2019-09-14 10:30:33

If you are a glutton for punishment, you might want to check out Netflix’s show Bonding. The off-beat romantic comedy follows the adventures of Tiff, a psychology grad student who moonlights as a dominatrix, and her newfound assistant Carter as they navigate the ups and downs of New York City’s BDSM scene.

The show is not devoid of charm. It’s often funny and occasionally touching. Still, Bonding can’t help but beat viewers over the head with its message, making the show painfully cartoonish at times.

Our protagonist Tiff is supposed to prove, contra your stereotypes, that one can be both a diligent academic and a successful sex worker. That’s fine. But the heavy-handed show demonstrates this by depicting her studying flash cards labeled “sexism” or “misogyny” while decked out in her dominatrix gear.

That a sadomasochistic-themed rom-com exists at all is noteworthy. However hokey, Bonding is a good illustration of society’s increasing acceptance of alternative lifestyles. The fetishes it portrays attract little of the shame or stigma in real life that they once did. Collisions between the hero’s seamy side gigs and her vanilla life cause more confusion than scandal. That’s a win for tolerance if a loss for drama.

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One of the best things about the otherwise tedious Super Bowl broadcast earlier this year was the debut of a mildly amusing, medieval-themed Bud Light beer commercial that attacked rivals Miller Lite and Coors Light over the latter two’s use of corn syrup as an ingredient in their respective brewing processes.

“Bud Light,” one such ad closes. “Brewed with no corn syrup.”

That is, by all accounts, a true statement. But it’s also one that helped spur MillerCoors, which brews (as its name implies) Miller Lite and Coors Light, to file a federal lawsuit in Wisconsin against Bud Light brewer Anheuser-Busch.

The Bud Light ad, court documents state, “claims that Miller Lite and Coors Light are ‘made with’ or ‘brewed with’ corn syrup.” All parties to the lawsuit agree that MillerCoors uses corn syrup as an ingredient in brewing both Miller Lite and Coors Light.

The crux of MillerCoors’s claims against Anheuser-Busch, then, is that “when viewed as a whole, [the advertisements] deceive[] consumers into believing that Miller Lite and Coors Light final products actually contain corn syrup and thus are unhealthy and inferior to Bud Light.”

Corn syrup, a glucose-based sugar, has become a much-derided food ingredient. That’s due to the fact it’s a type of sugar but, more so, to its relation to high fructose corn syrup (also known as HFCS, a sweeter mix of glucose and fructose). Indeed, MillerCoors claims Bud Light is using the relationship to “exploit or further misconceptions about corn syrup and high fructose corn syrup.”

The MillerCoors complaint also claims in part that Bud Light “fails to inform consumers” that Miller Lite and Coors Light don’t brew beer with HFCS and that when consumers buy Miller Lite or Coors Light, the products they buy contain no corn syrup.

The MillerCoors complaint centers on a deceptive-advertising claim under the federal Lanham Act. The basic premise underlying the Lanham Act’s application here is that if a company’s communications (advertising, marketing, packaging, and the like) intentionally mislead the public in such a way that harms that company’s competitor(s), then the competitor(s) may seek redress under the law.

MillerCoors has asked the court to issue an injunction and award monetary damages.

In May, U.S. District Court Judge William M. Conley granted some of what MillerCoors has sought. He issued a preliminary injunction that barred Budweiser from implying in its advertising that Miller Lite—as sold to consumers—contains corn syrup.

Now, in a brief order issued last week, Judge Conley has upped the ante, extending his injunction to Bud Light’s packaging, which has included the words “no corn syrup” printed on packaging and store displays.

“With this ruling, we are holding Bud Light accountable for their actions, and we will keep holding their feet to the fire every time they intentionally mislead the American public,” MillerCoors CEO Gavin Hattersley said in a statement that was reported by The New York Times last week.

Anheuser-Busch, hardly cowed, immediately appealed the ruling and debuted two new ads.

“MillerCoors[] has publicly acknowledged that Miller Lite and Coors Light are both brewed with corn syrup,” a company spokesperson said in the wake of the ruling. “We publicly acknowledge that Bud Light is brewed with no corn syrup. These are simply the facts on which everyone agrees. Not only are we appealing this decision, we will continue providing consumers with the transparency they demand, including by informing beer drinkers that Bud Light is brewed with no corn syrup.” 

University of Pennsylvania Professor Yoram Wind, an expert hired by MillerCoors to study the impact of the Bud Light advertisements on consumers, noted that most of his study participants who saw an ad believed both that Miller Lite and Coors Light use corn syrup in the brewing process and that there is corn syrup in the Miller Lite and Coors Light you drink.

Did Bud Light intentionally mislead consumers by making truthful statements? The court has said the strongest argument made by MillerCoors is that the record shows Anheuser-Busch “was both aware of and intended to exploit consumer concerns about corn syrup (and high fructose corn syrup in particular).

Any such confusion appears to have been stoked thanks to comments made by senior Anheuser-Busch staffers. Andy Goeler, head of marketing for Bud Light, said in discussing the ad campaign that “consumers generally don’t differentiate between high fructose corn syrup and corn syrup, and that it is a major triggering point in choosing brands to purchase.” Another senior Anheuser-Busch official, the lawsuit states, said beer drinkers don’t want to “put[] something like corn syrup, if they had a choice, into their body.”

Those comments are undoubtedly disingenuous, a defect the Bud Light ad itself also suffers from. After all, other beers, ciders, and beverages produced by Anheuser-Busch do, in fact, contain corn syrup.

There’s little doubt Bud Light is capitalizing on consumers’ growing aversion to HFCS. But is that against the law? Why shouldn’t Bud Light use truthful statements to mock its competitors if it so chooses? Sure, the cans of Miller Lite and Coors Light your dad buys contain neither HFCS nor corn syrup. But they’re both brewed with the latter. That is factually true. Was the Lanham Act really intended to prohibit literally true statements, to punish those companies that make such statements, and to protect companies that feel victimized by the truth? I think not.

That’s why this case borders on the preposterous. If anything, MillerCoors should direct its ire (if not its attorneys) at the senior Anheuser-Busch employees who may or may not have disparaged Miller Lite and Coors Light. Better still, MillerCoors should take its fight with Bud Light to the court of public opinion. Instead of complaining about Bud Light’s ads, MillerCoors should respond with a campaign of its own. Hopefully, they’ll see the lite.

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2019-09-17 16:10:19

Calligraphy is a form of expressive speech, and therefore the city of Phoenix cannot compel a local studio to create wedding invitations for same-sex couples, Arizona’s highest court ruled yesterday.

