Federal Appeals Court Strikes Down Ballot Selfie Ban
Score one for democracy! On Wednesday, the U.S. Court of Appeals for the 1st Circuit invalidated New Hampshire’s ballot selfie ban, holding that the prohibition on photographing and publicizing one’s ballot violates the First Amendment. Two federal judges have already ruled that ballot selfie bans, which at least 25 states have adopted, violate constitutionally protected freedom of expression. The 1st Circuit’s ruling marks the first time a federal appeals court had ruled on the matter, and the opinion is a resounding victory for both free speech and democracy.
New Hampshire purported to adopt its ballot selfie ban in order to prevent voter fraud and coercion. The sweeping law forbade any citizen from taking “a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.” But the ban did not stop thousands of voters from posting a picture of their ballot on social media, often accompanied with political commentary. So New Hampshire decided to target three voters who posted ballot photographs to Facebook or Twitter, along with text praising or criticizing certain candidates. The voters sued, arguing that the law infringed on their First Amendment rights.
In a unanimous opinion, the 1st Circuit vigorously agreed that the New Hampshire law could not withstand constitutional scrutiny. The court chose to accept that the state really had enacted the law to combat voter fraud, not stifle expression. But the court still found that the statute restricted “core political speech,” and therefore must be “narrowly tailored to serve a significant governmental interest.”
9/11 Families Can Now Sue Saudi Arabia in U.S. Courts
The House and Senate voted Wednesday to override President Obama’s veto of legislation allowing families of those killed in the 9/11 terrorist attacks to sue Saudi Arabia. The controversial bill—which Obama and legal experts warned could have serious unintended repercussions for the United States—will now become law.
The congressional override was the first of Obama’s time in office. The House voted 348–77 in favor, with only 18 Republicans and 59 Democrats siding with the president. The Senate vote was 97–1, with Harry Reid all by his lonesome in the upper chamber. Here’s the New York Times with more on the legislation's somewhat strange bipartisan history:
The bill’s triumphant journey came without significant congressional debate or intense pressure from voters, but rather through the sheer will of the victims’ families, who seized on the 15th anniversary of the attack and an election year to lean on members of Congress. That effort was aided by the fact that members’ collective patience with the kingdom has waned in recent years. …
[T]he override underscored the inherent smallness of Republican victories against Mr. Obama since seizing the majority in Congress in 2015. The veto override, while thrilling to many Republicans, came on a bill that was far from the Republicans’ self-identified priorities of unraveling the health care law and pushing back on government regulations. Nor was it a measure they had hoped to secure with the president’s help, like overhauling the tax code or passing a major trade agreement.
The bill—the Justice Against Sponsors of Terrorism Act, or JASTA—gives the victims’ families the right to sue the Saudi government in U.S. court for any role it may have played in the 2001 attacks, which were carried out primarily by 19 al-Qaida hijackers, 15 of whom were Saudi nationals. Previous attempts by the American families to sue Saudi Arabia were derailed by a law that severely limited U.S. courts’ ability to hear cases against foreign governments. With JASTA passed, now foreign governments can be held liable for aiding terrorist groups, even if that aid doesn’t occur on American soil.
There are two major problems with that, according to opponents of the effort, which Slate’s Mark Joseph Stern detailed earlier this year. For starters, it will complicate the United State’s already complicated relationship with Saudi Arabia. But it also risks opening the door for foreign governments to return the gesture by amending their own laws to allow their citizens to sue the U.S. government and its employees in foreign courts. That would cause quite the headache for Washington given how active the United States is abroad with everything from drone strikes to foreign surveillance to backing foreign militias. Shortly after Congress voted to ignore those concerns, which were voiced repeatedly by the White House, a group of 28 senators released a letter urging the Senate leaders to "appropirately mitigate those unintended consequences" now that they’d forced the original legislation through.
