The Volokh Conspiracy

The case is State v. MPHJ Technology Investments Corp. (Vt. Super. Ct. filed May 8, 2013); GigaOM reports:

In a complaint filed in Vermont’s Superior Court, the state accuses MPHJ Technology — which operates 40 shell companies through a UPS store in Delaware — of violating consumer protection law by demanding small businesses buy a license or face a patent lawsuit.

“Hopefully would-be patent trolls will see this and realize that if you want to prey on Vermont businesses large and small they’re going to have a fight on their hands,” Attorney General, William Sorrell, said by phone on Wednesday.

The patents in question date from the year 2001 and involve technology for scanning documents and attaching them to an email. Despite being around for more than a decade, no one tried to enforce the patents until 2012 when ... [attorney] Jay Mac Rust began brandishing them.

The Vermont complaint explains that Mr. Rust and his friends have been sending letters to hundreds of businesses in Vermont, including non-profit groups that help the disabled, and telling them to pay $900-$1200 per employee or face a federal lawsuit....

Vermont’s lawsuit, which demands the troll pay $10,000 for each letter it sent out, is based on consumer protection laws that forbid deceitful communications....

Thanks to the Media Law Resource Center’s Media Law Daily for the pointer.

Ian Millhiser speculates about future Democratic Supreme Court nominees over at ThinkProgress, naming names. Some of the names Ian mentions strike me as very very plausible; others strike me as very very implausible. But I’m not privy to the thinking of either current or future Democratic administrations, so who knows.

Today between 4:30 and 5 PM, I will be participating in a Huffington Post Live discussion on the use of political profiling by the IRS. You can watch it live here. I will also be drawing connections between this issue and the question of racial profiling, a parallel I discussed in this post.

Tags: IRS

The bill is HB8, though there’s a Senate amendment; apparently, the Senate plans to pass the bill as amended. The bill bars the government from releasing information about who has applied for or gotten a concealed carry permit, and the Legislature certainly can impose such restrictions on the government itself. But then it also criminalizes speech by everyone else (I merge the House Bill and the adopted Senate amendment):

Absent a valid court order requiring the release of information or unless a recipient of a concealed handgun permit is charged with a felony offense involving the use of a handgun, it shall be [a misdemeanor] ... to release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit issued pursuant to this Section.

So blogging that you happen to know that a gun control advocate actually has a concealed carry permit himself would be a crime. Or say that you know someone has a concealed carry permit, and that person is sued for supposedly making death threats, or is criminally prosecuted for a felony offense involving a shotgun, or otherwise seems dangerous and unstable — mentioning the permit in publicly discussing the situation would be a crime. Mentioning applicants’ names in giving examples of cases where you think a concealed handgun permit was wrongly issued, or wrongly denied, would be a crime, too. So would talking about a person’s concealed carry permit in a biography of the person, or in a newspaper or magazine story that is trying to give a sense of the kind of person he is.

This is a clear First Amendment violation. Florida Star v. B.J.F. (1989) struck down a law banning the publication of the names of rape victims, once the information was released by the police (even when it was released in violation of department policy). This statute is thus unconstitutionally overbroad, because it has no exception for these kinds of erroneous-release situations. But even if the statute were limited to exclude information gleaned from public records, it would still be unconstitutional: It would be a content-based restriction on speech. It would apply to speech about crime, lawsuits, threats to public safety, and other matters of public concern.

And while in theory even such content-based speech restrictions might be constitutional if they are “narrowly tailored” to a “compelling government interest,” this test has rightly been extremely hard to satisfy (consider Florida Star itself). Indeed, one reason our free speech protections are so strong is that courts have been extremely hesitant to uphold speech restrictions under this test. They are thus very likely to strike down the statute — and if they do uphold it, the precedent would risk undermining free speech protection more broadly. The Second Amendment (or, to be precise, the desire to keep confidential people’s exercise of their gun rights) shouldn’t be a basis for undermining the First Amendment.

Thanks to the Media Law Resource Center’s Media Law Daily for the pointer.

There has been a lot of outrage expressed recently over the contents of an affidavit filed in support of a search warrant to search the e-mail accounts of reporter James Rosen. The government’s affidavit offered the view that Rosen violated the law by aiding and abetting the alleged violations of laws prohibiting the disclosure of classified national security information. Specifically, the affidavit stated, “there is probable cause to believe that the Reporter . . . has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter.” To some, the fact that the government would make this argument shows that the Obama Administration is engaging in a War on Journalism. According to this thinking, the Obama Administration is not only trampling on the rights of a free press by going after its sources. Incredibly, they even think of a reporter as a criminal — and are willing to say so in court.