The Arizona Supreme Court determined, 4-3, that any attempt to use Phoenix’s ordinances to punish Breanna Koski and Joanna Duka of Brush & Nib Studio for refusing to create custom wedding invitations for gay couples who were getting married violated both the state’s constitution and its Free Exercise of Religion Act.

The contours of Brush & Nib Studio v. City of Phoenix are similar to others we’ve seen about whether bakers or florists could be forced under anti-discrimination laws to provide their goods and services to same-sex couples even if they have religious objections to recognizing or celebrating these weddings. Is the baking of a wedding cake or the arranging of flowers an expressive act and, therefore, protected speech?

In this case, the judges were assisted by the fact that the product that Brush & Nib provides is unambiguously a form of speech. The company prepares custom invitations requesting the recipients to celebrate and honor the couple’s pending nuptials. They’re explicitly describing how awesome it is that the couple is getting married. So if they have a religious opposition to recognizing and celebrating such marriages, then they’re being forced to craft a message that compromises their beliefs.

That’s just not acceptable, the justices ruled. Justice Andrew Gould wrote the court’s opinion, heavily laden with references to previous state and federal court precedents on issues of compelled speech and commerce. The decision notes that not all business activity includes expressive speech, but that tattoos parlors and video game companies, for example, sell services and products that have been ruled to be protected free speech: “A business does not forfeit the protections of the First Amendment because it sells its speech for profit.” While not all that Brush & Nib does falls under First Amendment protections, their custom invitations do:

Each custom invitation created by Duka and Koski contains their hand-drawn words, images, and calligraphy, as well as their hand-painted images and original artwork. Additionally, Duka and Koski are intimately connected with the words and artwork contained in their invitations.…For each invitation, Duka and Koski spend many hours designing and painting custom paintings, writing words and phrases, and drawing images and calligraphy. Moreover, they insist on retaining artistic control over the ideas and messages contained in the invitations to ensure they are consistent with their religious beliefs.

The justices determine that these invitations are much like that of the tattoo artist, and therefore Duka and Koski cannot be forced to make custom invitations for same-sex couples.

Note the emphasis on “custom.” The ruling is also very clear that the shop cannot just turn away gay people or couples who want to purchase other goods or services from Brush & Nib—they do not have blanket permission to discriminate against gay customers.

Representatives for the city said they’re looking for possible grounds to appeal. This might be difficult because, though the ruling repeatedly invokes the First Amendment and Supreme Court precedents, it’s actually based on the state’s constitution and state statutes, not federal law.

Eugene Volokh and Dale Carpenter, contributors to The Volokh Conspiracy hosted here at Reason, partnered with the Cato Institute to submit an amicus brief in support of Brush & Nib’s right to refuse to provide custom wedding invitations to gay couples. Volokh and Carpenter took the opposite position as Cato (and the Reason Foundation, which publishes this site) in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court case from 2018 that focused on whether bakers could be forced to make a wedding cake for a same sex couple. For those who missed that case, the court ultimately dodged the issue, ruling 7-2 that the Colorado Civil Rights Commission failed to serve as a neutral arbiter in the case and its members expressed religious animosity when making its decision. The justices declined to determine whether or not the creation of a wedding cake was a form of expressive speech protected by the First Amendment. Volokh explained why he disagreed with Cato and the Reason Foundation’s position a year ago in our magazine.

Last night, Carpenter weighed in on yesterday’s ruling at The Volokh Conspiracy:

Along with a million or so other Americans, I am in one of those marriages the calligraphers condemn. Free speech used effectively by gay-marriage advocates convinced large majorities of Americans to support the cause. Those supporters can criticize the calligraphers on theological, philosophical, and political grounds. And of course, they can readily (and, I assume, happily) take their business elsewhere. But those whose very calling is to put pen to paper should not be required—on pain of government-imposed fine, jail, or loss of their livelihoods—to speak in violation of their consciences.

Read the ruling here.

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This is installment five in a series of posts about a new paper, The Mischief Rule. One question many readers have is whether the mischief rule is just purposivism. Indeed, Scalia and Garner define the mischief rule as a British term for purposivism, but that is incorrect, both historically and analytically. Here I’ll give a few paragraphs on this question from the introduction. But if you want more, there’s a subpart of the paper on the distinction between the mischief rule and purposivism, and there’s also a subpart on Scalia and the mischief rule (especially in the way he reads Oncale in his “Reading Law” book). As the paper shows in more detail, textualists can use the mischief rule with a good conscience. And textualists should, because the mischief can provide context and occasion for understanding the legislative decision embodied in the text (i.e., as pragmatics, and as suggesting a tacit domain quantifier–the “no beer in the fridge” example from the footnotes).

At any rate, here is a preliminary account of the differences:

Yet the mischief rule has largely dropped out of the discourse of American legal scholarship—why? The most likely answer is simply that the rule is thought to be equivalent to purposivism. But consider a simple theory of action, which is not meant to be philosophically robust but rather to illustrate the distinction between mischief and purpose. There are certain things that spur us to consider acting. Spurred on, we act. But we do so not like a coracle, buffeted by the waves, rudderless and unpaddled. Instead we have reasons for our actions. But the expression “such and such was my reason for acting” is ambiguous. It could refer to the initial cause, the spur to acting. Or it could refer to the aim (or ultimate aim) that I had for acting. Both are, in a sense, my “reason.” Yet they can be assigned different locations in this sentence: “Because of a, the action b, so that c.” That ambiguity in my “reason” is precisely why the difference between mischief and purpose is usually obscured. The mischief is the spur, the “because of.” More technically, for law, the mischief is the problem that precedes the statute and the legal deficiency that allowed it; the mischief is what the statute responds to. The purpose imputed to the legislature is an aim going forward.

There will be instances of convergence between the mischief and the purpose, instances in which the purpose is no more than the removal of the mischief (“because of a, the statute b, so that not a“). Yet there will often be more than that mere convergence; the imputable purpose will often be an extrapolation from the evil to something more abstract. Hart and Sacks are themselves quite clear on this point. They add a crucial step: the interpreter starts with the mischief and then from it infers “the general purpose.” That step is significant. It makes the mischief grist for the mill of purpose. That additional level of abstraction is indeed valuable if a judge sees her role as faithfully interpreting a statute in a way that fulfills the legislature’s policy aims (a standard purposivist conception). But it would be an error if a judge sees her role as faithfully interpreting a statute so as to carry out the policy embodied in the statute itself (a standard textualist conception).