97 senators vote for JASTA, then 28 of them write a letter expressing alarm about its “unintended consequences.” https://t.co/Jub69M5qbC— Sahil Kapur (@sahilkapur) September 28, 2016
Donald Trump Reportedly Failed to Pay Attention During His Debate Prep
Donald Trump got off to a relatively strong start during Monday’s presidential debate, but quickly unraveled from there. During much of the contest, the GOP nominee failed to parry attacks (from Hillary Clinton) or answer questions (from Lester Holt) that you didn’t need to be a high-priced political consultant to know were coming. And why, exactly, did Trump seem so unprepared on stage? Apparently, because he was. The New York Times has the details of a debate crash course that never came close to reaching full speed:
Mr. Trump’s debate preparation was unconventional. ... There were early efforts to run a more standard form of general election debate-prep camp, led by Roger Ailes, the ousted Fox News chief, at Mr. Trump’s golf course in Bedminster, N.J. But Mr. Trump found it hard to focus during those meetings, according to multiple people briefed on the process who requested anonymity to discuss internal deliberations. That left Mr. Ailes, who at the time was deeply distracted by his removal from Fox and the news media reports surrounding it, discussing his own problems as well as recounting political war stories, according to two people present for the sessions.
Rudolph W. Giuliani, the former New York City mayor and a friend of Mr. Trump’s who has been traveling with him extensively, took over much of the preparation efforts by the end. But with Mr. Trump receiving so much conflicting advice in those sessions, he absorbed little of it.
Those members of Team Trump who spoke anonymously to the Times made a handful of other excuses as well, including the candidate’s packed schedule and the large number of what the paper diplomatically called “voluble people on his prep team.”
If Trump wants to avoid a repeat performance next month, it stands to reason he’ll need to make some changes to the process and show up at the next debate more prepared. Remarkably but unsurprisingly, however, those same staffers and advisers who are blaming Trump’s lack of practice for his poor performance don’t seem all that positive their man is willing to change—or even if he believes he needs to change. “Before his advisers can shape Mr. Trump’s performance for the next debate,” the Times reports, “they need to convince him that he can do better than he did in the first one.”
Before Monday, that would have read to me as one more example of the Trump camp intentionally lowering expectations for their man. Today, though, I’m willing to believe they may be telling the truth.
Witless Pharmacy Claims It Has Constitutional Right to Sell Execution Drugs Anonymously
Mississippi would very much like to execute Richard Jordan and Ricky Chase. It would also like to keep certain aspects of their executions a secret—specifically, the drugs used to kill them, as well as the suppliers of those drugs. But recent history counsels that when states use secret execution drugs, inmates get tortured to death. So Jordan and Chase subpoenaed Missouri, which currently holds the execution drugs, to find out information about the chemicals that will soon stop their hearts. Missouri has spent months waging a legal battle against the subpoena, so far unsuccessfully. Now the pharmacy that produces the lethal chemicals has joined the fight, arguing in court that it has a First Amendment right to sell execution drugs—anonymously.
As BuzzFeed’s Chris McDaniel and Chris Geidner report, the pharmacy—which uses the pseudonym M7 in court filings—insists that its production and sale of these drugs qualifies as constitutionally protected “political speech.” M7 argues that its “decision to provide lethal chemicals” for execution was based on its “political views on the death penalty, and not based on economic reasons.” In other words, the pharmacy claims that it sells the drugs to express its support of capital punishment; the money is just a bonus. (That’s a curious assertion given that, as McDaniel has reported, the state egregiously overpays M7 for the drugs, paying the pharmacy in cash well above market value—possibly in violation of federal tax law.)
Why, exactly, should the sale of lethal chemicals be protected by the Free Speech Clause of the First Amendment? M7 declares that the sale of these drugs:
is an expression of political views, no different than signing a referendum. Thus, M7’s actions in expressing its views regarding the death penalty through the sale of lethal chemicals, which necessarily involves communications and speech, are protected under the First Amendment.
Moreover, the pharmacy argues, the fact that its “expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights,” because “expressive materials, speech and associations do not lose their First Amendment protection merely because they are offered for sale.” And because the First Amendment protects a speaker’s anonymity when the disclosure of its identity will subject it to “threats, harassment, or reprisals,” M7 claims that Jordan and Chase’s subpoena must be quashed.
