Rap Snacks reinvents the potato chip for Americans

Mapco Rap Snacks rack.
RJ Peltz-Steele CC BY-NC-SA 4.0

Peckish in a Mapco convenience store in Memphis last weekend, I was confronted unexpectedly with a wall of provocative pleasures: rapper potato chips.

It turns out Rap Snacks has been around since 1994. It was the brainchild of Philadelphia native, Miami-based entrepreneur James Lindsay, CEO.  According to his bio, Lindsay cut his teeth in marketing in ethnic hair products. In 1994, he thought to partner with Universal Records, simultaneously capitalizing on and expanding the brands of rappers and hip-hop artists, selling chips (crisps) and quickly building a $5m company.

Recently I binged season 11 of Jared Keeso's brilliant, if not safe for work, Canadian sitcom, Letterkenny. In episode 1, "Chips," the gang debates the best potato chip. They rightly note that flavored chips were pioneered in North America by Canadians, who have long had a more diverse chip palate than Americans. Flavors such as dill, ketchup, and roast chicken have been around for decades. I remember being awed by the range of available delights when I first visited my cousins in Ontario in 1989.

The chìp de résistance of the Canadian market is the "all-dressed." Mainer Liz Provencher for Thrillist sang the chip's praises, describing its mélange: "a masterpiece of ketchup, barbecue, sour cream and onion, and salt and vinegar flavors all rolled into one chip." When the characters of Letterkenny debated the best chip, they agreed that the all-dressed would have to be excluded, or there would be no contest.

The Lil Baby "All In."
RJ Peltz-Steele CC BY-NC-SA 4.0

In recent years, the American market has at last evinced some appetite to experiment, and Rap Snacks has obliged. The colorful packaging of artist visages is complemented by a range of daring flavors. Hoping to seize on an American equivalent of the all-dressed, I selected a chip that had a lot going on. The Lil Baby "All In" chip boasts "salt & vinegar, BBQ, onion, garlic, and more."

Mmmm. The All In was Right On. Welcome to America, flavor. 

You can find Rap Snacks with the store locator, or order in bulk online. Visit the flavor booth to put your own face on a bag of chips.

Chinese aid in foreign development, Taiwan's dwindling number of allies warrant Western concern

Honduras severed ties with Taiwan and doubled down on ties with China just days before House Speaker Kevin McCarthy met in California with the president of Taiwan.

The severing of diplomatic relations between Honduras and Taiwan is an important sign for global security, well beyond the bilateral significance. The People's Republic of China (PRC) has been executing a methodical campaign to isolate Taiwan from the world, a potential preliminary step to an assertion of control that would test the U.S. pledge to defend the disputed territory.

Chinese development policy is a fascinating subject; I take it up each year in one hour with my Comparative Law class.  Evidence abounds to support disparate theories on what the PRC means to achieve with its foreign aid packages. From well meaning humanitarian goals to Machiavellian world domination: it's anybody's guess what's being said in the highest levels of Beijing briefings. I'll paste below the reading list my class used this year to get a handle on this wide-ranging sub-subject. The discussion always is the best of the course.

Around the world, I have seen the vast reach of renminbi. The infrastructure projects alone are simply stunning. Chinese flags boast of telecommunication investment in distant and dusty towns in West Africa and South America. Bridges soar in Croatia and Montenegro; dams in Thailand and Sudan. Glassy government buildings adorn capitals such as Windhoek and Harare. And then there are the ports, from Togo to Sri Lanka to Peru. That's just a sampling of what I've seen with my own eyes.

A Dutch friend working in the aid sector in the Middle East was puzzled when I first asked for his appraisal of Chinese objectives. It's obvious, he opined. They just don't say it.

He and I were in the remote Indian Ocean island nation of the Maldives in March, where I witnessed Chinese-funded projects: a shining national museum, a bridge connecting the capital to the airport island across open ocean, and a massive new airport under construction. 

The Sinamalé Bridge, or China-Maldives Friendship Bridge, links capital Malé to Hulhulé Island.
RJ Peltz-Steele CC BY-NC-SA 4.0

Velana International Airport at left; the new Maldives airport under construction at right.
RJ Peltz-Steele CC BY-NC-SA 4.0

The Maldives National Museum, Malé, opened in 2010.
RJ Peltz-Steele CC BY-NC-SA 4.0

The list of countries that have severed ties with Taiwan upon PRC quid pro quo has grown so long that it's difficult to track, and countries in Latin America and the Caribbean are well represented. I was in Paraguay last year not long after it asked Taiwan for $1bn to remain friends. Typically of countries in the mix, Paraguay is trying to play both sides for the best deal, which, in the end, probably means just using Taiwan as leverage to get the best deal from the PRC. Heritage reported in late February that Paraguay was one of only 14 remaining countries, then, still maintaining ties with Taiwan. 

Last week, Honduras renounced that club. NPR contextualized the move:

Honduras had asked Taiwan for billions of dollars of aid and compared its proposals with China's, Wu said. About two weeks ago, the Honduran government sought $2.45 billion from Taiwan to build a hospital and a dam, and to write off debts, he added....

Taiwanese President Tsai Ing-wen said her government would not "engage in a meaningless contest of dollar diplomacy with China." ....

For decades China has funneled billions of dollars into investment and infrastructure projects across Latin America. That investment has translated to rising power for China and a growing number of allies.

In Honduras, it has come in the form of construction of a hydroelectric dam project in central Honduras built by the Chinese company SINOHYDRO with about $300 million in Chinese government financing.

Honduras is the ninth diplomatic ally that Taipei has lost to Beijing since the pro-independence Tsai first took office in May 2016.