Because this Article attempts to give the mischief rule a discrete existence, it is of course true that I am sharpening the contrasts between the mischief and an array of adjacent and overlapping concepts, including purpose, the equity of the statute, and so on. What is at issue is not mere legal taxonomy, but rather a critical question about the role of context in legal interpretation. Statutory interpreters of all stripes say that context is important, but textualists, especially, will sometimes in practice limit the relevant context to laws (i.e., other provisions of the same statute, other statutes, and background principles of law). This Article argues for a broader understanding of context that includes the setting of the legal enactments, one aspect of which is the mischief.

Finally, even though I’m not usually including footnotes in this series of blog posts, here is one:

Put differently, it is true not only that statutory language is context-sensitive (i.e., dependent for its meaning on pragmatics as well as semantics, see Bach, supra note 6), but also that it is sometimes context-sensitive in a very specific way: to understand the words, the interpreter needs to understand the mischief.

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2019-09-14 21:10:08

Say that you tell something in confidence to your spouse, and in a future criminal or civil case the spouse is asked to testify about that statement. Under American law, you generally have the privilege to bar such testimony (and your spouse can likewise refuse to provide it). That’s similar to how American law treats confidential statements to lawyers, to psychotherapists, or to clergy members. Many states recognize some exceptions, especially for domestic violence prosecutions, but that has been the general rule.

New Mexico, though, just rejected that rule a couple of weeks ago (in State v. Gutierrez). Part of its rationale was the general principle that the law is entitled to every person’s evidence, and that privileges should therefore be viewed skeptically. Another part was that the practical arguments for this privilege (promoting free communication between spouses) are empirically questionable. I have no firm opinions on these aspects of the analysis, or on the broader privacy questions; I think they are difficult matters on which reasonable minds differ.

But a big part also seemed to be what the court framed as a feminist argument—and one that in this instance strikes me as quite misguided, largely for reasons described by Justice Ivey in the dissent. (I find many feminist arguments to be quite sound, but just not this one.) Consider it for yourselves, though; here is Chief Justice Judith Nakamura’s majority opinion:

Rule 11-505(B) NMRA, New Mexico’s spousal communication privilege, provides that “[a] person has a privilege to refuse to disclose, or to prevent another from disclosing, a confidential communication by the person to that person’s spouse while they were married.” This privilege “prohibits one spouse from testifying as to conversations or communications with the other spouse made in confidence during their marriage.” The privilege protects confidential communications at the time they are made and may, therefore, be invoked after the termination of the marital relationship….

The administration of justice is coextensive with the pursuit of truth, and but for certain well-defined exceptions, all persons can be compelled to appear in court and give testimony to accomplish this end. Limitations on this fundamental rule shall be recognized “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence” produces a “public good” that transcends “the normally predominant principle of utilizing all rational means for ascertaining truth.” … We thus consider whether the spousal communication privilege promotes “sufficiently important interests to outweigh the need for probative evidence.” …

More than one hundred and eighty years ago, the United States Supreme Court described the policy concerns giving rise to the spousal communication privilege in the following manner:

“This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of those domestic relations, that constitute the basis of civil society; and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence.”

The[se] principles … developed into what most commentators characterize as the traditional justification for the privilege: it “is needed to encourage marital confidences, which confidences in turn promote harmony between husband and wife.” The traditional justification for the privilege is considered to be an instrumental or utilitarian rationale because it views the privilege as a way to promote “the public good” by protecting the marital relationship.

In addition to the traditional justification, a variety of humanistic and privacy arguments have been offered to support the spousal communication privilege. Unlike the traditional justification, which views the privilege “as a means of promoting the public good,” the privacy and humanistic “theories focus on the value of protecting individual rights.”

One such justification offered for the spousal communication privilege is that it eliminates the ” ‘natural repugnance’ ” that would necessarily flow from forcing a person to testify against a spouse. Leading treatises surmise that this “matter of emotion and sentiment” has, in fact, been “the prime influence in creating and maintaining” the spousal communication privilege.

The protection of informational privacy and avoidance of unwarranted governmental intrusion are offered as alternative justifications for the privilege. This “rationale recognizes that it is morally repugnant to require the disclosure of certain private information or to force an otherwise honest and decent person to choose among betraying his or her spouse, lying, or going to jail.” One federal court quite persuasively made the case for the privacy justification for the privilege.

“Over at least the past decade, the circle of privacy surrounding each of us has drawn smaller with each new governmental incursion and each new technological advance. Courts have sought to preserve inviolable some small island of privacy as a refuge for the human spirit where government may not intrude. Here the question is whether one such sanctuary, protected by the common law for centuries, shall be breached, rendering the secrets told to wives by husbands fair game for government investigators.”

The United States Supreme Court has recognized that married people have a constitutional right to privacy in their intimate relationships. Thus, commentators have relied on this right to privacy to conclude that “the abolition of the [spousal communication] privilege would offend the spirit of the constitutional guarantees.” …

[But w]hen scrutinized, the traditional justification for the spousal communication privilege is not as forceful as it may initially seem. One of its principal weaknesses is that it rests on two untested assumptions: that (1) married people know the privilege exists, and (2) they rely on it when deciding how much information to share. Critics argue “that there is no empirical evidence to support [these] factual assumptions.” …

In a relationship involving a layperson and a professional [such as a lawyer or a psychotherapist], the absence of a privilege protecting confidentiality could chill beneficial communication because the layperson might refuse to communicate with the professional. And in a professional relationship that depends heavily on confidentiality, “there is an evidentiary wash—while evidence might be excluded at trial pursuant to a privilege objection, but for the privilege the evidence would not have come into existence.” Unlike communication between a professional and a layperson, communication between spouses does not depend on a legal guarantee of confidentiality and does not come into existence because of that guarantee….

As with the traditional justification, questions have been raised as to whether the privacy and humanistic rationales are sufficient to justify recognition of the spousal communication privilege. For example, Wigmore argued that the natural repugnance people feel about compelling one spouse to testify against the other is nothing “more than a sentiment” and that sentimental feelings do not justify interference with courts’ truth-seeking function. Others have “argued that married couples no longer care about privacy as it was supposed they did in an agrarian society.” The increasing frequency with which modern Americans share their marital and familial problems with a public audience provides “contemporary confirmation for the claim that marital privacy is no longer an esteemed value.”

To the extent that protecting marital privacy is a legitimate goal of a rule of evidence, the spousal communication privilege has been criticized as inadequate and under-inclusive. As the privilege has been construed to protect only those “interactions through which one spouse intends to convey a message to the other,” the privilege does not apply to “some of the most personal and intimate interactions between spouses.” For instance, the privilege would not permit a spouse to decline to testify as to whether his or her spouse uttered inculpatory remarks in their sleep or if they exhibited other irrepressible behaviors like nervousness, tiredness, or illness. This is significant as “it is precisely at these private moments when the social mask is removed, and a spouse engages in unguarded, unfiltered behavior[.]”

