January 14, 2022:- Last year, President Biden issued a vaccine mandate through the Occupational Safety & Health Administration (OSHA). The regulation that OSHA issued would have required employers with 100+ employees to ensure that their employees either received vaccination against COVID-19 or to wear masks and undergo weekly testing. Yesterday, the Supreme Court of the United States issued a stay of OSHA’s regulation, effectively putting an end to it.
The court pointed out that COVID-19 is a life hazard, not an occupational one:
Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.
Congress gave OSHA the limited task of regulating workplace safety, not the unlimited task of regulating the safety of society as a whole:
Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
The court pointed out the difference between job-specific risks and the general, everyday risks that we all face both at work and elsewher:
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible… But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.
Again, the statutes that Congress has enacted that give OSHA the legal authority to issue regulations confine that authority to occupational safety, not to safety in general. If Congress wishes to give OSHA the authority to regulate the safety of everyone, everywhere, all the time, then Congress needs to do so via statute. OSHA cannot just give itself that power, even at the direction of the President. The court’s decision recognizes this basic principle of the separation of powers.
By the way, here in Massachusetts, according to the Department of Health dashboard, the number of people currently in hospital with COVID-19 is 3,180. Of that number, 1,505 (approximately half) are fully vaccinated.
January 10, 2022:- An op-ed in today’s edition of the Wall Street Journal titled “Omicron makes Biden’s vaccine mandates obsolete” will prove important, I think. It states that the vaccinations that are supposed to protect us against COVID-19 may make us more susceptible to catching the latest version of the disease known as the Omicron variant:
One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection. Confirming this negative efficacy finding, data from Denmark and the Canadian province of Ontario indicate that vaccinated people have higher rates of Omicron infection than unvaccinated people.
One of the two co-authors is Jed Rubenfeld, a professor at Yale Law School. The other is Dr. Luc Montagnier, who won the 2008 Nobel Prize for Physiology or Medicine. But be advised, Wikipedia warns us about Dr. Montagnier:
During the COVID-19 pandemic, Montagnier was criticised for using his Nobel prize status to “spread dangerous health messages outside his field of knowledge” for promoting the conspiracy theory that SARS-CoV-2 was deliberately created in a laboratory. Such a claim has been refuted by other virologists
Of course, Wikipedia also states that the total number of deaths from COVID-19 in China (pop. 1.4 billion) is about 5,000, which is roughly the same as the death toll in Ireland (pop. 5 million). According to Wikipedia:
Around March 2020, there was speculation that China’s COVID numbers were deliberately inaccurate, but now China’s COVID elimination strategy is considered to have been successful and its statistics are considered to be accurate
When weighing the credibility of Wikipedia on the subject of Dr. Montagnier, it’s worth considering the credibility of Wikipedia on the subject of the Chinese government’s COVID-19 statistics. To be a little more blunt, if you believe that the number of COVID-19 fatalities in China is the same as the number in Ireland, perhaps I could interest you in the purchase of a certain bridge.
So with that word of caution about Dr. Montagnier from Wikipedia, and my own word of caution about Wikipedia’s word of caution, let me move on to the legal implications.
If the vaccinations make people more susceptible to COVID-19, what are the implications for those employers who imposed a vaccine mandate on their employees? I have in mind the companies that gave their workers a simple choice: Either (A) get vaccinated; or (B) you’re terminated.
And what if the workers who chose option A (i.e. they got vaccinated) then caught COVID-19 — not in spite of but because of the vaccine — and became sick? Do they have any legal recourse, and if so against whom?
On November 12, 2021, the Fifth Circuit Court of Appeals affirmed its decision to stay (pause) the COVID-19 vaccine mandate that President Biden issued via the Occupational Safety and Health Administration (OHSA). You can read the decision here.
The court had several reasons for finding the mandate unlawful, including the following:
[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.
With regard to the supposed “emergency” that could justify the OHSA rule, the court added:
And, of course, this all assumes that COVID-19 poses any significant danger to workers to begin with; for the more than seventy-eight percent of Americans aged 12 and older either fully or partially inoculated against it, the virus poses—the Administration assures us—little risk at all.
As with the President Biden’s use of the CDC to ban evictions for non-payment of rent, this latest attempt to usurp the legislative function has failed, for the time being anyway.
Adam Schultz, photographer
Official portrait of President Joe Biden, taken in the Library room at the White House
September 7, 2021:- Massachusetts legislators are considering H. 1434, which would establish a moratorium on non-payment evictions. It would not ban all evictions, only a subset of evictions “where the plaintiff’s complaint is based upon or includes any claim for rent or use and occupancy.” The bill has an emergency preamble, and it’s supposedly related in some way to COVID-19.