I think you get a different sense of this affidavit if you understand the privacy laws, however, and in particular a federal law called the Privacy Protection Act, 42 U.S.C. 2000aa. It’s a pretty complicated law, so it will take me a minute to explain. But I think I can explain why the affidavit filed in the Rosen search had this language, and why claims that this language reveals a “war on journalism” are based on a misunderstanding.

Here’s the background. The Privacy Protection Act was a response to a Supreme Court decision called Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, the Supreme Court held that the Fourth Amendment permits the government to execute a search warrant at a newspaper to recover evidence of a crime that reporters had gathered in the course of investigating the news. The Supreme Court reasoned that warrants can be issued when there is probable cause to believe evidence of a crime is located in the place to be searched, and there is no Fourth Amendment principle that third-parties are exempt from such searches.

You can see the major problem created by Zurcher. If the government is allowed to execute warrants wherever the evidence is, and reporters often have to gather evidence of crime in the course of gathering news, then the government can get lazy and just raid reporters’ homes and offices to find out what the reporters have learned rather than conduct the government’s own investigation.

That problem hadn’t arisen historically because the Supreme Court had earlier adopted the “mere evidence” rule, by which the government was prohibited from obtaining warrants to collect mere evidence; the government only had the power to collect contraband, stolen goods, or the fruits of crime, which necessarily excluded searches of the offices of reporters for evidence of crime. But the Supreme Court had overturned the mere evidence rule in 1967 in Warden v. Hayden, setting up the question in Zurcher eleven years later. So the combination of Hayden and Zurcher meant that the Fourth Amendment allowed the government to target innocent reporters who just happened to to have gathered evidence of crime in the course of gathering the news.

Congress enacted the Privacy Protection Act just two years after Zurcher. The Privacy Protection Act is pretty complicated, and its exceptions have exceptions to its exceptions. But it contains pretty specific guidance for when the government can conduct searches to gather evidence from reporters made in the course of gathering the news in cases involving the disclosure of classified information. The rule is that the government can only do that when “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. 2000aa(a). The idea is that the government can’t gather evidence from journalists who happen to have evidence of that crime in their possession except in the rare cases in which there is probable cause to believe that the journalist is involved in the crime, too. In other words, investigators generally can’t take the short-cut of going to the press for the evidence — but when there is probable cause that the press is involved in the crime, the usual Fourth Amendment rules apply.

That brings us to the affidavit filed in the Rosen case. If you read the affidavit, it is pretty clear that the part discussing Rosen’s own potential criminality is designed to show compliance with the Privacy Protection Act. Here’s paragraph 46, the key paragraph that has caused so much concern:

Based on the above, there is probable cause to believe that the Reporter (along with Mr. Kim) has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter, and that the evidence of crime is likely to be contained in the [ ]@gmail.com account. Accordingly, the FBI’s request to search the contents of that account falls squarely within section 2000aa(a)’s exception permitting searches of media-related work product materials, even when possessed by a national news reporter because there is “probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. 2000aa(a).

The first sentence in that paragraph has caused a lot of anxiety among reporters. But the first sentence is just the set-up for the second sentence, in which the affidavit explains that this matters because it triggers the exception under the Privacy Protection Act. (For a discussion of the underlying criminal law, and in particular the interesting question of whether the laws on disclosing national security information can apply to reporters under the First Amendment, see this excellent post by Eugene.)

I am only making a narrow point, I should stress. I am not arguing that investigators made a good decision when it obtained Rosen’s e-mail. I am not expressing a view about whether the Privacy Protection Act’s exception is too broad, or what the law or policy of criminal investigations involving the media should be. My point is just that the controversial language in the affidavit shouldn’t be read out of context. That language was necessary to demonstrate compliance with a privacy law Congress enacted to provide safeguards for the press.

UPDATE: I tried to stress the narrowness of the post, but it seems I have failed. Let me try again. Different people have voiced different objections to the investigation of Rosen’s e-mails. Some have argued that the investigation is wrong because the government should not obtain evidence from journalists — or at least e-mails — at all. Others have argued that the affidavit is troubling because it reveals DOJ’s apparent view about substantive law that a journalist who asks a source to disclose classified information with the goal of publishing it has committed a federal crime.