There are two reasons why this argument is really, really stupid. The first, lucidly explained by Bloomberg’s Noah Feldman, is that M7 isn’t engaged in any kind of real First Amendment expression. Yes, certain conduct can be sufficiently symbolic to merit free speech protections, and for-profit corporations have a First Amendment right to engage in information-related commercial transactions. But M7 isn’t doing any of that. It’s merely selling a drug to a state for a sizable profit, a quintessential act of commercial conduct rather than an exercise in symbolic expression. As Feldman puts it, M7 cannot “protect its actions from regulation simply by insisting that it is performing them out of political belief.” If it could, then almost any seller could escape regulation by citing some political motivation behind its business—from a drug dealer (“I’m supporting legalization!”) to a coal miner (“I’m opposing Obama’s Clean Power Plan!”).
But there’s a second, even better reason why M7’s argument is so astoundingly moronic: Even if selling execution drugs were an act of constitutionally protected speech, M7 would have absolutely no right to “express” its support of the death penalty anonymously. While there are some very limited circumstances in which the Constitution protects anonymous speech, this is indisputably not one of them. M7 believes otherwise, equating its plight today to the NAACP’s quandary in the 1958 Supreme Court case NAACP v. Alabama. There, Alabama ordered the NAACP to turn over its membership list. The NAACP refused, fearing (correctly) that Alabama was targeting its organization because of its political activity—using disclosure laws to unmask its members, expose them to attacks, and scare them into quitting the group.
The Supreme Court unanimously sided with the NAACP. It reasoned that mandatory disclosure would violate NAACP members’ freedom of association, penalizing their “advocacy of particular beliefs” by opening them up to the “threat of physical coercion.” But the ruling was narrow, protecting anonymity only where groups or speakers require secrecy in order to express themselves without severe reprisals. Since then, the court has stuck with this principle, generally limiting the right to anonymous expression and association to situations in which disclosure would subject individuals to serious harassment or retaliation.
M7 insists that, if unmasked, it will be persecuted much like NAACP members would’ve been persecuted in civil rights-era Alabama. It claims that drug suppliers face real threats of violence for providing execution chemicals, asserting that this history of intimidation proves the pharmacy has a constitutional right to anonymity—just like the NAACP. But as McDaniel explained in August, M7’s claim is bogus: Execution drug providers don’t face violent retaliation or abusive harassment; they just face the kind of boycotts and shaming campaigns that have already persuaded more than 20 major pharmaceutical companies to stop selling execution chemicals.
And that is the ultimate irony—or hypocrisy—of M7’s First Amendment claim. The pharmacy says it is engaging in political speech, when really it wants to avoid the kind of classic political expression that has so effectively driven most execution drugs off the market. M7 doesn’t want to promote free speech; it wants to hide from it. And soon enough, when the courts reject its plea for anonymity, M7 will get to see what good old-fashioned First Amendment speech actually looks like.
Fewer Refugees Are Entering Europe. That’s Not a Good Thing.
An estimated 302,149 migrants and refugees have entered Europe by sea so far this year, according to the International Organization for Migration, a significant drop-off from last year when there had already been more than half a million by this time.
But that doesn’t mean that the crisis has abated. Fatalities among Mediterranean refugees currently stand at 3,501, up from 600 at this time last year, with 2016 on pace to be the deadliest year yet.
Most of the drop-off in arrivals is the result of a deal struck between the EU and Turkey, under which the Turkish government agreed to take steps to prevent refugees from reaching Greece and the Balkans in exchange for aid to deal with the massive refugee population within its own borders and other concessions. Since the deal, which was heavily criticized by human rights groups for leaving migrants stranded in Turkey and the Middle East went into effect, daily arrivals in the EU have dropped from 1,700 before the deal was implemented in March to about 85 in June. Since Friday, the IOM has recorded only 51 arrivals in Greece.