Nothing can justify another ban on people regaining possession of their property from those who are occupying said property without paying rent. The article in this week’s Massachusetts Lawyers Weekly on that subject quotes me, accurately:
“In January, the pandemic was killing about 3,000 people a day, notes Amherst attorney Peter Vickery. But as vaccines have been distributed, the death rate has declined dramatically, down to about 150 people a day.
Vickery references the New Jersey law that prohibits motorists from pumping their own gasoline. There may be some very real concerns that led to the passage of that law, but there is an ‘extraordinary mismatch between the threat and the policy.'”
I mis-stated the current daily death toll, which is now around 400-500, up from about 200 per day in July but still a far cry from the January 2021 average of 3,000. Yesterday (September 6, 2021) in the United States there were 246 deaths from COVID-19, according to the CDC. For the CDC’s tracker of daily deaths from CIVID-19, click here.
NJ ban on amateur gas-pumping
But what does the New Jersey law against pumping your own gas have to do with eviction moratoria? For readers who are curious, please consider the findings that NJ legislators included in the statute so as to justify the self-pumping ban (NJSA 34:3A-4), which findings include:
“(d)… [R]isks of crime and fall-related personal injury, which are a special burden to drivers with physical infirmities, such as the handicapped and some senior citizens;
(e) Exposure to toxic gasoline fumes represents a health hazard when customers dispense their own gasoline, particularly in the case of pregnant women;
(f) The significantly higher prices usually charged for full-service gasoline in States where self-service is permitted results in discrimination against low income individuals, who are under greater economic pressure to undergo the inconvenience and hazards of dispensing their own gasoline.”
These are all plausible risks. But do they really justify banning amateurs from filling our own gas tanks and leaving the job to trained pump attendants? No. In the rest of the United States, people manage to pump their own gas without triggering the Apocalypse. Similarly, nor does the potential for spreading COVID19 justify a ban on people regaining possession of their own property from those who are not paying rent.
As the Supreme Court of the United States held recently regarding the Biden administration’ unconstitutional non-payment eviction moratorium:
“The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.”
Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., No. 21A23, 2021 WL 3783142, at *4 (U.S. Aug. 26, 2021).
Massachusetts legislators should read this decision and, before criticizing it, think about the Court’s reasoning.
Our right to own property is one of the many rights that the State and federal Constitutions guarantee. It is not untrammeled, but it is is not something that legislators can violate on a whim. Here in Massachusetts, the Supreme Judicial Court has held:
“[S]ubstantive due process requires a statute affecting a fundamental right to be narrowly tailored to achieve compelling government interests.”
Sharris v. Commonwealth, 480 Mass. 586, 593, 106 N.E.3d 661, 668 (2018). Is the right to exclude non-paying tenants from your property a fundamental right? If it is, the court should apply strict scrutiny and require the Commonwealth to show that the law is narrowly tailored to further a compelling government interest.
Even if the court were to apply the weaker intermediate-scrutiny test, the non-payment eviction moratorium should fail. To pass this test, the Commonwealth would have to show a reasonable, proportional fit between the law and an important governmental interest. Here, what connection could there be between a ban on non-payment evictions and the governmental interest, i.e. slowing the spread of COVID19?
The reason that the CDC gave for its non-payment eviction moratorium — and that moratorium advocates continue to echo — was that “evicted renters must move.” They may move into “shared housing or other congregate settings” (of course, they may be moving from shared housing or other congregate settings, but no matter). And their relocation may even entail “crossing State borders.”
What H. 1434 would not do
Surely, if people moving from one place to another is such a risk enhancer, the Legislature should put a stop to it altogether.
But does the Legislature wish to ban all of us, renters and homeowners alike, from moving house? No, it is not trying to prevent people who own their own homes from selling them and going to live somewhere else.
Does the Legislature wish to ban tenants from relocating of their own accord? No.
Does the Legislature wish to ban all evictions? No.
Does the Legislature wish to ban judges from evicting tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment? No.
For this bill to be a good fit, there would have to be some evidence that tenants who do not pay rent are more likely to contract and transmit COVID-19 than the tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment. And that is just silly.
Yes, deaths from COVID-19 are higher than they were in July, but nowhere near the high of January-February 2021. Most adults in the United States — and about 90% of those aged 70 and over — have been vaccinated against COVID-19, and those vaccinations work (click here for a recent article in the Atlantic magazine on that subject). Even if there had been a good reason for H. 1434 in early 2021 (and there was not) that reason has gone.