This post is responding to a different argument: That the fact of labeling a journalist a criminal in a court filing demonstrates an effort to intimidate the press and further a “war on journalism” by treating journalists like criminals. See, for example, this CBS News story today from Jan Crawford. The argument I’m responding to (as seen in Crawford’s piece) is that labeling a journalist a criminal reflects a hidden motive to intimidate reporters. My sense is that an awareness of the relevant law puts a different perspective on the language, as the motives behind developing a point in an affidavit that is required under the law may be different from developing a point gratuitously when it is not required by law. When a point required by law is developed in an affidavit, it may have been added with the relatively simple motive of complying with the law.

Respondent in NLRB v. Noel Canning, 12-1281, the case seeking review of the D.C. Circuit’s judgment invalidating the President’s recess appointments of several NLRB members, has filed its brief respecting certiorari–five days early, no less, probably to ensure the Court has time to consider the case before leaving for summer recess.  As anticipated, respondent does not oppose certiorari, noting  the case “presents a constitutional question of extreme importance” (Noel Canning Br. 9) that warrants Supreme Court review.  That position is not a surprise: The Noel Canning case was brought by the U.S. Chamber of Commerce, which has an interest in not simply preserving its victory in the D.C. Circuit, but in achieving definitive nationwide resolution.

Noel Canning proposes that in addition to the two questions presented by the government’s petition, to wit:

1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.
2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during the recess.

the Court should consider a third question, which the D.C. Circuit did not reach because it invalidated the appointments on other grounds:

3. Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

Noel Canning argues that addressing only the questions posed by the government “could potentially leave the validity of the ‘recess’ appointments at issue unresolved.”  Noel Canning Br. 9.

It will be interesting to see what the Government says in its reply brief (which we’ll be seeing no later than June 4) about the proposed third question. The Court frequently says it is a “court of review, not of first view,” and the government may argue that question should be left for the D.C. Circuit on remand; but then again, given how much litigation the NLRB recess appointments have spawned, it may be happy to have the Court resolve the validity of the appointments once and for all.
Continue reading ‘Noel Canning Recess-Appointments Case: Battle Is Joined’ »

Interesting commentary in The Atlantic Monthly on the rising cost and decreasing quality of higher education:

HIGHER education has long been
growing more rational. Yet there is
a widespread feeling of discontent with
the present ideal of academic culture
which sometimes degenerates into down-
right pessimism. It must be conceded
that education costs too much time and
too much money for the kind. The col-
lege curriculum should be still further
transformed in order to bring it into
harmony with the requirements of mod-
ern life. Our average standard of at-
tainment is very low, and the reason is
plain, we have wasted our resources.

George E. Howard, “The State University in America,” The Atlantic Monthly (March 1891).

According to Bloomberg the Chippewa-Cree tribe in Montana has refused to comply with a CID from the CFPB based on the illegality of the non-recess appointment of Richard Cordray as Bureau director:

Under Dodd-Frank, the bulk of the bureau’s authority to supervise banks with assets above $10 billion, a group of about 110 that includesJPMorgan Chase & Co. (JPM) and Lafayette, Louisiana-based Iberiabank Corp., doesn’t require that a director be in place. Without a director, though, the agency couldn’t extend its supervision to non-bank financial firms, including online payday lenders.

The uncertainty has helped slow the bureau’s attempts to scrutinize online lending businesses operated by Native American tribes, according to two people briefed on the probe who spoke on condition of anonymity because the matter isn’t public.

Companies operated by the Chippewa-Cree tribe in Montana, the Tunica-Biloxi tribe of Louisiana and the Otoe-Missouria tribe of Oklahoma last year were sent civil investigative demands, a kind of subpoena for business data, the people said.

Tribal Challenge

“The purpose of this investigation is to determine whether small-dollar online lenders or other unnamed persons have engaged or are engaging in unlawful acts or practices relating to the advertising, marketing, provision, or collection of small-dollar loan products,” according to a copy of one of the documents obtained by Bloomberg News.

The Chippewa-Cree challenged the request in part on grounds Cordray’s appointment was illegal. Cordray hasn’t acted on the petition, which could require him to address the constitutional question, the people said. By contrast, when three other companies filed similar petitions, Cordray published responses within 90 days, records show.