This point highlights the obvious fact that marriage is a very different endeavor and involves communication quite distinct from that which occurs in a relationship between laypersons and professionals, like doctors and lawyers. Married couples necessarily engage in a nearly unlimited range of possible communicative acts the spousal communication privilege might never reach. Communication between laypersons and professionals, on the other hand, “are essentially and almost exclusively verbal in nature, quite unlike marriage.” So, while the efficacy of the privileges protecting the communications between laypersons and professionals seems quite sensible and self-evidently efficacious, the efficacy of the spousal communication privilege to protect and foster frank communication between spouses appears, in contrast, quite doubtful.

Critics have also looked to the ancient origins of the spousal communication privilege and its disparate gender impact to argue that the privilege has outlived its purpose…. [M]odern theorists have attacked the spousal privileges and the familial privileges more generally as relics of “ancient origins” that should be a “source of scorn rather than admiration” and derided these “sentimental relics” as patently incompatible with the modern and “changed social context” of present society (internal quotation marks and citation omitted …. Blackstone described the legal principles—which by contemporary values can only be deemed misogynistic—that coincided with the creation of the privilege as follows: “By marriage the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage or at least is incorporated or consolidated into that of the husband.” These words make obvious why some commentators suggest that “the most serious concern about the privilege is its disparate gender impact[.]”

Despite drastic changes in law and society since Blackstone’s day, “the spousal communication privilege perpetuates the role of male domination in the marriage because a husband usually invokes the privilege to prevent his wife’s disclosure of confidential communications, thereby benefitting men more often than women.” … “[I]n practice, marital privileges are more likely to protect male confidences than female confidences” and [there is] evidence that indicates that ninety percent of spousal privilege cases involve wives testifying against husbands ….

Feminist scholars have vigorously attacked the privilege suggesting that it was “created to protect men, who are often reluctant to share their personal thoughts and therefore may need the assurance of protection that the privilege rules supply, rather than women, who are more likely to decide to confide in others independent of the evidentiary safeguard.” They contend that “privacy is frequently used as an excuse to isolate the family from interference by the state, perpetuating traditional gender hierarchies and power imbalances.” The rhetoric of “privacy,” these theorists contend, simply ignores the fact that women are all too frequently the victims of a pernicious form of unseen and “private” violence and that appeals to privacy have rhetorical value in the abstract but are nothing short of repressive when applied to the actual social circumstances confronting women in our society.

“Privacy says that violence against women is immune from sanction, that it is permitted, acceptable and part of the basic fabric of American family life. Privacy says that what goes on in the violent relationship should not be the subject of state or community intervention. Privacy says that it is an individual, and not a systemic problem. Privacy operates as a mask for inequality, protecting male violence against women.” …

The traditional justification for the spousal communication privilege is premised on assumptions that do not withstand scrutiny. The privacy and humanistic justifications, when closely examined, seem little more than soaring rhetoric and legally irrelevant sentimentality. The misogynistic history of the privilege is obvious and odious. And it appears that the existence of the privilege perpetuates gender imbalances and, most critically, may even be partly responsible for sheltering and occluding marital violence that disproportionately affects women in entirely unacceptable ways.

Our review of the justifications for and criticisms of the privilege leaves us in agreement with Wigmore: “the occasional compulsory disclosure in court of even the most intimate marital communications would not in fact affect to any perceptible degree the extent to which spouses share confidences.” …

Justice Barbara Vigil dissented for various reasons, including some procedural ones (for instance, that the matter should have been referred to a committee set up by the New Mexico Supreme Court that proposes changes to the Rules of Evidence). But here is her substantive analysis:

The spousal communications privilege serves to protect the private conversations that occur within a marriage. Marriage bridges several facets of the human experience. It is both a legal contract and a sentimental, and for some, religious, promise of fidelity and love. As a legal status, marriage grants a couple myriad benefits and protections offered by the state and federal government. As a solemn vow of unity, marriage creates for many a sacred space to share oneself with a chosen other. That space should remain free from state intrusion and compulsion that would demand one spouse to reveal the intimate secrets of the other.

While the Majority argues that the spousal communications privilege “has outlived its justifications,” I contend that the privilege retains value in guarding the privacy of the marriage. I am not alone in my belief that the spousal communications privilege should remain a rule of evidence. With the Majority’s decision in this case, New Mexico will be the only state in the nation that does not recognize any form of marital privilege. This gives me pause. The Majority’s argument that the spousal communications privilege cannot be justified on privacy grounds without ignoring the private pain of domestic violence victims, itself ignores that New Mexico has abrogated the spousal communications privilege in cases where one spouse is accused of inflicting harm on the other….

While the Majority suggests that the long history of the spousal communications privilege “should be a source of scorn rather than admiration” and cites critics who would label the privilege a “sentimental relic … [that is] patently incompatible with” our modern lives, other scholars have argued that the privilege’s longevity demonstrates that it “must encapsulate some basic human values[,]” allowing it “to survive despite all of the rationalistic attacks that have been made … and the many changes in the surrounding legal culture that have occurred over the centuries.”

I am convinced that the durability of the spousal communications privilege is tied to our society’s view that marriage is sacrosanct and should be guarded from excessive state intrusion. “In a liberal democracy, the spousal relationship is deemed one of the most sacred. In a democratic society, it is particularly abhorrent and repugnant for government to intrude upon the privacy of that relationship.” The Majority acknowledges the moral repugnance in forcing one spouse to divulge the secrets of the other, yet casts aside the humanistic and privacy rationales for the privilege as “soaring rhetoric and legally irrelevant sentimentality.” I respectfully disagree. The want to safeguard marital privacy is not a legally insignificant appeal to sentimentality.

As noted, marriage has a substantial impact on our society and is widely considered to create one of the most important relationships in life. According to the 2010 census data, husband and wife families comprised roughly 45% of total households in New Mexico. Presumably, this wide swath of the state’s population has strong feelings about the private matters they share with their spouses. In a democracy, far-reaching public sentiment deserves substantial consideration in the imposition of public laws and rules. We cannot ignore the humanistic rationale for the spousal communications privilege simply because the marital relationship takes root in notions of love and commitment. There is inherent value in protecting the private conversations between spouses from compulsory disclosure in our courts.

It is the “intrinsically private character” of a marriage and the “reciprocal indecency of invading that privacy” that justifies the spousal communications privilege under a humanistic rationale. The marital promise—both legal and emotional—to support and love one another creates a relationship “as impervious to state control as we suppose our innermost thoughts are.” Eliminating the spousal communications privilege spells “nearly complete destruction of the privacy of marriage, in the interest of the conduct of ordinary litigation.”