The only kinds of evictions that the Legislature wishes to ban with H. 1434 are evictions where the landlord is trying to get paid. That might make the bill’s proponents feel good, but it would not reduce the transmission of COVI-19.
August 31, 2021:- If you are a regular reader of my posts, you already know that Massachusetts is one of the worst States in the nation for civil asset forfeiture (worst, that is, from the point of view of the people whose property the police seize). And you also know that police departments can keep whatever they take from someone even if that person is never charged, let alone convicted, of any crime. But you might still be wondering how Massachusetts officials spend the proceeds. A new report by WBUR and ProPublica has some answers.
The WBUR and ProPublica journalists looked at Worcester County, where the District Attorney, Joseph D. Early, Jr., obtained $4 million in forfeitures in the period 2017-20:
“Early has been criticized by the state auditor for spending forfeiture funds on a Zamboni ice-clearing machine and tree-trimming equipment. Over the years, his office has posted photos on its website of Early handing out checks for “Drug Forfeiture Community Reinvestment,” to pay for baseball and softball fields or to support a cheerleading team.”
There’s nothing inherently wrong with baseball, softball, and cheerleaders, in my opinion. If the DA wants to spend his own money on that sort of thing, OK. But other people’s money? And who are these other people?
“WBUR’s analysis of Worcester County forfeitures from 2017 through 2019 found that more than half of the seizures in these cases were for less than $500. In one incident, Fitchburg police seized $10 from a man listed as homeless. In another, Sturbridge police took $10 from a 14-year-old boy.”
This helps explain why so few people bother challenging seizures in court: The cost of hiring an attorney is far higher than the value of the seized property.
August 27, 2021:- HUD Secretary Marcia L. Fudge issued a statement criticizing the Supreme Court of the United States for holding the CDC eviction moratorium unconstitutional. Here is the opening paragraph of the statement:
“I am deeply disappointed by the Supreme Court’s ruling on the CDC’s eviction moratorium. With this decision, the Court has put millions of Americans at risk of losing their homes—even as the Delta variant heightens their risk of exposure to COVID-19. Many of these Americans are among our most vulnerable—including senior citizens, people with chronic illnesses, young children, and families with the lowest incomes.”
The statement is inaccurate. As the Supreme Court’s decision points out, it is Congress, not the CDC, that has the power to enact an eviction moratorium. Congress has done so before, and it could do so again. If Congress had wanted to enact a new eviction moratorium, it could have. But it did not. That choice on the part of Congress did not magically empower another branch of the federal government to legislate in its place.
Many political actors have put people at risk of losing their homes, e.g. the governors who closed down businesses and the legislators who enabled them. The culprits do not include the justices of the Supreme Court.
August 27, 2021:- Yesterday evening, the Supreme Court of the United States lifted the stay (pause) on the District Court’s order vacating the Biden administration’s eviction moratorium. By way of a reminder about the separation of powers, the Supreme Court stated:
The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19.
This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium. Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(a) would counsel against the Government’s interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance… That is exactly the kind of power that the CDC claims here.
(internal citations and quotation marks omitted).
The Court was not saying that no branch of the federal government can impose an eviction moratorium. Congress can do it (and Congress has done it) but an executive-branch administrative agency cannot.
This article in scotusblog.com provides a clear description and link to the decision.
August 25, 2021:-Attorney Wayne Detring of Franklin, Tennessee, is not someone I had heard of before yesterday but, as a result of his letter to the editor of the Wall Street Journal, he is going on my Christmas card list.
Attorney Detring pointed out that after President Biden repeatedly said that there was no legal basis for extending his predecessor’s eviction moratorium (and then went ahead and did it anyway) the administration’s lawyer put his name to a court document arguing that, contrary to his client’s repeated and accurate public statements, the moratorium is lawful. That sort of conduct verges on the unethical, wrote Attorney Detring (see below).
Here is the President saying that the courts had ruled that the previous CDC eviction moratorium was unconstitutional and that although most constitutional scholars think that a new one would be “unlikely to pass constitutional muster” a few think it might and by the time a challenge gets through the courts the order will have served its purpose.
The court decision President Biden was referring to was the one that Judge Dabney Friedrich of the U.S. District Court for the District of Columbia issued back in June. “The question for the Court is a narrow one,” wrote Judge Friedrich.
“Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”
The reason has nothing to do with the wording or extent of the CDC’s eviction moratorium. The reason is simpler than that. As an executive branch agency, the CDC may only act within the parameters that Congress has set for it, and Congress has never granted the CDC the authority to ban people who own rental property from going to court when tenants do not pay rent. The CDC does not have, and never has had, that authority.
At the end of June, Supreme Court Justice Brett Kavanaugh stated that a moratorium extension would need clear and specific congressional authorization via new legislation.
Nevertheless, when Congress did not enact any such clear and specific authorization, President Biden issued another eviction moratorium through the CDC.
The Alabama Association of Realtors quickly challenged the new moratorium.
In response, the Solicitor General filed a reply in which he argued that Congress had given the CDC authority via 42 USC 264(a), enacted in 1944, which provides that:
“The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”
According to the Acting Solicitor General of the United Stats, Brian H. Fletcher, by way of this provision in the 1944 statute Congress gave the head of the CDC discretion to “prevent the movement of persons to prevent the spread of communicable disease.” To be fair, he was quoting the Court of Appeals for the District of Columbia when it rejected the request from the Alabama Association of Realtors to vacate the stay of Judge Friedrich’s previous order. But at the time the Solicitor General filed the reply it was already clear that five justices of the Supreme Court of the United States share the opinion of Judge Friedrich that the 1944 statute, which (prior to President Trump) had never been used in this way, does not confer the necessary authority.
If you think there ought to be a rule against this sort of thing, there is, as Attorney Detring points out:
“Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct prohibits lawyers from bringing or defending a proceeding unless there is a basis in law or fact for doing so. Rule 11 of the Federal Rules of Civil Procedure states that by signing or submitting a pleading, an attorney certifies that it is not presented for any improper purpose, such as to ‘cause unnecessary delay.’ Rule 11 also provides a process for sanctioning violators… Ordinary practicing attorneys would be in grave danger of sanctions for filing a pleading knowingly unsupported by law or fact, and by admittedly filing the pleading for the purpose of delay.”
Good point, I think.
President Biden’s conscious decision to issue an unlawful order will be one of topics up for discussion at an event MassLandlords has scheduled for September 8 titled “Are Eviction Moratoriums the New Normal?” The other points up for discussion:
Courtroom challenges to the CDC moratorium;
The “state moratorium 2.0” currently pending the Massachusetts Legislature; and
What litigation might be brought to bear against a new Massachusetts eviction moratorium.
I will be one of the three speakers, together with Attorney Jordana Roubicek Greenman and Attorney Richard Vetstein. For the event link, click here.
August 6, 2021:- President Biden, like President Trump before him, has issued an eviction moratorium, via the CDC, without authorization from Congress. For an overview from Reason magazine, click here.
August 4, 2021:- If you lie awake worrying that there are too few people incarcerated, too few criminal offenses on the statute books, and too much unregulated speech (in fact altogether too much unregulated human activity in general) rest easy. Help is at hand. The Massachusetts Legislature is considering a bill that would criminalize videos that make it look as if people are saying things that they did not really say.
It seems unlikely that the bill, H. 1755, sponsored by Representative Jay D. Livingstone, will become law, not this session anyway. It is a refile of H. 3366, which he filed in 2019. For reasons that I explain below, I hope this bill does not become law, not this session, not next session, not ever.
The clue is in the typo
Whoever drafted the bill apparently drew inspiration, and most of the text, from a federal bill titled the Malicious Deep Fake Prohibition Act of 2018 filed by United States Senator Bill Sasse (R – Nebraska). If you want to read Attorney Nina Iacono Brown’s critique in Slate of Senator Sasse’s bill and similar proposals, click here.
Copying another legislator’s bill is not a violation of the Copyright Act, of course (on which subject see below). In fact, they should have gone the whole hog and copied the title too. Because what did the drafters choose as a moniker for Representative Livingstone’s adaptation of Senator Sasse’s bill? They called it “An Act to protect against deep fakes used to facilitate torturous or criminal conduct.”
Aside from the irony-laden, Freudian-slippy typo (I am quite sure that they meant to write “tortious” not “torturous”) it’s just too much of a mouthful. But that problem is a small one compared with the bill’s potential impact on freedom of expression. It would hand the shut-uppers yet another tool with which to silence heterodox speakers.
Trust me, I’m from Big Tech
H. 1755 was on the agenda for the Joint Committee on the Judiciary on July 27, 2021. If you would like to watch the relevant part of the hearing, click here and scroll to 1:09:40. There you can see and hear testimony from Nick Gatz, manager of State Government Relations for Adobe, who states that the company is neutral on H.1755 and offers the Legislature its expertise “on the topic of content manipulation and online misinformation,” which is the sort of thing Adobe is against, I gather.