James Hopper of the Otoe-Missouria company, Billi Anne Raining Bird-Morsette of the Chippewa-Cree firm and Marshal Pierite of the Tunica-Biloxi lender didn’t respond to requests for comment. Vahey, the bureau spokeswoman, declined to comment on an ongoing enforcement matter.

One expects that as some CFPB targets begin to challenge CFPB’s authority on the basis of the invalid appointment of the Director that this will embolden others to also say that the emperor has no clothes.  This is important for the important constitutional principles at stake, of course, and the importance of structural constitutional protections for individual liberty.  But it also potentially important in the event that if the circuit court opinions eventually are affirmed by the Supreme Court (as I expect they will) a consistent pattern of objection and resistance by private parties is an important element of the de facto office doctrine (this is a useful summary) that might be used to try to ratify the acts that CFPB has taken.  In this vein, Congressman Hensarling’s consistent public challenges to the validity of the CFPB’s powers without a confirmed director would seem to be relevant to the application of the doctrine as well.

David Post faulted Justice Scalia’s footnote 1 in Monday’s City of Arlington v. FCC (see also this follow-up), so I thought I’d mention my own thought on the subject, because I think there’s actually a useful lesson to law students there.

The footnote, which accompanied a sentence that began, “In July 2008, CTIA—The Wireless Association,” stated:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

And my sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

I’m not sure why Justice Scalia thought it necessary to make such a point in this case; maybe he’d seen similar things in other briefs and hadn’t mentioned them then, but this time he thought he ought to say something. But my sense of his point is simply, “Counsel, make things easy on us — if you use a term we don’t know, define it.”

UPDATE: For a related complaint about overuse of abbreviations, see this Legal Times item quoting Judge Laurence Silberman.

Today Lois Lerner was called to testify before a House Committee about the recent scandal involving the IRS targeting conservative groups for extra scrutiny. Before the Committee, Lerner was invited to make an opening statement. Her opening statement included the following:

On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.

On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report. In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

And while I would very much like to answer the committee’s questions today, I’ve been advised by my counselto assert my Constitutional right not to testify or answer questions related to the subject matter of this hearing.

After very careful consideration, I’ve decided to follow my counsel’s advice, and not testify or answer any of the questions today.

Because I’m asserting my right not to testify, I know that some people will assume that I’ve done something wrong. I have not.

Under questioning, Lerner then authenticated answers she gave I.G. investigators about what had happened during the investigation. But she refused to make additional statements.

The Chairman of the committee, Darrell Issa, has argued that Lerner’s statement and her authentication of her earlier statements waived her Fifth Amendment right and that he can call her to testify again without Fifth Amendment protection. A lot of people are wondering, is Issa right? Did Lerner waive her rights so she could not then assert them?

I don’t think the answer is clear, as there are no cases quite like it. The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999):

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that.

I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today (based on press reports of what Lerner said, not the full transcript) to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.

UPDATE: I have updated the post to include more from the transcript of the hearing.

The credibility of NGOs like Human Rights Watch depends on their being above and apart from the conflicts they monitor – to not take sides. Human Rights Watch has been criticized by many, including its founder, for giving up all objectivity an adopting an anti-Israel campaign.

Their grudge against Israel has been clear for a while, and David Bernstein has written about it frequently here.

Now, we find evidence of direct personal animus. A news story reveals a private Facebook group whose members include a medley European journalists, NGO officials, and far-left activists. Recently the group turned to discussing an Israeli government report that the famous killing of a Palestinian boy at the start of the Second Intifida was in fact staged. Not only was he not shot by Israel, as much prior evidence suggested, he appears not to have been killed at all. (It would not be the last time Palestinians elaborately staged deaths for PR purposes.)

The issue is not the IDF report, but the comments made about it by Peter Bouckaert, HRW’s Emergencies Director (responsible for civilians in wartime, according to his twitter page). He wrote: “Typical IDF lies. As usual, it takes them a long time to really build up the falsehood.”

He goes on the complain that the New York Times coverage of the Israeli report will be used by supporters of Israel.

I previously criticized HRW for releasing reports on alleged Israeli crimes without waiting for the IDF’s comments - now we know: why wait for a “typical lies” that just build up the more time they get? Seriously, HRW should reveal what reports the “emergencies director” was involved in writing.

Academic writing on human rights and international law often treats groups like HRW as custodians of the truth, and accepts their claims without much further scrutiny. That practice is methodologically unsound.