Taiwan still has ties with Belize, Paraguay and Guatemala in Latin America, and Vatican City. Most of its remaining partners are island nations in the Caribbean and South Pacific, along with Eswatini in southern Africa.

As Reuters put it in a headline yesterday, "US, Taiwan seen powerless to stem island's diplomatic losses in Latin America."

When Taiwan President Tsai Ing-wen met with McCarthy in California, she was on her way back from visiting Belize and Guatemala. Media reports tended to spin the meeting as a show of tough-on-China Republican policy. I rather assumed the view I heard from one commentator, that meeting in California was a way not to meet in Taiwan, thus, not to poke the dragon as Nancy Pelosi did.

Schooled on 1970s détente, I'm not much of an American imperialist, and these days, I'm not much of an American exceptionalist. But I do worry that we will one day wake up to find ourselves a quirky outpost of remnant democracy in a world of purported harmony under authoritarian paternity.

Here's your Comparative Law homework for two hours on law and development, including a discussion of the PRC.

Historical and theoretical:

• John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 Am. J. Comp. L. 457 (1977).

• Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45 Vand. J. Transnat'l L. 477 (2012).

Policy:

• Nic Cheeseman, Why There's a Case for Giving Foreign Aid to Authoritarian Regimes, The Conversation (Jan. 14, 2019).

Cheeseman here summarizes his remarks at a University of Birmingham debate in 2019. The whole debate is on video on YouTube, so you can watch it if you like (cued to Cheeseman, who spoke first).

PRC:

• Stephen Paduano, China's Investments in Rwanda Raise Familiar Questions About Debt, The Atlantic (Aug. 3, 2019)Deborah Brautigam & Meg Rithmire, The Chinese "Debt Trap" Is a Myth, The Atlantic (Feb. 6, 2021).

• Keith Bradsher, In Global Slowdown, China Holds Sway Over Countries' Fates, N.Y. Times, (Oct. 7, 2022).James McBride, Noah Berman, & Andrew Chatzky, China's Massive Belt and Road Initiative, Council on Foreign Relations (last updated Feb. 2, 2023).

If you'd like to dig into the numbers of Chinese development aid, have a look at the Global China Initiative at Boston University, especially its recent (Jan. 2023) policy brief.

The older BRI exists alongside more recent, if less extravagant, Chinese policies in the Global Security Initiative (GSI) and the Global Development Initiative (GDI).  The GSI and GDI raise analogous questions. If you would like comparable overviews, I recommend Michael Schuman for The Atlantic (July 13, 2022) on the GSI; Joseph Lemoine and Yomna Gaafar for New Atlanticist (Aug. 18, 2022) on the GDI (pro-Western perspective); and Professor Amitrajeet A. Batabyal for The Conversation (Aug. 4, 2022) on the GDI.

If you would like to learn more about the Chinese debt cancellations in Africa mentioned in the N.Y. Times article, there's a good and fairly even-handed article from Voice of America News (Aug. 25, 2022). One thing I have not given you here is any of the abundant statements from Chinese authorities and state-sponsored media defending Chinese policy; you can find them readily online yourself if you wish to get a flavor.

Conclusion:

Engage with this compelling perspective piece authored by a Harvard law student in 2018. Attorney Sabrina Singh is now an associate in the ESG group at Latham & Watkins in New York City.

• Sabrina Singh, Development Versus Anti-Development: Your Choice Matters, Harv. L. & Int'l Dev. Soc'y (May. 13, 2018).
  

A thanks to my Dutch friend (whom I'm not naming for security) for joining the class from the Middle East via Teams to discuss the delivery of humanitarian aid in conflict zones.

Chag Pesach sameach, happy First Contact Day

Mosaic in Netherlands, reading, "בשמאלה עשר וכבוד"
("in her left hand riches and honor") (Proverbs 3:16),
showing "Kohanim hands."
(Kleuske via Wikimedia Commons CC BY-SA 3.0)

Passover periodically coincides with First Contact Day, as it does this year, on April 5, 2023.

Passover is a major Jewish holiday, thus moves with the lunisolar Hebrew calendar. The cause for celebration is not exclusive to Judaism, as the holiday marks the Israelite escape from slavery in Egypt. Passover was on April 5 most recently in 1985, 1993, and 2004, but it won't happen again until 2069.

April 5 is also First Contact Day, a delightful celebration from the fictional Star Trek universe marking the day that earthbound humans first learn they are not alone in the universe. Vulcans revealed, or will reveal, themselves to humans on April 5, 2063, so the holiday often is identified with the Vulcan hand gesture of fingers paired and separated in a "V."

There's more connection between the two holidays than an occasional overlap on the calendar. In 1967, Leonard Nimoy, the actor who first played Mr. Spock, the famous Vulcan of Star Trek lore, borrowed the hand gesture from his Jewish heritage.  The Take explained the origin:

[Nimoy] drew upon childhood memories of Jewish synagogue services he attended with his Yiddish-speaking grandfather. The V-shaped position is the shape of the Hebrew letter "shin," which is the representative letter of the word "Shaddai," a term for God, and is a gesture traditionally used by the Kohanim (Hebrew "priests"), Jews of priestly descent, during a blessing ceremony. It’s also the first letter of "Shalom," the Jewish word for hello, goodbye, and peace.

The "Vulcan salute" (🖖) earned emoji status in 2014. Usually accompanied by the utterance, "Live long and prosper," it's not so distant a cousin of shalom.

Thanks to attorney, and my long-ago TA, Kevin Hart for being the first to wish me a happy First Contact Day, and to my friend Professor Robert Steinbuch for reminding me of the Vulcan salute's Jewish heritage.