Absent the spousal communications privilege, a testifying spouse must either disclose the intimate, private, and perhaps embarrassing secrets of the other spouse or risk being held in contempt of court…. [F]orcing a testifying spouse into this quandary may easily lead “any decent person … either to lie or to go to jail.” … In weighing the equities of the judicial pursuit of truth and the freedom of married couples to share confidences absent government interference, I must conclude that marital privacy is more valuable than the collection of evidence in a given case….

Following this decision, New Mexico will stand alone in its refusal to offer protection for confidential marital communications in its courts. The broad support across the country for the spousal privileges emphasizes the importance of protecting a basic privacy right of married couples, one that should not be abandoned by the Majority….

The Majority argues that the spousal communications privilege shields the family from state interference, allowing the justice system to turn a blind eye to private violence against women because the victims are unable to testify against their abusive spouses. I am sensitive to this concern but am confident that New Mexico’s spousal communications privilege adequately protects victims of domestic violence. The Majority’s argument conflates the spousal communications privilege with spousal immunity.

Spousal immunity bars spouses from testifying against each other and is not recognized in New Mexico. (“Spousal immunity works as a complete bar to testimony, regardless of the subject matter of the testimony.”). In contrast, the spousal communications privilege allows one spouse to take the stand but prevents him or her from disclosing what the other spouse said in confidence. In New Mexico, the privilege does not apply when one spouse is charged with a crime against the other spouse or the children of either spouse. Thus, the spousal communications privilege would not block the testimony of an abused spouse in a domestic violence case, even if that testimony disclosed confidential marital communications. I share the Majority’s concern for victims of domestic violence but find that this concern is adequately addressed in the exceptions to the privilege articulated in Rule 11-505(D) and therefore cannot support abolishing the spousal communications privilege in its entirety…

The sacred bond of marriage forms the foundation for personal happiness and is the bedrock of our civilized society. The spousal communications privilege protects that bond. Given the historical significance of marriage and the indecency of forcing one spouse to reveal the confidences of the other, I am not convinced that the privilege must be abolished in toto….

Justice Charles Daniels agreed with the majority but dissented on the procedural grounds I mentioned; I believe this is the last opinion he ever wrote—he died two days after it was handed down, and apparently knew he was dying while he was writing it:

I write in brevity for two reasons. One is that few additional words are needed. The other is that I have few words left for my beloved Court and beloved colleagues. [Justice Daniels was apparently dying at the time the case was being decided, and indeed died two days after the opinion was handed down. -EV]

I concur fully with the views expressed in the opinions of my colleagues affirming Defendant’s convictions. I share the views of the majority, views that I have held for a long time as a courtroom lawyer, as an evidence professor, and as a jurist, with regard to considering abolition or severe evisceration of the husband-wife communication privilege. That privilege obstructs the truth-seeking mission of our courts in order to protect criminals and other law-evaders and tort-feasors from being held responsible for their unlawful actions. And all this to hold sacred the marriage of Bonnie and Clyde?

But I must agree with Justice Vigil one last time. Her preference is that a change to an evidence rule, particularly a significant change unnecessary to a dispositive outcome in litigation before us, should be handled through our established rules process, with input from the rules committee, with input from the larger legal community, and with input from the state we serve.

With my profound respect for my colleagues who view the issue otherwise, I therefore dissent solely from using this appellate opinion to lay aside the regrettable marital communication privilege….


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An interesting—and, in my experience factually unusual—example of a lawsuit over an adult’s false statements about a 7th-grader. From Hamor v. Topol, 2019 WL 4325125 (Mass. Super. Ct. July 30, 2019) (Rosemary Connolly, J.):

Plaintiff, a minor child, claims that the defendant, an adult and mother of a former classmate, defamed him and caused him to suffer the intentional infliction of emotional distress. The gravamen of his complaint is that the defendant told numerous people in their community, and several of whom had children in the school, that the plaintiff choked her son in school. She is alleged to have told people that the plaintiff, using a piece of yarn that had been looped around the defendant’s son’s neck, pulled it. In conjunction with this statement she showed numerous people in town a photo of a red ligature mark on the back of her son’s neck.

The plaintiff claims he did not choke the defendant’s son but rather he was offering assistance to remove a yarn that had been knotted and tighten on his neck. The red mark happened when the defendant’s son pulled down on the yarn and ripped it from his neck. Plaintiff further offered evidence that they contend shows that the defendant waged a campaign against the plaintiff in the community resulting in social disruption for the plaintiff in his school and in his peer group….

The court finds that the plaintiff has presented sufficient evidence to prove their defamation claims. The picture of the defendant’s son with the red mark coupled with the defendant’s written or spoken statement made to various community members created the impression that plaintiff choked the defendant’s son, causing the mark on his neck. Plaintiff offered evidence, through the police officer, the school psychologist and the school principal, as well as plaintiff’s own testimony to demonstrate that the defendant’s statement was not true.

Plaintiff testified that his lost friends after the incident. This was corroborated by his mother’s testimony and the testimony of the school psychologist who both indicated that after the defendant published the picture and made statement that “[H.] choked [M.]”, [H.]’s school routine changed and his friend group was changed. He was separated from [M.] and the school instituted a safety plan for [M.] to ensure distance between the boys. Several of [H.]’s classes were changed and his seventh grade friend circle narrowed. This evidence supports a conclusion that the defendant’s false statement caused [H.] to be subjected to a loss of social standing and being held to scorn or ridicule in his small school community and among his peer group….

[But] plaintiff’s claim for the intentional infliction of emotional distress … fails. Plaintiff … [cannot show] that the defendant’s conduct was extreme and outrageous and beyond the bounds of decency and intolerable in a civilized society.

The defendant’s son and plaintiff had been closer friends when they were in elementary school and had been drifting apart in 6th and 7th grade. They had a shared friend group. Not only did the boys share a social group, it appears from the evidence that the parents shared a social group with the other parents of children in the school. It is a small community and word travels. The defendant testified that parents came to her and they already knew about the incident. Similarly, the plaintiff’s mother testified that people came to her claiming that they already knew about the incident. The local police knew about the incident and the school administration knew about the incident.

The defendant admits she did tell several people that [H.] choked [M.] and she did show many people the picture. However, she never said anything to [H.] and [H.] acknowledged that the defendant had always been nice to him. Indeed, it was [H.]’s mother who showed him the inflammatory e-mail that the defendant sent to [H.]’s parents on January 24, 2016. This evidence does not meet the high standard of outrageousness required for this intentional tort.

Additionally, on the fourth element, the plaintiff’s claim of distress does not rise to the level one might call severe. The evidence is that he suffered some distress, he met new friends, created a new, albeit small friend group, and was by all accounts, including his own, back on track by 8th grade.