UPDATE: Buockaert is apparently responsible for the HRW report on the 2nd Lebanon War, entitled “Why the Died,” which accuses Israel of war crimes largely based on relies on (favorable) credibility judgements regarding Lebanese testimony about whether certain targets were Hezbollah sites. The report also admits significant errors in earlier report (that doesn’t make them lies!).

Tags: Human Rights Watch, Israel, Palestine

Here’s an interesting new application of Florida v. Jardines (March 26, 2013), which recently held that bringing a drug-sniffing dog up to the front door of a home for a “sniff” of the front door area is a Fourth Amendment search. In this morning’s decision in Powell v. State of Florida, officers went up to the front door of a mobile home and knocked. When there was no answer, they took a step off the front steps and peered through a window at eye level about two feet from the front steps. Peering in, the officers saw marijuana growing under lamps in the home; they later obtained a warrant based on that viewing and searched the home.

The state intermediate court held that peering into the window was a Fourth Amendment search that required a warrant. Going up to the front door and knocking was fine, but peering through the window off of the front steps was not okay under the Jones trespass/intrusion test:

The deputies . . . deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.

The court notes that the Jones trespass/intrusion test is the easiest way to resolve the case: “Cases involving warrantless searches of the home or curtilage may be somewhat easier to analyze under the intrusion approach because the property interests are generally better defined.” (The court also concludes that the Jones test is best characterized as being about physical “intrusion” not “trespass.” See Footnote 3.) The court also holds that this was a search under the Katz privacy test:

Similarly, the State’s evidence lacked any indicia that the privacy of the mobile home’s kitchen area had been diminished by its occupants. No evidence exists that Powell or Wilbourn knowingly exposed the interior of their home where the plants were located to the public view or impliedly licensed the general public to peer in their front window from a foot away. No evidence was presented that the kitchen area (where the plants were located) could be seen from the public roadway, from the pathway leading to the front door, or from the front door itself. Instead, the plants could only be seen from outside the home by stepping away from the front door, placing officers within a hand’s width of the window pane, casting their view rightward at an acute angle. As in Olivera, Powell and Wilbourn “could reasonably expect that no one would observe or overhear [their] activities” from just outside their window.

It’s true that the window was right near the front door. But the fact that the officers stepped off the front porch meant that it exceeded the implied permission of the homeowners:

We cannot agree . . . that stepping off a porch, even a few feet, onto portions of the curtilage where persons are uninvited and then looking into the home at a sharp angle from a hand’s length away from the window pane is anything other than an impermissible intrusion into constitutionally protected space. Whether two feet or twenty, the distance between the door and window matters little given that the officers said they could not see the plants without leaving the front door step and positioning themselves at a spot where they had no right to be.

Does that sound like a fine line? Well, welcome to the fact-sensitive Fourth Amendment:

That said, we can envision front door configurations that have windows incorporated directly into their designs through which a visitor might be able to see the interior using no unusual means or devices. This case simply does not involve such a situation. Under certain circumstances, implicit permission may exist to look through an un-curtained window while standing on a front porch momentarily to see whether the resident is approaching the door, assuming no unreasonable means or devices are used.

Thanks to several Florida lawyers for sending on the opinion — including among them Howard Blumberg, who argued and won Jardines.

Slate columnist Farhad Manjoo has an interesting article arguing that conservatives are right to complain about the IRS’ use of political profiling, but argues that they should use the same reasoning to rethink their support for racial profiling in law enforcement. As he points out the IRS justification for political profiling is very similar to standard arguments for racial profiling in combatting terrorism and crime:

Pretend you work at the Internal Revenue Service... Every day, a big stack of files lands on your desk.... Each file represents a new application for a certain tax status—501(c)(4), a tax-exempt designation meant for “social welfare” organizations. Nonprofits with this status aren’t required to disclose the identity of their donors and they’re allowed to lobby legislative officials. The catch is that they must limit their political campaign activity....

It’s your job to decide which 501(c)(4) applications represent legitimate social-welfare organizations, and which ones are from groups trying to hide their campaign activities. What’s more, you’ve got to sort the good from the bad very quickly, as you’re being inundated with applications....

So what do you do? You look for a shortcut. Someone at your office notices that a lot of the applications for 501(c)(4) status are from groups that claim to be part of the burgeoning Tea Party movement. Aha! When you’re looking for signs of political activity, wouldn’t it make sense to search for criteria related to the largest new political movement of our times? So that’s what you do...