Chag Pesach sameach, and happy First Contact Day.

Event celebrates hostelling, honors firefighters

Fire Station 2 today, a hostel and museum.
RJ Peltz-Steele CC BY-NC-SA 4.0

The extended family of the Firehouse Hostel & Museum in Little Rock, Arkansas, came together last week to celebrate accomplishment, to honor firefighters, and to raise funds for a new annex in support of fire safety education.

The event featured Razorback college football veterans David Bazzel, now a radio personality, who emceed, and Gary Robinson, 1964 national champion (then, now), who keynoted.

Gary Robinson is the younger brother of legendary Major League Baseball third baseman Brooks Robinson, a retiree of the Baltimore Orioles, who had planned to attend but could not. 

Gary Robinson and me.
RJ Peltz-Steele CC BY-NC-SA 4.0

The Robinson brothers graduated from Central High School (National Historic Site) in Little Rock. As kids, they spent time at Fire Station 2, where their father was a career firefighter. In a prerecorded video interview, Gary and Brooks reminisced over the firehouse, their father, and his co-workers.

The sporting legacy of the Robinson family is of course especially meaningful in Arkansas and in Maryland. As I lived in those states between 10 and 20 years each, I've felt a special connection to the Robinsons. My father is a big fan of Brooks, and I was a childhood supporter of the Orioles. Brooks retired in 1977, when I was six.

Linda Fordyce stirs up the crowd.
RJ Peltz-Steele CC BY-NC-SA 4.0

Long out of service and after years of neglect, Fire Station 2 provided the building that the city of Little Rock and an army of volunteers rehabilitated to serve as the hostel and museum, which opened in 2016. I worked on the firehouse hostel project as one of those volunteers until I left Arkansas for New England in 2011. I took (dubious) honors for having traveled the farthest for the event, edging out a charitable soul from Colorado who contributed more valiantly by populating two tables with local friends.

The Firehouse Hostel and Museum has been the brainchild and passion project of two extraordinary people, Linda and John Fordyce. They conceived of the hostel more than 10 years before the hostel opened in 2016, and they have shepherded the project with nothing short of parental love since. Last week they were in attendance as leaders and coordinators. With characteristic tirelessness, they now are spearheading the drive to develop the annex.

Reep introduces Benton; Bazzel looks on.
RJ Peltz-Steele CC BY-NC-SA 4.0

The Fordyces' passion for travel as cultural education, hostelling as social learning, and the merits of the firehouse as an urban redevelopment project in particular are famously contagious. I could not resist signing on and served in roles as varied as bathroom cleaning and representative to a national meeting of Hostelling International USA.  At the event last week, the enthusiasm the Fordyces still exude was palpable. Many faces I remembered from the 2010s were there and still are vitally involved, importantly including Greg Hart, who lends his accounting wizardry, and Johnny Reep, a retired fire captain of legendarily large personality.

Other presenters and honored guests included Tanya Hooks and Marvin L. Benton. Another Central High alum and a major mover in the Little Rock non-profit sector, Hooks is a board leader for the hostel and museum. Another retired firefighter, Benton is an inspiring advocate for fire safety education, especially for children, and author of a book in that vein, Unfallen Hero.

In Unfallen Hero, Benton tells the near-death, line-of-duty story of having suffered agonizing burns over 39 percent of his body. When doctors said he could never fight fire again, he told the audience last week, he lobbied his superiors for a job in fire safety education. When they questioned whether he would be comfortable appearing before audiences with his disfiguring scars, he said, he answered: "If these scars on me would save just one child, ... it will all have been worth it."

After the example of the Memphis Fire Museum, Linda Fordyce said, the Little Rock museum, with Benton in the lead, hopes to make fire safety education accessible to all children in Arkansas. Fordyce and Benton said that fires and the horrific injuries they inflict are too often easily preventable.

You can support and read more online about the Little Rock Firehouse Hostel and Museum.

Weapon of Putin's war, anti-gay law jars NHL in US

The NHL Chicago Blackhawks Sunday will host an annual Pride Night, but the team will not be wearing warm-up pride jerseys as intended, for fear of jeopardizing the safety of Russian players and their families.

Yesterday I got to talk about the story with Sasha-Ann Simons of Reset on WBEZ Chicago Public Radio. You can hear the segment online. HT @ ace producer Micah Yason.

WBEZ sports contributor Cheryl-Raye Stout related the facts and layered some nuance on the story. She expressed concern that Blackhawks staff had not consulted their three Russian players. In a Philadelphia Flyers case in January, a player refused to wear a pride jersey, citing his Russian Orthodox religion. It's unclear where the Russian Blackhawks stand.

No one disputes, though, that wearing the jerseys might be problematic for the players as a matter of Russian law and policy. In December 2022, Russia doubled down on the 10-year-old anti-gay law that was a source of controversy during the 2014 Sochi Olympics and the 2018 FIFA men's World Cup.

Under international pressure, Russia was permissive in enforcement of the law during those tournaments. But the failure of the International Olympic Committee and FIFA to reconcile their bold anti-discrimination rhetoric with host-country legal jeopardy for athletes and fans was a bad look and did no favors for human rights. More or less the same drama just played out again with the FIFA World Cup in the fall in Qatar, where homosexual acts are criminalized.

As enacted in 2013, the Russian law imposes civil fines on persons and business, and detention and deportation for foreigners, who engage in "propaganda" promoting same-sex relationships. Propaganda, though, really means any representation of social acceptability, including even the rainbow flag.

The law was enacted as a child protection measure and referred only to expression to children, though that scope encompassed mass media. In 2022, President Putin signed into law an amendment to broaden the law to cover expression to any person, child or adult, and to make plain that trans representations are prohibited, too.

