RuiningItForEveryone?  That is, if courts start making rulings that approve authoritarian government controls over even ludicrous assertions of religious freedom, the unintended consequence might be to water down religious freedom for all of us—however much I try to remain cognizant of the First Amendment's critical function in anti-majoritarianism.

A Methodist preacher on Deal Island, Md.,
probably the Rev. Joshua Thomas in the 1830s.
From Adam Wallace, The Parson of the Islands 93 (4th ed. 1872).

George Scoville, Nashville attorney and adjunct professor in political science at Belmont University, has written an excellent analysis of the present landscape in religious freedom law amid the lockdown, including explication of a recent federal court ruling in the Western District of Kentucky, and the potential application of the U.S. Supreme Court jurisprudence on Native American peyote use.  He writes:

As an initial matter, nobody contests that, under the structure of our Constitution, states have always had plenary police power to regulate the health, safety, welfare, and morals of their citizens–the simple requirement being, at least after the 1860s, that people receive due process of law before a state-sanctioned deprivation of life, liberty, or property.  On the religious liberty question, my gut reaction is that, generally speaking, “safer-at-home” or “shelter-in-place” orders that prohibit gatherings of people larger than some discrete number, or which require that people maintain a proper social distance of some discrete number of feet, are not per se constitutionally problematic.  Rather, these orders, like the criminal prohibition on peyote use that applied to all Oregonians, apply to everyone.

However, As Scoville explains, there might be room for a challenge where the due process thread of the religious freedom argument intertwines with the equal protection thread.  Thus the court in Kentucky entertained the argument that disallowing drive-through worship while allowing drive-through liquor sales was constitutionally problematic.

Read Scoville's treatment at Church Closures During the COVID-19 Pandemic (Probably) Do Not Violate the First Amendment, April 13, 2020.

[UPDATE, April 26, 2020:  Attorney Scoville has authored an op-ed for The Tennessean in which he additionally considers the potential impact of mini-RFRA litigation amid the pandemic.]

[UPDATE, May 15, 2020: The Sixth Circuit has issued an injunction allowing live church services despite the Kentucky Governor's orders.]