However, traffic on the much more dangerous Central Mediterranean route from North Africa to Italy is nearly unchanged since last year and accounts for the vast majority of the fatalities, including the 29 killed when a boat carrying 600 capsized off the coast of Italy last week. This is less a matter of migrants shifting from one route to another than that the central route has been unaffected by recent policy changes. The number of refugees and migrants stranded in Greece and the Western Balkans is also up 50 percent since March, when the EU-Turkey deal went into effect.
The deaths of refugees may once have stirred the compassion of the public in Europe, but with the crisis dragging on and anti-immigrant parties gaining ground throughout the EU, changes in policy seem unlikely. The European Commission stated Tuesday that the emergency border checks set up by several countries in the union are still necessary, even if the number of arrivals is down. Europe has resettled just 4,500 of the 160,000 refugees that were meant to be shared among European countries under a deal reached last year. The rest remain stranded in camps. Adding to the mess, Hungary appears almost certain to reject participation in the resettlement scheme in a referendum this weekend.
The United States, meanwhile, has actually exceeded the fairly paltry goals it set for admitting Syrian refugees last year, and the Obama administration has pledged to admit 110,000 total refugees in the next 12 months. Unfortunately, the crisis itself shows little sign of abating any time soon. The collapse of this month’s attempted cease-fire in Aleppo will only add to the number of people fleeing Syria, and the planned upcoming battle to retake the Iraqi city of Mosul from ISIS is expected to uproot more than a million people.
This problem isn’t going away.
Arizona Republic Backs First Democrat in 126-Year History With Mic Drop Endorsement of Hillary Clinton
The Arizona Republic newspaper has never, in its 126-year history, endorsed a Democrat for president—until Tuesday. The staunchly conservative editorial board of the reliably red state daily stressed its “deep philosophical appreciation for conservative ideals and Republican principles” before it noted “this year is different” and declared its support for Hillary Clinton for president. “The 2016 Republican candidate is not conservative and he is not qualified,” the endorsement reads. “That’s why, for the first time in our history, the Arizona Republic will support a Democrat for president.”
The endorsement, while not a full-throated backing of Clinton’s left-leaning policy prescriptions for the country, does not read as a reluctant or half-hearted declaration of support. The editorial board eviscerated Trump, much the same way the Union-Leader and some mainstream Republicans have criticized his bigoted run for the presidency as showing “a stunning lack of human decency, empathy and respect” and for being “beneath our national dignity” before cataloging its unprecedented support for Clinton. The thrust of the editorial board’s support is based on Clinton’s character, decency, temperament, and experience:
The challenges the United States faces domestically and internationally demand a steady hand, a cool head and the ability to think carefully before acting. Hillary Clinton understands this. Donald Trump does not. Clinton has the temperament and experience to be president. Donald Trump does not. Clinton knows how to compromise and to lead with intelligence, decorum and perspective. She has a record of public service as First Lady, senator and secretary of state. She has withstood decades of scrutiny so intense it would wither most politicians. The vehemence of some of the anti-Clinton attacks strains credulity.
The unusually lengthy endorsement only briefly touches on Clinton’s well-covered mistakes, but then offers a comprehensive point-by-point comparison between the candidates that decimates Trump’s temperament and decision-making, as well as his unhinged foreign policy proposals. The paper also disavowed Trump’s immigration rhetoric and ideas. “Arizona went down the hardline immigration road Trump travels,” the editorial reads. “Arizona understands that we don’t need a repeat of that divisive, unproductive fiasco on the national level.” Here's the kicker:
In a nation with an increasingly diverse population, Trump offers a recipe for permanent civil discord. In a global economy, he offers protectionism and a false promise to bring back jobs that no longer exist. America needs to look ahead and build a new era of prosperity for the working class. This is Hillary Clinton’s opportunity. She can reach out to those who feel left behind. She can make it clear that America sees them and will address their concerns. She can move us beyond rancor and incivility. The Arizona Republic endorses Hillary Clinton for president.
The whole thing is worth a read really. Check it out here.