Russian refugees march in New York in 2013.
Bosc d'Anjou via Flickr (CC BY-NC-SA 2.0)

Thus, a Russian athlete photographed wearing a pride jersey in America might face legal repercussions upon returning home. But the risk is really much greater than just civil fines, I explained to Simons on Reset. Informally, the law has signaled indifference by Russian authorities to brutal violence inflicted on LGBTQ persons, or even persons suspected of being LGBTQ, by vigilantes, if not law enforcement. An athlete abroad fairly might fear such reprisal upon returning home, or fear for her or his family meanwhile.

One thing I did not get to say on Reset, that I think is important, is that Putin's expansion of the anti-gay law is complementary of his war in Ukraine, because he perceives both as integral to preserving Russian identity against Western acculturation. Foreign Policy called the issues two sides of the same coin, and Putin has spoken of Western territorial aggression and social policy in the same breath. Doubling down on the anti-gay law in December was calculated as just another salvo in the war. That means, if Brittney Griner were not warning enough, that Putin is prepared to weaponize the law.

Robbie Rogers, 2013
Noah Salzman via Wikimedia Commons CC BY-SA 3.0

Our Reset discussion touched on other related matters, such as the Iranian side's protest at the Qatar World Cup, which I wrote about here in November and spoke about in Poland. I've written previously on the World Cup and sexual equality (with Jose Benavides), the World Cup and human rights, and football and development. 

A paucity of representation in top-flight world sport indicates that laws such as those in Russia and Qatar are hardly the only source of hostility toward LGBTQ athletes. In 2022, in the run-up to the men's World Cup, there was only one openly gay international footballer, and he didn't make the final cut for Australia's squad in Qatar. (There are openly lesbian players in women's world football.)

A good read in this area is Coming Out to Play (2014), an autobiography by Robbie Rogers, co-authored with Eric Marcus. An American and a Christian, Rogers played for Leeds United in the UK and for the U.S. Men's National Team. In 2013, he publicly disclosed that he is gay at the same time he announced his retirement from football, though he returned to the sport to play for four more years with the LA Galaxy in the U.S. MLS.

In wake of Stanford free speech fiasco, Duncan models civility, and dean surprises with powerful letter

Abortion rights rally at Stanford Law in 2022.
(Suiren2022 via Wikimedia Commons CC BY-SA 4.0)

After the brouhaha at Stanford Law School in which protestors disrupted a lecture by Trump-appointed U.S. Circuit Judge Kyle Duncan, Stanford Dean Jenny S. Martinez this week stood up for free speech on campus.

There are video and audio recordings aplenty on the internet if you want to learn more about what happened March 9. Here's David Lat with the play by play. For my money, the take-away is that a guest federal judge was treated disrespectfully—dare I say uncvilly?—in an effort to silence him, and even a school administrator joined in the effort. That must have been the dean's take, too, when she issued an apology to Duncan, which drew a disruptive protest of her office in turn.

Martinez's letter is masterful and worth a read for the First Amendment refresher and expression of commitment to academic freedom at even a private school. She put the protesting administrator on leave and pledged mandatory educational programming for the student body on free speech and legal professionalism. 

Frankly, I was shocked. I do not expect deans in today's legal academy to stake out clear and strong positions on, well, anything other than which way the wind is blowing.

Today Duncan appeared at Notre Dame Law School and talked about the incident. His remarks and the Q&A livestreamed and are available on YouTube. To be fair, many renditions of what went down at Stanford report rudeness from both sides, whoever struck the first blow. However so, there was none of that at Notre Dame. Duncan's remarks were unremarkable, but that struck the right tone. The thrust of his assessment was that zealous disagreement is laudable, but shouting down one's opponent or merely vituperating one's ideological adversary does nothing to enrich the marketplace of ideas. Like me here, he lauded Martinez's letter.

In a curious coincidence, and really the only reason I throw my two-cent hat into this ring, I today (at last) finished legendary lawyer Robert Corn-Revere's superb 2021 book, Mind of the Censor and Eye of the Beholder: The First Amendment and the Censor's Dilemma.  The book could not be more on point in the Duncan matter.

Mind of the Censor is chock full of engaging prose and a paean to the freedom of expression in our troubled times. But it's the final chapter that delivers the biggest bang for the buck with a delightful Jeff Foxworthy-esque list of 10 reasons to suspect "you might be a censor."  And apropos of Duncan's comments today, Corn-Revere's number 8 reads, "You Might Be a Censor if You Believe that Silencing Speech You Dislike Is the Exercise of Your Rights."

I wrote just this week about "civility" being deployed as a new, conveniently vague code word to suppress academic freedom. To be clear, I wasn't speaking against civility. The problem arises in the misuse of the word to differentiate speech one wants to hear from speech one does not want to hear.

It's OK to disagree with Duncan, indeed, to disagree vehemently. He spoke today of the challenge all judges face in remaining open to the possibility that they are wrong in their preconceptions. Civility is about respecting other people regardless of agreement or disagreement, and acting ethically, accordingly. Thus, willingness to hear challenges to our thinking is part and parcel of civility and goes hand in hand with an expectation that others will hear our challenges, too.

I'm really not wrong about this.

'Civility' is code for conformity

The Massachusetts Supreme Judicial Court two weeks ago struck down a town policy purporting to require civility in public meetings. The town policy resembles attempts to restrict academic freedom.

Board meeting, via Southborough Access Media video
(Kolenda at center).