Even if the plaintiff had met his burden to prove the intentional infliction of emotional distress, this claim would still be subject to dismissal at the directed verdict stage on legal grounds. The plaintiff’s claim for the intentional infliction of emotional distress is premised on the same conduct that constitutes his claim for defamation. If the jury decides that, the defendant’s statements are opinion, or are truthful, then as a matter of law [the intentional infliction of emotional distress claim] cannot be used to back door the failed defamation claim….

And the jury verdict:

  1. Do you find that Mrs. Topol’s written or oral statements concerning [H.] were statements of opinion? NO

  2. Did Mrs. Topol make a false and defamatory statement, whether written or oral statement, of and concerning [H.]? YES

  3. Did Mrs. Topol publish[] an oral or written false and defamatory statement to a third party, other than to the minor plaintiff’s parents? YES

  4. If you find that Mrs. Topol published a false and defamatory statement, whether written or oral, about [H.], did it cause [H.] to suffer damages? NO

Defendant therefore wins, because of the absence of damages.



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2019-09-17 13:30:25

Criticism of The New York Times‘ botched story on a previously unreported sexual misconduct allegation against Supreme Court Justice Brett Kavanaugh prompted the paper to answer questions about the editorial process—though not the most important one.

James Dao, deputy editorial page editor, said the story—an excerpt from Robin Pogrebin and Kate Kelly’s new book, The Education of Brett Kavanaugh: An Investigation—appeared in the Sunday Review section (part of the Opinion pages) rather than the news section because “The Sunday Review is the Opinion section’s platform for longer essays as well as excerpts or adaptations from books. Sometimes those books are by Times writers, whose submissions go through the same review process as outside writers. In recent months, the Review has published essays adapted from books by Times news writers like Carl Hulse and Jason DeParle, and opinion writers like Bari Weiss and Binyamin Appelbaum.”

Vanity Fair reports that news editors did consider writing about the new details uncovered by Pogrebin and Kelly, but ultimately decided “there wasn’t enough juice to warrant a story there, let alone a big page-one treatment.”

Dao described the book as “the fruit of nearly a year of research by the authors, [exploring] in a nuanced way the social and cultural forces that shaped Justice Kavanaugh.” He said it was important to include details of the latest allegation, which are similar to what Kavanaugh’s Yale classmate Deborah Ramirez allegedly experienced. According to Pogrebin and Kelly, Max Stier—a Yale classmate of Kavanaugh’s and now president of the Partnership for Public Service—told the FBI he recalled seeing Kavanaugh with his pants down, and that friends pushed his penis toward a woman. Neither Stier nor the women would agree to speak with Pogrebin and Kelly, and the woman’s friends told the authors she did not recall it. This important fact appears in the book but was somehow omitted from The Times’ version.

Dao did not explain how this happened. On MSNBC last night, Pogrebin and Kelly blamed their editors, saying that the sentence was in the draft they submitted but then disappeared.

In any case, while several Democratic presidential candidates have called for Kavanaugh to be impeached, House Democratic leadership seems unlikely to move in that direction. “The same Senate that confirmed Kavanaugh is unlikely to remove him,” Sen. Chris Coons (D–Del.) told BuzzFeed.

Meanwhile, House Judiciary Committee Chairman Jerry Nadler (D–N.Y.) said on Monday, “Frankly, we are concentrating our resources on whether to impeach the president.”


Speaking of terrible New York Times articles, this one is a doozy: The paper of record trashed presidential contender Andrew Yang for daring to mildly dissent from cancel culture regarding SNL’s firing of comedian Shane Gillis for making offensive jokes:

But as many “S.N.L.” viewers and others across the country clamored for Mr. Gillis to be fired, believing his jokes to be beyond excusable, Mr. Yang’s response unnerved those hoping for a more forceful condemnation from him. Perhaps the most pointed criticism has come from the Asian-American community itself, where some have expressed a mix of incredulity and weighty disappointment at the way Mr. Yang has talked about race throughout his campaign.

Mr. Yang took “a position that’s very much at odds with the Asian-American community,” said Jenn Fang, the creator of a long-running Asian-American advocacy blog, Reappropriate, who tweeted over the weekend about Mr. Yang’s comments. “He’s trying to let Shane Gillis off the hook so he can cater to other voters that he needs to get to the White House.”

Mr. Yang also received significant blowback from people within and outside Asian-American communities for appearing to draw a comparison between how society treats anti-Asian racism and anti-black racism.

It’s very easy to find three woke scolds on Twitter and pretend that their complaints about Yang not towing the militant far-left line are somehow representative of the Asian-American community, which is precisely what the Times did here.


The weekend attacks on Saudi Arabian oil fields will probably not raise oil prices for Americans. According to The Washington Post:

That’s because if necessary, both Saudi Arabia and the United States could tap their strategic reserves, assuring they continue to meet demand for weeks. And the U.S. is hardly captive to foreign supplies, as it was during the 1970s oil shocks, since it has emerged over the last decade as the world’s largest oil producer.


  • Controversial political advocates Linda Sarsour, Tamika Mallory, and Bob Bland have resigned from the board of the Women’s March. Both were accused of making alliances with anti-Semitic groups like the Nation of Islam, whose leader Louis Farrakhan once compared Jewish people to termites.
  • Rep. Ilhan Omar (D–Minn.) warned against U.S. intervention on behalf of Saudi Arabia, saying that she did not automatically trust the Trump administration to tell the truth about Iran’s involvement.
  • E-cigarette company Juul is hoping a ballot initiative will thwart San Francisco’s nanny state tendencies.
  • New York public school children have received official permission to skip school in order to protest government inaction on climate change.
  • The horror. The horror.

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Randy Barnett and I are proud to announce An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. All students even those unfamiliar with American history will learn the essential background information to grasp how this body of law has come to be what it is today. Our online library of sixty-three videos brings the Supreme Court’s one hundred most important decisions to life. These videos are enriched by photographs, maps, and even audio from the Supreme Court. I will blog previews of our entire video catalogue in the intermediary days between Constitution Day and the first Monday in October.

The book and videos are accessible for all levels: law school, college, high school, home school, and independent study. Students can read and watch these materials before class to prepare for lectures or study after class to fill in any gaps in their notes. And, come exam time, students can watch the entire canon of constitutional law in about twelve hours.

100 Cases has been favorably reviewed by the authors of leading constitutional law casebooks, including Dean Erwin Chemerinsky, who wrote our Foreword.