Anti-Defamation League Classifies White Nationalist Favorite “Pepe the Frog” Online Hate Symbol
The Anti-Defamation League, on Tuesday, designated the cartoon character “Pepe the Frog”—an online favorite of white supremacists of the alt-right—an online hate symbol. Also known, as the “sad frog meme,” the character started innocently enough in 2005 as a character with the catchphrase “feels good, man” in the online cartoon Boy’s Club and did not have any racist or anti-Semitic undertones.
Donald Trump’s presence and rhetoric in the 2016 election, however, have emboldened the alt-right, which has appropriated the image as an anti-Semitic, racist meme. “Images of the frog, variously portrayed with a Hitler-like moustache, wearing a yarmulke or a Klan hood, have proliferated in recent weeks in hateful messages aimed at Jewish and other users on Twitter,” the ADL notes. “In June, ADL added the (((echo))) symbol to the Hate on Display database after members of the so-called ‘alt right’ started using the triple parenthesis symbol to single out Jewish journalists and users on social media for harassment.”
Earlier this month, Donald Trump Jr. posted the above image of the “Pepe the Frog” meme on Instagram. While the image began well within the mainstream, the evolution of the character began as a dog whistle to white nationalists, but its use has become more and more explicit and if used in the context of the U.S. election, it is almost without question that the symbol is an act of bigotry.
Today’s Trump Apocalypse Watch: A Flower Grows in a Bleak Wasteland
The Trump Apocalypse Watch is a subjective daily estimate, using a scale of one to four horsemen, of how likely it is that Donald Trump will be elected president, thus triggering an apocalypse in which we all die.
Friends, things were pretty bad last night at about 9:20 p.m.. Hillary Clinton had entered the first presidential debate in a virtual tie with Donald Trump, and she started it badly, failing to effectively rebut Trump's well-delivered argument that she's sold out American workers in trade deals. But, thank Debate Jesus, Trump then started unraveling himself on issues ranging from President Obama's birth certificate to the Iraq war to his history of misogyny. All Clinton had to do to take home the consensus victory was keep her composure, deliver the kind of ego-baiting criticisms that set Trump off, and demonstrate a basic command of issues like community-police relations and the value of military alliances. She did, and she came out ahead in most observers' eyes.
Now, we wait to see how much that will help in the polls. The best guess (i.e. Nate Silver's guess) is two to four points; it's also worth noting that more people watched this apparently lopsided debate than have ever watched one before. So, for today, the danger level is going down.
More People Watched Trump Lose Monday Night’s Debate Than Watched the Seinfeld Finale
It’s (almost) official: Monday’s presidential debate between Hillary Clinton and Donald Trump was the most watched debate in U.S. history, according to early figures released by Nielsen on Tuesday afternoon. Via the New York Times:
Preliminary figures from 12 national networks showed an average viewership of 83.8 million, ahead of the 80.6 million that tuned in to the 1980 debate between President Jimmy Carter and Ronald Reagan, the previous record-holder. The estimated size of the audience is expected to be revised by Tuesday evening, when Nielsen announces a more definitive count.
Even with a looming revision, the Clinton-Trump clash appears a safe bet to top the first and only time Carter and Reagan squared off on stage 36 years ago. That televised contest was the only other debate in U.S. history to crack the 70 million mark in Neilson’s ratings. The next most-watched debate was the second three-man battle between Bill Clinton, George H.W. Bush, and Ross Perot in 1992, which had an estimated 69.9 million viewers.* Monday’s viewership, meanwhile, far surpassed the 67.2 million who were watching when President Obama turned in a dud in his first debate against Mitt Romney in 2012.
Obviously, the Clinton-Trump show had the considerable advantage that there are more Americans alive now to watch debates than were around in years past. Still, the 83.8 million figure is staggering. It represents roughly a quarter of the current U.S. population. For comparison, meanwhile, based on the early estimates, more people watched Trump become unglued Monday night than watched: Johnny Carson’s final turn as host of the Tonight Show (50 million); the season finales of Friends (66 million), Seinfeld (76 million), and The Fugitive (78 million); and any of the first 15 Super Bowls, which ranged from 39.1 million for Super Bowl II to 78.9 million for Super Bowl XII.