'Civility' in Politics

In December 2018, Southborough, Massachusetts, resident Louise Barron took advantage of a public comment period at a town board meeting to call out board members on fiscal policy and, ironically, compliance with state open meetings law. Though not obliged to, board members responded. The discussion became heated, resulting in Barron calling one selectman, Daniel Kolenda, "a Hitler," and Kolenda abruptly ending the comment period and expelling Barron. (The meeting is on YouTube (cued). Read more at Wicked Local.)

Board policy provides for an open public comment period for extra-agenda items with this admonition:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the [c]hair, and all persons shall, at the request of the [c]hair, be silent. No person shall disrupt the proceedings of a meeting.

Barron challenged the policy and her expulsion under the freedom of assembly and freedom of speech provisions of the 1780 Massachusetts Declaration of Rights, articles 19 and 16, respectively. Barron forewent challenge under the younger (1791) First Amendment to the U.S. Constitution to keep the case in state court. 

And just as well. The Massachusetts Declaration is a revered document in its own right in American history and global human rights, and the Massachusetts Supreme Judicial Court has not hesitated to construe its provisions as more protective of civil rights than the federal standard. Indeed, for many years, well before I came to work in Massachusetts, I taught a public seminar on the First Amendment for the Freedom of Information Foundation of Texas and used the Massachusetts Declaration to demonstrate the close connection of FOI and assembly.

Article 19 provides, "The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."

In teaching freedom of information law, I often shorthand the constitutional context of access law as the "flip side of the coin" of the First Amendment. The idea is that the freedom of speech is meaningless, especially in the core protection of political expression, if one does not know the facts to speak about.

The coin characterization is useful, but it's not entirely accurate. The First Amendment recognition of assembly as ancillary to expression aptly indicates an interrelationship that is more an intertwining than a duality.

Board meeting, via Southborough Access Media video
(Barron at right).

In the opinion of the court, Justice Scott L. Kafker recounted Article 19's "illustrious" history.

The provision also has a distinct, identifiable history and a close connection to public participation in town government that is uniquely informative in this case. ... [Article] 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.

Our interpretation of the text, history, and purpose of art. 19 is further informed by the words and actions of Samuel and John Adams, who not only theorized and commented upon the right, but were historic actors well versed in its application during the revolutionary period, particularly in the towns. Both Adams cousins emphasized in their correspondence and their actions the importance of the right to assemble.... Samuel Adams wielded it to great effect in his attempt to "procure a Redress of Grievances" when the British governor of the colony attempted to exercise control over assemblies after the Boston Massacre.... 

More philosophically, John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed "[every] Man, high and low ... [to speak his senti]ments of public Affairs.".... Town inhabitants, he wrote, "are invested with ... the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town." .... "The consequences" of the right of assembly, in Adams's words, were that "the inhabitants ... acquired ... the habit of discussing, of deliberating, and of judging of public affairs," and thus, "it was in these assemblies of towns ... that the sentiments of the people were formed ... and their resolutions were taken from the beginning to the end of the disputes ... with Great Britain." .... Alexis de Tocqueville made a similar point in Democracy in America: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it." ....

Cousins Samuel Adams and John Adams
(via JohnAdamsInfo.com)

The court had little difficulty concluding that the town policy thus ran afoul of article 19. 

There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.

The court furthermore held the town policy overbroad and vague in violation of the article 16 freedom of speech. The case did not require the court to determine whether the First Amendment public forum doctrine applies to article 16 problems, the opinion explained. Massachusetts precedents already establish that content-based restrictions of political speech are subject to strict scrutiny. Worse, the court reasoned, the policy is viewpoint based, as it allows "polite[] praise[]" of public officials while condemning "rude[] or disrespectful[] critici[sm]."

Well reasoned as it is, the decision in Barron v. Kolenda, No. SJC-13284 (Mar. 7, 2023), does not break new ground in freedom of speech, even in Massachusetts law. And the case has been well reported with commentary, for example by J.D. Tuccille for Reason ("Let Massholes Be Massholes, Says Bay State's High Court"), and by Pioneer Legal, The New York Times, and the Brennan Center. What enticed me to write about the case is the likeness of the civility code to efforts to extinguish academic freedom.

'Civility' in the Workplace

The go-to code word on American college campuses to curb faculty freedom has been "collegiality." Introducing a 2016 report, the AAUP explained:

In recent years, Committee A has become aware of an increasing tendency on the part not only of administrations and governing boards but also of faculty members serving in such roles as department chairs or as members of promotion and tenure committees to add a fourth criterion in faculty evaluation: "collegiality." For the reasons set forth in this statement, we view this development as highly unfortunate, and we believe that it should be discouraged....

.... Historically, "collegiality" has not infrequently been associated with ensuring homogeneity and hence with practices that exclude persons on the basis of their difference from a perceived norm. The invocation of "collegiality" may also threaten academic freedom. In the heat of important decisions regarding promotion or tenure, as well as other matters involving such traditional areas of faculty responsibility as curriculum or academic hiring, collegiality may be confused with the expectation that a faculty member display "enthusiasm" or "dedication," evince "a constructive attitude" that will "foster harmony," or display an excessive deference to administrative or faculty decisions where these may require reasoned discussion. Such expectations are flatly contrary to elementary principles of academic freedom, which protect a faculty member’s right to dissent from the judgments of colleagues and administrators.

I witnessed this problem in action in those "recent years." "Collegiality" as an excuse to demand conformity was key in prompting me to write and speak in 2009 and 2010 about the importance of what I termed "penumbral academic freedom." 

Are you part of "the team" at work?
(Rawpixel Ltd via Flickr CC BY 2.0)

The problem has only worsened. In fact, I see the "collegiality" expectation as a piece of the broader problem of corporate ideology that insists on everyone being a "team player." That's the coded language designed to alienate workers who hesitate to take on extra duties or to give up personal time without fair compensation. Too long in coming, the "quiet quitting" movement is a direct response to this self-serving worldview.