Erwin Chemerinsky, University of California, Berkeley School of Law

“The descriptions by Professors Barnett and Blackman emphasize what students need to know in order to master this material for their exams and for their careers. Professors Barnett and Blackman present the material with great clarity. The videos provide the students another way of learning the material and wonderfully complement the textual descriptions. Although many of the cases are controversial, Professors Barnett and Blackman present them in an unbiased and ideologically neutral manner.”

Sanford V. Levinson, University of Texas at Austin School of Law

“Randy Barnett and Josh Blackman have created a remarkable guide to what they label the 100 most important Supreme Court cases in our history. Students (and their teachers) should especially profit from the multimedia blend of information and analysis. Inevitably there will be quibbles about some few cases included and, therefore, others left out, but if I am typical, most legal academics will agree with at least 90% of their choices, which is impressive indeed. This may prove to be a true event in legal education—and not only for law students.”

Jack M. Balkin, Yale Law School

“Barnett and Blackman have made learning the basics of American constitutional law as painless and as fun as possible. The case discussions are concise; the videos are full of fascinating pictures and historical details. If you think you might be interested in Constitutional Law, this is a great way to get started.”

Michael Dorf, Cornell Law School

“The pithy, lively, and occasionally opinionated, but always fair-minded chapters and videos provide all of the essentials of the key cases of the constitutional canon, clarifying and summarizing without ever dumbing down.”

Mark Graber, University of Maryland School of Law

“A very accessible guide by two outstanding constitutional scholars to many cases that are taught in almost every class in constitutional law and a few cases that should be taught in almost every class in constitutional law.”

Keith E. Whittington, Princeton University

“A useful, impressive, and innovative introduction to the history of American constitutional law. Accessible to the beginning student and still helpful to the advanced student. A new approach for a new generation of students. Raises the bar on how to make these complex cases understandable.”

Michael Stokes Paulsen, University of St. Thomas School of Law

“Randy Barnett and Josh Blackman have done it again! Two of our nation’s most brilliant scholars and teachers of the Constitution have teamed up to create a magnificent set of new teaching materials. 100 Supreme Court Cases Everybody Should Know is an endlessly rich and deeply rewarding resource for understanding the U.S. Constitution. Novices and experts alike will ben- efit from the Barnett-Blackman treasure trove.”

William Baude, University of Chicago Law School

“A strong supplement that provides the legal and political context for the most significant Supreme Court cases. It provides important background for all constitutional law students.”

The book is currently backordered on Amazon. Please order the paperback, and send a signal to our publisher to print more copies! Or, if you are in a hurry, you can download the E-Book or stream the videos.

Several professors have already adopted this short, accessible $30 paperback as a supplement. If would like a review copy of the book and videos, please contact me.

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2019-09-17 13:05:34

News reports often give the impression that human beings have wrecked the earth, the middle class is disappearing, and the world is getting more dangerous.

“We are destroying the planet,” Michael Moore says on CNN. MSNBC says that “the middle class is disappearing.” The media warn us about things like a “deadly Ebola outbreak.”

This negativity comes from the way humans are wired by evolution, says Reason Editor in Chief Katherine Mangu-Ward.

She tells John Stossel: “If you are a caveman who hears a little rustling in the weeds, and you say, ‘Oh, it’s probably fine,’ the other guy who says, ‘It’s probably a tiger,’ that’s the guy who lives. That guy was our ancestors.”

But our instincts are wrong, she says. We needn’t be so scared.

The cover of the August/September 2019 issue of Reason features a glass that’s completely full. Inside the magazine, you’ll read about how there is less war and more food. And we’re healthier, while working safer and more fulfilling jobs.

Mangu-Ward points out that today we have medical breakthroughs that would’ve once been called miracles. Deaf children receive cochlear implants that allow them to hear for the first time. Artificial limbs “allow the lame to walk.”

“These are things that, in another era, would have caused the founding of an entire religion!” says Mangu-Ward.

Stossel pushes back: “What about this constant complaint from the media?…The middle class is shrinking.”

“Mostly it’s because people are getting richer,” Mangu-Ward responds.

She’s right. A graph in Reason shows that about 50 years ago, 53 percent of people were middle-income, making between $35,000 and $100,000 per year. Although that statistic has since fallen to 42 percent, the reason is that many people moved into upper-income brackets. The share making more than $100,000 rose from 8 percent to almost 28 percent. (These numbers are inflation-adjusted.)

Pestilence, War, Famine, and Death are All on the Decline,” was the subtitle of another article in the issue.

“You wouldn’t know that watching news programs,” Stossel said.

“That’s right, and yet it’s absolutely true,” added Mangu-Ward.

Even with the rise in terrorism, she notes, “There are fewer wars and fewer people die in those wars than has ever been true in the past.”

Stossel pushes back again: “Lately, life expectancy dropped a bit.” 

“Overall, that is the tiniest blip,” Mangu-Ward replies. The long-term trend is still up.

An article titled “How Work Got Good“argues that people are more fulfilled in modern jobs.

“A couple hundred years ago, work was dangerous,” Mangu-Ward adds. “It was very easy to die at work…work was extremely boring, even for people that had good jobs. Jobs are pretty interesting now, and they mostly don’t kill you, and we should be grateful for that.”

But there are problems, and Reason‘s editors understand that. The back half of the magazine is filled with the bad news: misery in Venezuela, threats to an open internet, the new popularity of socialism. 

“Everything that’s bad is politics, everything that’s good is the market.” Mangu-Ward argues. “Life gets better. We have the opportunity to look to a future where those trends will continue—if we can just manage to keep politicians from screwing it up.”

The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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Shadowlands: Fear and Freedom at the Oregon Standoff, by Anthony McCann, Bloomsbury, 448 pages, $30

On January 2, 2016, Ammon Bundy and a few dozen armed militiamen seized control of the Malheur National Wildlife Refuge in Harney County, Oregon. Their aim, they said, was to protest the imprisonment of Steven and Dwight Hammond, two ranchers convicted of committing arson on public property. More broadly, they had a host of complaints about the federal government’s ownership and management of Western lands.

But Anthony McCann sees a kaleidoscope of deeper meanings in the 2016 standoff—crises of work, race, manhood, and history swirling together in a “whacked out American story.” McCann, a professional poet, admits that his natural allegiances going in to the story were more with the liberal-progressive side, although he doesn’t seem the type even before diving into the story to get quite as radical as those who crudely mocked the Malheur militants (by, for example, mailing them plastic penises) or wished them grievous harm. In Shadowlands, his nuanced account of the occupation and its aftermath, he treats the occupiers and the loose “patriot” movement surrounding them mostly fairly. Meanwhile, the feds’ behavior frequently appalls him.

An occupier offers one of the story’s blunter morals when he tells McCann, “The government might kill you if you tried to form a commune.” McCann concedes the point. The “experience at Malheur,” he writes, “seemed to bear this out.”