Trump, however, can console himself knowing that Monday’s viewership didn’t approach the 115 million people who watched the Seattle Seahawks throw away Super Bowl XLIX in the closing moments of the game, or the 105 million who watched the finale of M.A.S.H.
*Correction, Sept. 28, 2016: An earlier version of this post misstated the year of the Clinton-Bush-Perot debate. It took place in 1992, not 1997.
Actually, Trump Should Skip the Next Two Debates
Although it's unlikely that Monday night's debate at Hofstra University will completely upend a terrifyingly close contest between Hillary Clinton and Donald Trump, the first head-to-head event of the season was almost certainly the best thing that has happened to Clinton in well over a month. With two debates remaining between the candidates, the question is: Should Trump actually attend the remaining showdowns?
This was, at least, the question Trump surrogate Rudy Giuliani’s floated Monday night, when he said:
If I were Donald Trump I wouldn’t participate in another debate unless I was promised that the journalist would act like a journalist and not an incorrect, ignorant fact checker.
Lester Holt did fine Monday night, but Rudy’s right. If Trump were to do what he normally does and distinguish the interests of himself and his country, he would skip the rest of the debates. Canceling would prompt some bad press and even (briefly) more concerns about his suitability for the presidency. But that’s preferable to two more nights like the one he had on Monday, especially since the American people have repeatedly proven, both before and during the rise of Trump, that they don't care as much as one might think (or hope!) about the violation of political norms. For this unfortunate reason, declining to debate Hillary Clinton again might just be Trump’s best strategy.
Momentum may not exist in politics or even sports, but try convincing an anxious news junkie of the former and see how far you get. After a successful convention and a number of missteps by her opponent, Clinton had been flailing recently, with concerns about her health and ethics somehow overshadowing the fact that she is running against a vile authoritarian. The Hofstra debate, however, was a clear-cut victory for her. Not only did she appear calm and steady despite Trump's repeated interruptions and nonsensical outbursts; she also deftly attacked his birtherism and business practices, thereby preventing him from ever developing a rhythm for his (powerful, one suspects) theme on her as symbol of the status quo.
Would another debate be much different? Decoding whether Trump is capable of doing something, such as preparing for the next debate, is always a difficult task, so it's near impossible for any nonphilosopher or nonexpert in the mechanisms of the universe and freewill to say whether Trump "could" have prepared for last night's debate or “might” be capable of doing so next time. What is certain is that he didn't, and as the night wore on his answers got closer and closer to gibberish, his lack of knowledge strikingly apparent. I don’t see that changing.
But it isn't just the debate that hurt Trump; it's the cycles that follow. Perhaps Clinton's most successful attack featured Trump's reportedly cruel treatment of a former Miss Universe, Alicia Machado, who (she claims) he fat-shamed two decades ago. But what might have been a debate night story is still going strong the next day; the candidate, predictably unable to help himself, went on television Tuesday morning and shamed Machado some more, telling Fox News that she “gained a massive amount of weight, and it was a real problem.”
Can his campaign withstand the repercussions of two more bad performances and the resulting effect on his psyche? And why should it? As painful as it is for pundits and television executives to admit, skipping the debate is probably the right thing for Trump to do. There remains very little evidence that Americans punish politicians for procedural decisions, even if they violate long-held norms. (Yes, John McCain endured some bad press when he suggested postponing a debate with Barack Obama because of the financial crash. But Trump pulled out of a primary debate, to little effect.) And there’s months of evidence that Trump can survive without a single strong debate performance. If he has been more successful over the past month, it is in part because he has appeared only in venues, such as Fox News, that are friendly and controllable.
As occasionally ridiculous as they are, the debates remain one of the better ways for viewers to learn about the candidates. If Trump walks away, he just might benefit. And as is always the case when he benefits, everyone else loses.