Though "team speak" is not a specially academic problem, the ever more corporatized public university embraces the jargon. Routinely, I hear my work for a public entity described as "public service." The characterization is invariably paired with a demand that I take on some additional responsibility with no more, if not with less, compensation, and certainly with less compensation than a similarly skilled colleague at a private institution.

The rhetoric is exhausting. I'm not on your "team." The faculty is not my football side. The office is not my church. The institutional "mission" is not my creed. Rather, I do a job. I get paid for the job. Quid pro quo. Often, I enjoy my work, and sometimes, I'm good at it. But it's work. Then (even when the switch is merely virtual) I go home. Where I don't work for anyone else. Where I have a family and a life. Where I hope to win the lottery and quit my job.

That arrangement should be a source of pride, not shame. A public institution performing a public service is no less laudable because its staff is paid rather than volunteer. When administrators, especially handsomely compensated deans and chancellors, break out the "public service" rhetoric, hat in hand, I want to ask why they cash their paychecks, if they're so committed to "public service."

Just as I digested the court's Barron decision and commentary last week, Professor Robert Steinbuch, a (genuinely collegial) colleague at another public law school, told me about a proposed amendment to his school's selection criteria for distinguished professorships. 

Apparently, there was dissatisfaction by some faculty, I assume for the very reasons the AAUP warned, that "collegiality" was an express factor in the assessment. Thus, the law school faculty development committee proposed changes including the following (red-ink deletions and additions as in original).

In awarding named professorships, the Dean shall consider criteria in addition to a candidate's meritorious work in their particular field, including but not limited to donor specifications associated with the title, the overall mission of the law school, and continued excellence in scholarship, teaching, service, civility, and respect and collegiality as outlined in the Bowen Faculty Handbook, and established University policy, or the Association of American Law Schools Best Practices.

....

III. SERVICE & COLLEGIALITY

....

In the space provided below, please describe any additional information you wish to provide reflecting exemplary service rendered in the spirit of civility, respect collegiality and collaboration at the law school and the university level and wider recognition at the national or international level.

....

Self-Assessment: Using the categories of scholarship, teaching, service, civility, and respect and collegiality in this Application, in the space provided below, please provide a candid assessment of how you would represent this Named Professorship while you held the award.

I suppose that any candidate selected for a distinguished professorship at this public law school, like anyone commenting on the performance of public officials in Southborough, Massachusetts, before Barron, "must be respectful and courteous" and refrain from the "rude" and "personal." Faculty governance is all well and good, as long as no one is offended.

Let the revolution be quelled.

Expert explains Ecuadorean constitutional law

Ugo Stornaiolo Silva
(via Mises Institute)

An Ecuadorean lawyer and LL.M. candidate, Ugo Stornaiolo Silva thinks deeply about constitutional law and social and economic organization. Today he'll speak to my Comparative Law class.

The Constitutional Court of Ecuador has been garnering headlines in recent years with landmark rulings in areas such as indigenous rights, animal rights, and the rights of nature. I wrote here last summer about the successful habeas petition of a woolly monkey. That case followed a decision in which the court compelled the government to hear from indigenous people in the Amazon before authorizing extraction projects (before decision).

Last year Stornaiolo wrote a piece for The Libertarian Catholic (other work there) comparing the U.S. Supreme Court with the Constitutional Court of Ecuador. While the Ecuadorean court often appears to the world as a monolithic bastion of progressivism, the court in fact has an ideological divide that is analogous to, though different from, the conservative-liberal divide of the U.S. Supreme Court, Stornaiolo explained. He wrote,

[f]or instance, the Ecuadorian Constitutional Court textualist faction would be composed by President Salgado, and judges Nuques, Herrería Bonnet, Corral, with both Salgado and Corral filling in for Clarence Thomas position as the often-dissenting originalist in the Court, and Herrería Bonnet as more moderate, and its so-called "garantist" and "progressive" faction would consist of judges Grijalva, Ávila, Lozada, Salazar and Andrade, with Ávila and  Salazar filling in for Sonia Sotomayor’s position as the most activist judges, considering they have drafted some of the most controversial majority opinions of the Court in cases such that ruled on the constitutionality of cannabis recreational use, same-sex marriage, abortion and the criminality of teenage consensual sexual relations.

Stornaiolo's other work has examined comparative constitutional interpretation and the public-private divide. In the United States, Stornaiolo has been an academy fellow for the Heritage Foundation and a research fellow for the libertarian Mises Institute. I was fortunate to have Stornaiolo as a student in my American Tort Law class in fall 2022 at Jagiellonian University in Kraków, Poland, where he is studying for his LL.M. in a joint program with The Catholic University of America in Washington, D.C.

On Monday, March 20, Stornaiolo will join my Comparative Law class via Zoom to talk about the Constitutional Court of Ecuador and comparative constitutionalism in Latin America more broadly.

With fascinating developments in constitutional law afoot in Latin America and the Ecuador Constitutional Court driving the trends, Stornaiolo is a lawyer to watch.

FOI seminar shines light on transparency research

In fall 2022, students in my freedom-of-information (FOI) law seminar produced another range of compelling research papers in which they inquired into hot issues in the law of access to government.

It's been my privilege to teach a law school seminar in FOI since 2004. For other teachers who might like to include FOI in the higher ed curriculum, my 2012 casebook and companion teaching notes are now available in full on my SSRN page. Please contact me if my contemporary syllabus or other materials can be of help. I teach the law of access broadly, from state law to federal, and in all branches of government. Students moreover are encouraged to pursue research projects in any vein of transparency and accountability, including access to the private sector, which has been a focus in my research, too.