[T]here’s a name for the kind of shortcut that the IRS’s Cincinnati office used to pick out applications for greater scrutiny: “profiling.” By using superficial characteristics—groups’ names or mission statements—to determine whether they should be subject to deeper investigation, the IRS was acting like the TSA agent who pulls aside the guy in the turban, or the FBI agents that target mosques when investigating terrorism, or New York City cops who stop and frisk young black males in an effort to prevent crime....

All these efforts rely on the same intellectual justification—looking at surface characteristics makes sense because they’re a potential signal of deeper activity, whether it’s terrorism or crime or electioneering. As a right-wing blogger might say, “Not all Muslims are terrorists—but most terrorists are Muslims....”

That’s exactly what the IRS was doing with Tea Party groups. Not all Tea Party groups applying for 501(c)(4) status were engaged in campaign politics. But out of all the many groups that applied for such status, wouldn’t any reasonable person guess that a group called “Tea Party Patriots” is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies?

The deep irony of the IRS scandal is that people on the political right are being subjected to exactly the kind of profiling that they’ve long advocated in fighting terrorism and crime—and they don’t seem to appreciate it. I’m on their side: This case perfectly illustrates why profiling is wrong...

I made a similar point several years ago when I explained the parallels between the conservative defense of racial profiling and left-wing rationales for affirmative action (see here and here). Overall, I think Manjoo is right. And if he has not already done so, he should extent his skepticism about the use of profiling to cover the affirmative action case.

But I do have two caveats about his argument. First, I am not convinced that the IRS was merely engaged in neutral profiling intended to increase the chance of ferreting out political groups. It is true that “a group called ‘Tea Party Patriots’ is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies.” But the same is true of a group called “Occupy Wall Street” or one with some other name using a standard left-wing catch-phrase. Yet there is no evidence that the IRS targeted groups with liberal code words in their names in the same way it targeted conservative ones. That suggests political bias, not just a simple effort to economize on search costs. Obviously, however, racial profiling in law enforcement often flunks the neutrality test as well.

Second, I would not go as far as Manjoo in abjuring all forms of profiling. There is a difference between profiling based on characteristics that impinge on important constitutional rights such as freedom of speech and freedom from racial discrimination by government and profiling policies that rely on less problematic proxies. The latter may also be unjust or ineffective. But they are not as objectionable as profiling based on race or ideology.

That said, I hope that the IRS scandal will indeed persuade conservatives who support racial profiling to reconsider the issue. I also hope that more liberals will apply their critique of racial profiling to affirmative action.

Tags: IRS

Last week, economist Bryan Caplan wrote an interesting post explaining why people’s virtue or lack thereof is often most evident in their unpopular views:

Consider a world where 80% of people are Conformists, 10% of people are Righteous, and 10% are Reprobates. The Conformists are epistemically and morally neutral, so they believe and support whatever is popular. The Righteous are epistemically and morally virtuous, so they believe and support whatever is true and right. The Reprobates are epistemically and morally vicious, so they believe and support the opposite of what the Righteous believe and support....

What happens? There are clearly two equilibria: one good, one bad. If the true&right is popular, then the Conformists and the Righteous have 90% of the vote, so the true&right prevails. If the true&right is unpopular, then the Conformists and Reprobates have 90% of the vote, so the false&wicked prevails.

Now suppose that in this world, you are trying to assess an individual’s virtue. In the good equilibrium, identifying the virtuous is hard. Only 1 out of 9 supporters of the status quo is genuinely virtuous. The vast majority support the true&right out of sheer convenience. Identifying the vicious, however, is easy. In the good equilibrium, all supporters of the false&wicked are vicious.

The mirror image holds in the bad equilibrium. Identifying the virtuous is easy: Everyone who supports the true&right despite their unpopularity is virtuous. Identifying the vicious, in contrast, becomes hard...

On the plausible assumption that most real-world people are basically conformists, you can’t accurately assess virtue by studying people’s views in isolation. You have to look at their unpopular views. Believing true&right things despite their unpopularity is a sign of genuine virtue. Believing false&wrong things despite their unpopularity is a sign of genuine vice.

There is a lot of truth to Bryan’s argument. For example, modern Americans deserve little credit for being opposed to slavery, because almost everyone holds that view today. By contrast, William Lloyd Garrison deserves great credit for being an antislavery activist back when it was extremely unpopular in the 1830s. I would, however, extend Bryan’s argument to separate out moral and epistemic virtue. Some people might be genuine truth-seekers willing to court unpopularity, but simply do a poor job of evaluating the truth or falsehood of particular views. Others might be very good at evaluation, but choose not to use those skills because they care more about social acceptance than truth. One could argue that the well-intentioned but epistemically incompetent person deserves greater moral credit than the one who combines the opposite set of traits.