The government’s case against the Hammonds revolved around two occasions when the ranchers set fires on public lands. The Hammonds insist that they set the first fire to control invasive plants and the second to keep a wildfire from reaching their property. The government insisted the first fire was actually meant to hide evidence of illegal deer hunting and that the Hammonds had a record of threatening federal agents. Many Westerners believed the Hammonds, and a judge deliberately gave them a shorter sentence than the legal mandatory minimum. They were already out of jail when an appeals court overturned that decision, ordering them back into custody to serve additional time.

The Hammonds would eventually receive a presidential pardon from Trump (something he has only done 10 times, nearly always for people seen as key parts of his political and ideological coalitions). But that didn’t happen until July 2018. As the ranchers returned to their cells in late 2015, many militia types gathered in the nearby town of Burns, Oregon, to protest the revised sentence. They were angry, but most of them did not support Ammon Bundy’s plan—divinely inspired, he insisted—to occupy the Malheur headquarters and turn it, possibly for many years, into a mutual-aid commune for ranchers and for anyone else who wanted to help recreate true American freedom via a thinly conceived effort to “unwind” all federal land ownership.

Ammon, a Nevada native, had never been to the Malheur National Wildlife Refuge before. He was a son of Cliven Bundy, the 21st century’s leading crusty symbol of sagebrush rebellion. The Bundys had been at the center of an earlier land-use drama stemming from their refusal to pay federal grazing fees; it came to a head in 2014, when the family fought the government’s attempts to take their cattle as a penalty. When a YouTube video showed a Bureau of Land Management agent tackling Ammon’s aunt and then tasing Ammon when he tried to intervene, the footage inspired sympathizers across the nation to assemble at the Bundys’ Nevada ranch. Many of those new arrivals were armed. The government then appeared to give up its plan to take the Bundy’s cattle.

In fact, the feds were merely biding their time: In 2016 they arrested the Bundys and some of their allies. But before then, the Bundyites were ecstatic with the feeling of having made tyrants blink. Chasing the dragon of that feeling led many of their fans to follow Ammon to Malheur—though many of the people who ended up there had personal motives with little if any connection to the Bundys. Some, McCann reports, had a vague sense of liberties curtailed. Others were conspiracy theorists. A few, he argues, just seemed to be suffering from a crisis of the modern American man unmoored from meaningful work or community.

The occupiers included old hippies, Mormons, disillusioned veterans, libertarians protesting police brutality, Ren Faire diehards, a man who believed literal angels had led him to the refuge, and only one practicing rancher. (Even Ammon before this Malheur adventure had relocated to Idaho and was running a truck maintenance business.) They also included several federal provocateurs and informers, including the militant who seemed most obsessed with weapons training.

McCann provides plenty of perspectives from locals who thought their uninvited visitors were an aggravating and sometimes scary nuisance. But with an impressive act of imaginative sympathy, McCann also sees and describes an admirable humanity in the rebels, even as he finds many of their ideas perplexing, absurd, or dangerous.

Such ideas include the notion, derived from the radical right-wing group Posse Comitatus, that the sheriff is the sole legitimate vector of political authority over the people; an interpretation of the “enclave clause” of the Constitution in which it bars most federal land ownership; jury nullification (a power McCann concludes is real and important, yet also best kept mostly mum about); and Ammon’s brother’s belief in the dizzyingly baroque legal doctrines of the “sovereign citizens,” who deny that the federal government has any authority over actual living human beings and who file a lot of nonsensical paperwork to that effect.

The moment in the Malheur story that bears the most emotional weight is the murder by Oregon state troopers of LaVoy Finicum, but it gets strangely short shrift in a book that can get very emotional at times about distant buttes and surging mountain weather. Police blocked a road that Finicum and other occupiers were driving on to meet a sympathetic sheriff in a neighboring county. He pulled over abruptly at the side of the road and got out of the truck, at which point FBI agents started shooting; state troopers then killed him as he stumbled about in the snow.

McCann doesn’t discuss the ensuing indictment of an FBI agent for lying about firing on Finicum. McCann does note that at times the public rhetoric of the occupiers could make them feel like a death cult. It is, he writes, “disorienting to recognize how, in writing this book, I’ve become entirely used to watching people publicly declare their readiness, even eagerness, to die.”

McCann recounts at length the Northern Paiute Indians’ history in the Great Basin containing the Malheur refuge, including the 1880s trail of tears they followed as they were driven from their ancestral lands. The occupiers awkwardly attempted to pal up to the Paiute, but the tribe would have none of it. The tribal council’s sergeant-at-arms, Jarvis Kennedy, tells McCann that although some supporters of the occupation tried to bond with him over their support for the Standing Rock pipeline protests happening during the first trial of Malheur occupiers, he hoped to “see ’em hang.” The occupiers may have felt a kinship with the displaced Indians, but for Kennedy they were simply re-enacting the tribe’s displacement as farce.

In the end, no occupier was hung, literally or figuratively. Some pleaded guilty before trial, but in the first group trial, not a single conviction was won.

The government wanted to hit the seven occupiers on trial with a felony charge for standing around armed in a federal building. So instead of the easier-to-prove trespassing, the defendants faced the trickier charge of conspiracy to intimidate federal employees. This required delving into the intent of the men and woman on trial. McCann notes that he “had no desire to see federal power grow more comfortable with deciding what protest activity was unlawful conspiracy to intimidate.” It didn’t help the government that not a single named federal agent claimed to have been intimidated.

McCann thinks the occupiers’ vision of devolved control over federally owned land would lead to a corporate hellscape in which no American would ever set foot in nature again. But for all of McCann’s disagreements with the occupiers’ ideas, he was repelled by the police corruption exposed in the later trial of the Bundyites for their original 2014 stand in Nevada. As he writes, the government “willfully withheld substantial evidence that the Bundys had been, at least partly, telling the truth” about federal agents’ “surveillance, snipers, and provocations.” The government also tried to hide four separate assessments, “none of which characterized the Bundys as a threat.” (Environmentalist fears about Bundy cattle harming desert tortoises also turned out to be undocumented.) A judge threw the case out in January 2018, citing “flagrant prosecutorial misconduct.”

The public conversation around the Malheur occupation made McCann feel that, “beyond a common allegiance to the Dollar and the Pentagon, ‘We’ were little more than a bunch of people who hated each other.” It’s possible this book could help some Americans see past that hate and begin to understand one another. But another of McCann’s comments casts a darker shadow: Noting that not just the Malheur occupation but America at large is rife with veterans of our forever war in the Middle East, he observes that “this country is now full of men and women with long-term personal experience of contemporary guerrilla insurrection.”

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