In fall 2022, my students had the fabulous opportunity to participate contemporaneously in the online National FOI Summit of the National Freedom of Information Coalition (NFOIC).  I'm grateful to NFOIC President David Cuillier and Summit Organizer Erika Benton for making our participation possible.

My fall class was joined by a number of guest speakers who vastly enhanced students' exposure to FOI law, research, and practice. I am especially grateful to Professor Alasdair Roberts, UMass Amherst, who joined us live to talk about all things FOI, from his classic book Blacked Out (Cambridge 2012) to the implications for transparency and accountability of the research in his latest book, Superstates (Wiley 2022).

I thank Professor Robert Steinbuch, Arkansas Little Rock, who joined us to discuss his tireless work as an advocate in the legislature for transparency. He now writes powerfully about transparency and accountability as a regular columnist for The Arkansas Democrat-Gazette, and he is author of the treatise, The Arkansas Freedom of Information Act (LexisNexis 8th ed. 2022). I thank Professor Margaret Kwoka, Ohio State, who took time away from her ongoing FOI research in Mexico to join us to talk about that work and her recent book, Saving the Freedom of Information Act (Cambridge 2021).

I also thank attorney Alyssa Petroff and current law student Megan Winkeler, who joined us via Zoom to talk about their FOI research.  An alumna of my FOI seminar (as well as Comparative Law) and now a judicial law clerk for the Maine Supreme Court, Petroff discussed her recent article in The Journal of Civic Information on access to information about private prisons in Arizona.  An alumna of my 1L Torts classes, Winkeler has four years' experience in negotiation and mediation training and currently is researching negotiated rule-making in administrative law.

Here are the students' ambitious projects.

Madison Boudreau, The Benefits and Drawbacks of Reform Targeting Police Misconduct. The movement to increase public access to police misconduct and disciplinary records has proven to be a beneficial and necessary step toward heightened transparency and accountability of police departments and officers. However, states that have taken strides to open up access to these records continue to grapple with the ongoing barriers to public access despite their efforts. States seeking to implement similar changes to their open records laws will benefit by remaining aware of potential drawbacks to access despite reform. In the absence of impactful reform that effectively mandates the disclosure of these records, police departments have shown to prefer to remain under a cover of darkness, their internal personnel procedures left unchecked. As a result, the cycle of police secrecy is bound to viciously repeat itself.

Aaron Druyvestein, The Rise of Vexatious Requester Laws: Useful Regulation or Evasive Government Practice? The concept of freedom of information allows anyone to request any agency record for any reason, a model that has been replicated around the world and celebrated as a necessity for promoting democracy. The underlying goals of FOI to promote accountability are contingent on the government providing a strong and efficient FOI system. However, with the dramatic increase in FOI requests in the country, brought about in large part by better utilization of technology in FOI processes, there has been an increase in the burden on administrative agencies as a result of excessive, repetitive, or vindictive FOIA requests. Since 2010, governments' responses to these burdensome requests have resulted in the creation of so-called vexatious requester laws, which are intended to mitigate the effect of these requests on agencies.

Critics of vexatious requester laws argue that the laws are nothing more than a feeble attempt by the government to undermine otherwise valid records requests under the guise of improving government efficiency and reducing requester harassment. Concerns have been expressed that the laws' reliance on ambiguous terminology such as "vexatiousness" will give agencies discretion to deny requests based on subjective and unverifiable agency determinations of the requester's intent or motives for requesting. This paper analyzes the rise and application of vexatious requester laws as seen in the three states—Illinois, Connecticut, and Kentucky—that have passed statutory provisions permitting administrative agencies to deny requests to vexatious requesters. In addition, this paper investigates the policy implications of such laws on the broader FOIA system.

Alise Greco, Read It Before You Eat It: An Explicatory Review of the 2016 Nutrition Facts Label and Balancing FDA Transparency with Consumer Comprehension and the Food Industry. As the nation recovers from the COVID-19 pandemic, it is difficult to ignore how drastically the American lifestyle has changed, especially with regard to diet and exercise. The Nutrition Facts Label (NFL), largely meant to influence and assist consumer decision-making for food and beverages, was last updated by the U.S. Food and Drug Administration (FDA) in 2016. This paper explains the 2016 NFL regulation in greater detail in light of a current need by many Americans to make informed, healthier choices based on science rather than social media or misleading, corporate-designed packaging. The FDA is put under the microscope and evaluated on its ability to balance the needs of consumers to be provided transparent, useful information and the demands from industry to make a profit.

Nicholas Hansen, Only Those Who Count The Vote Matter: A Comparative Examination of Arizona and Federal Transparency Regulations Pertaining to Election Data and Procedure and Their Impact on Citizen Confidence in Democracy. This analysis details the protections afforded under the state of Arizona’s election data exemptions under both the Arizona Open Meetings Act and the Arizona Open Records Act, and provides comparisons to the protections afforded under similar exemptions provided at the federal level. Characterizations of the election data and procedural protections for both levels of government are offered, and examinations of what information is permitted for provision under FOIA requests substantiate these characterizations. This analysis proceeds with an understanding that examinations must be confined to information that is both the subject of and relevant to either historical or ongoing FOIA requests, rather than the information made available to the public through the procedures associated with courtroom disclosures. 

This author posits that Arizona’s trend toward enforcing relative transparency when courts are compelled to examine the efficacy and validity of local election procedures might serve as a model for states whose courts are less inclined toward making such information available to the public at large. Recent lawsuits, including those associated with the largely settled controversies alleged pertaining to the 2020 Presidential election, and those suits pertaining to the use of Dominion Voting System’s voting machines substantiate this advocacy.