For readers who want to evaluate me using Bryan’s test, here are some of the most unpopular views I have ever expressed here at the VC, based on their divergence from those of the average voter:

1. Organ markets should be legalized.

2. Most (though not all) public sex and public nudity should be legalized.

3. Knowledgeable children should be allowed to vote.

4. The entire War on Drugs (not just the ban on marijuana and a few other relatively popular drugs) should be abolished.

5. It is unjust to decide immigration policy without giving the rights and interests of would-be immigrants at least close to the same weight as those of current residents of the United States.

Somewhat less unpopular, but still strongly counter to conventional wisdom:

6. No one has any special moral obligations to other people of the same race or ethnicity, including members of historically persecuted minority groups, (e.g. – Jews have no special moral obligations to other Jews, blacks have no special obligations to other blacks, etc.). It is possible that this position is more popular than I think it is. I haven’t seen any systematic survey data on it, and am mostly judging based on personal experience, combined with the ubiquity of rhetoric claiming that we have obligations to “our people” and the like.

7. Nationalism is a great evil, usually causing more harm than good even in its relatively more moderate forms. The conventional wisdom, I think, is that nationalism is a generally good or at least neutral phenomenon that becomes problematic only if taken to extremes.

There are important commonalities between 1, 2, and 4 on my list, and also between 5, 6, and 7. The former stem in part from my rejection of moral arguments that draw on the “yuck factor,” at least in so far as they are used to justify making anything illegal. The latter are partly a reflection of my unusually strong skepticism about moral claims based on ties of race, ethnicity, culture, or sovereignty.

Several of the above positions are less uncommon in academia than among the general public. But most do not enjoy majority support even among academics. There are, of course, many other issues where I go against the views of the majority of academics (who are, on average, much more left-wing than I am). But most of them are cases where my view has much greater support from general public opinion than the above.

UPDATE: I have made a few stylistic changes to this post.

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a conservative for a conservative audience.  The framing above is political.  But there’s a much more neutral, less political way of framing the issue that ought equally to appeal to the broad national security center across both parties: the core elements of US counterterrorism policy, including detention policy and the whole range of what I’ve sometimes called “counterterrorism-on-offense” (including drones), needs to be put on a much firmer and more permanent basis.

Call this “institutional settlement” in counterterrorism strategy.  We need an institutional settlement around counterterrorism – we have a lot of policies that work pretty well, but they rely largely on executive branch discretion.  There are substantive reforms that need to be made in order to institutionalize counterterrorism policies, and they depend upon the two political branches coming together to give them legitimacy.  In my view there is broad agreement in the center as to these policies in substance; what they lack is a political foundation in actual legislation.  (But giving important credit, let’s note that Rep. Mac Thornberry (R-TX) has just offered legislation that would begin to address legislatively the accountability and oversight issues created by the growth of military special operations; on my first read, it looks like a very good start.)

The fault lies both with the administration and with Congress, but one way or another we today owe it to whoever is responsible for national security tomorrow to make sure that there is a stable, functional, institutionally legitimate framework going forward.  It won’t ever satisfy certain constituencies ever – a big chunk of the international community, Obama’s leftwing, or the Pauline wing of the Republican Party, which are simply at odds with the substance – but it is the pretty clear view of the broad center of both voters and this country’s leadership.  That said, precisely the fact that in the political center most everybody’s on board with the substance means that it’s hard to generate energy to give it the process, oversight, and accountability legs it needs to make its legitimacy permanent.  But institutional settlement, stability of the framework over time and administrations of different parties, matters hugely.

Certainly I hope the President’s speech tomorrow reaches out to address the needs of institutional settlement.  And I very much hope that Congress, and Congressional Republicans especially, take up the opportunity to find ways to engage legislatively – legislating as if there might be both Republicans and Democrats in the presidency.

(And thanks to John Podhoretz, editor of Commentary, for getting this June article up early in advance of the President’s speech, and for making it available free to non-subscribers.  Plus, for anyone interested, at this moment it looks as though I’ll be part of a roundtable commenting on the speech on To the Point on NPR tomorrow afternoon.)