This analysis concludes with a determination as to whether or not Arizona’s FOIA exemptions as they pertain to election data and procedural information inspire greater public confidence than those utilized at the federal level. Also offered are policy recommendations as to how the Arizona judiciary might be able to better handle future election data and procedural controversies by utilizing the already extant tools within the FOIA rules, as well as policy recommendations for legislative reform in other states and the federal level, should local legislators and Congress see fit to implement a more transparent, more accessible system of legal procedures to deal with future election controversies.

Mitchell Johnson, Transparency and Tragedy: How the Texas Public Information Act is Being Weaponized After Uvalde, Yet Can Be Used for Good. This comment examines the Texas "law enforcement exception" under the Texas Public Information Act (PIA) regarding the mandamus lawsuit that several media outlets filed to obtain records from the Department of Public Safety (DPS) after the Robb Elementary shooting on May 24, 2022. The paper focused on the DPS, and not on another law enforcement agency at the scene of the shooting on May 24, because of the actions of Colonel Steven McCraw. Colonel McCraw, the highest ranking official in the DPS, has provided inconsistent accounts to the public of what occurred on May 24. This comment also examines the specific exceptions that the DPS claims. The DPS claims that the records that are sought for disclosure are either (1) records relating to an active investigation, or (2) records that relate to the purposes of law enforcement. The DPS’s current utilization of these exceptions is not grounded in law. No criminal investigation is taking place because the shooter is deceased. Furthermore, while Colonel McCraw has stated that his agency is reviewing his troopers’ and rangers’ actions to determine whether there should be a referral to prosecutors, criminal charges might be futile because of governmental immunity. Also, many of the records requested pertain to "basic information" of a crime that must be disclosed under the PIA. Last, the comment proposes that the PIA should be amended to incorporate case law and create a "criminality showing" if a law enforcement agency wishes to withhold documents under an active investigation exception.

Ashley Martinez-Sanchez, The New Jersey Open Public Records Act and the Public Interest in a Narrow Statutory Interpretation of the "Criminal Investigatory" Exemption. The New Jersey Open Public Records Act (OPRA) expresses a strong public policy in favor of open and transparent government. OPRA champions the idea of a citizen's right of access to government records to ensure an informed public. However, transparency is not absolute. The OPRA permits secrecy for ongoing law enforcement investigations.  Courts should narrowly read the "criminal investigatory" exemption. This paper analyzes the evolution of the exemption over the years. It further examines what the future looks like for it in the legislative and judicial context.  I reference New Jersey case law and recent events in the state to contextualize the importance of narrowly reading the exemption. Inversely, the paper suggests that a narrow interpretation of the exemption not only would impede transparency efforts, but would raise civil rights concerns, particularly for marginalized and vulnerable communities in New Jersey. 

Marikate Reese, Police Accountability: Does it Really Exist? This paper demonstrates the power of police unions, and their contracts, in limiting accountability, transparency, and access.  The contracts are the catalyst to shielding officers from disciplinary actions, limiting civilian oversight, and restricting access to misconduct records. While states, such as New York, have become more transparent with their records, the unions still dictate a large part of police procedure.  This procedure includes, but is not limited to, delay of officer interrogations, obstructing investigations of misconduct, and destroying disciplinary records.  The procedures are safeguards put in place by collective bargaining practices, law enforcement bills of rights, and civil labor law protections.  The overall purpose of these safeguards is to establish rights, protections, and provisions for law enforcement officers including the arbitration process, training standards, and process of investigation. This paper provides a brief coverage of the protections afforded by collective bargaining, police bills of rights, and civil labor laws that stand in the way of the public transparency barriers and racial injustice.  Furthermore, this paper addresses how these procedural protections limit accountability while taking a look at the existing laws among various states.  This paper suggests several ways states have made strides for accountability and what limitations might arise as a result.

James Stark, What's the Deal with Doxing? Doxing is an entropic issue plaguing today’s society. Defining what it means to be “doxed” has been a problem that’s compounded by the fact that not all forms of doxing are equal. Some play a useful role in public discourse, while other forms of doxing enable harassment of private citizens. The current anti-doxing laws can be summed up in three categories. First are the “incidentals,” which tend be older laws that just incidentally happen to address doxing in some way due to the language used. The second category is “Daniel’s Law,” which is a law that has picked up traction for trying to protect public officials from doxing and its harms. Lastly are the “general” statutes, which were crafted to specifically fight doxing in general and protect as many people as possible from doxing. In order to properly combat doxing, legislatures need to agree that doxing is the unwanted release of personal or identifying information about an individual as a form of punishment or revenge, and that it can affect anyone, in government or not. The legislatures must focus on creating “general” statutes, and tailor the laws to protect the individuals, while allowing discourse around public officials. A poorly written anti-doxing law will result in either censorship or inadequate protection of individual Americans.

Marco Verch Professional Photographer via Flickr CC BY 2.0

Chad Tworek, Public But Private Athletic Departments. This paper address the Florida state policy that allows public universities to designate their athletic departments as private, thus evading the records requests for which compliance is required for any other public agency. In Florida, there are athletic departments at public universities that are private. While they are not funded by the university, they still act as an agent of the university and are afforded the same protections as public universities. If anyone is to sue these departments and seek to claim damages, there is a statutory cap on damages, $200,000. The cap pertains because courts find them to be mere components of the public entities they serve. Yet protection from public records requests allows these departments to accumulate money in secret and to spend without accountability. Such organization of athletic departments is moreover occurring elsewhere in the United States. The impact is to keep the public in the dark about how these arms of government do business.