Adobe is so very much against content manipulation and online misinformation that it has established an entity called the Coalition for Content Provenance and Authenticity. If that name was approved by a focus group, I am quite sure that its members either: (a) had no familiarity with Orwell’s 1984; or (b) considered the book to have been not so much a cautionary tale as an instruction manual.
Coalition of the all too willing
The purpose of the Coalition for Content Provenance and Authenticity? To deploy technology that will help us — naïve saps that we are — sort the real-news wheat from the fake-news chaff, thereby obviating the need for legislation. Why should politicians bother to extend control over online speech with laws (laws that could conceivably be struck down by bothersome judges or repealed by the great unwashed) when Big Tech has an app for that? If the alternative to the Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct is the Coalition for Content Provenance and Authenticity, forgive me for not sighing with relief.
One of the more famous members of the coalition is Twitter, the company that (like Google’s YouTube) runs advertisements for the Chinese government, says the Columbia Journalism Review:
“According to a number of reports, the most recent ads push the message that protesters in Hong Kong are violent extremists and that state police are simply doing their best to keep the peace.”
Yes, Twitter takes money to promote the Chinese Communist Party line that pro-democracy protestors are violent extremists, a falsehood that does not count as “online misinformation” so far as Twitter is concerned, apparently.
Another coalition member is Microsoft, which, according to Business Insider, complies with China’s censorship laws. For example, earlier this year, when users in the United States tried to find images of Tank Man via Microsoft’s search engine, Bing, their searches yielded no results.
Readers may recall that Tank Man was the protestor who stood in front of Red Army tanks during the Tiananmen Square demonstrations. He was being a “violent extremist,” I suppose. But Bing’s omission was merely the result of “human error,” according to reports on the British Broadcasting Corporation (BBC).
“Beijing is known to require search engines operating in its jurisdiction to censor results, but those restrictions are rarely applied elsewhere.”
The most important word in that sentence is “rarely.” Fans of Gilbert and Sulivan’s H.M.S. Pinafore may be recalling the Captain’s lines, “What, never? Well, hardly ever.”
Coincidentally, the BBC is another member of the Coalition for Content Provenance and Authenticity. For readers unfamiliar with the BBC, it is Britain’s publicly-funded media organization that makes popular dramas, documentaries, and situation comedies and, once upon a time, used to be a trustworthy source of news, at least in comparison with, say, TASS or Pravda. It is also the organization that employed Martin Bashir, the reporter who secured a TV interview with Diana, Princess of Wales, by using faked bank statements that fueled the princess’s paranoid delusions that she was the victim of a conspiracy involving, inter alia, royal bodyguards; her husband and heir apparent to the Crown, Prince Charles; the Secret Intelligence Service; and GCHQ, Britain’s equivalent of the National Security Agency.
The BBC followed up on Bashir’s fakery with an equally fake internal inquiry and not only retained his services but gave him a promotion. For the report of the independent inquiry, click here.
In addition to Martin Bashir, the BBC employed Jimmy Savile who, during his lengthy broadcasting career, sexually assaulted approximately 72 people and raped several more, including an 8-year-old girl, crimes to which the BBC later admitted it had “turned a blind eye.”
So Twitter, Microsoft, and the BBC are now coalescing with other media corporations in order to protect us — poor, credulous, undiscerning, gullible us — against content manipulation and online misinformation. What, as they say, could possibly go wrong.
During the hearing, the House chair of the committee suggested that deepfakes might be better dealt with via a new federal law. This brought to mind a current federal law, namely section 506 (c) of the Copyright Act, which makes it a crime to place on any work a false copyright notice:
“Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false… shall be fined not more than $2,500.”
This provision came to mind for two reasons. First, it was only last year that the Supreme Court of the United States issued its decision in Georgia, et al v. Public.Resource.Org, Inc., on the subject of copyright in legislative works (the public edicts doctrine). The court reiterated the well-established point that legislators cannot claim copyright in the works they create in the course of their official duties.
That’s why Senator Ben Sasse has no grounds to go after State Representative Livingstone. And it is why the Massachusetts Legislature cannot claim copyright in the documents that it publishes. If it did so, e.g. by fraudulently posting a false copyright notice on its website, it would be violating section 506 (c) of the Copyright Act.
And that was the second reason that the provision came to mind as I watched the hearing, because right there on the screen, at the bottom of the page, appeared the following words:
I wonder if that qualifies as “online misinformation.”
From tort to crime
If we cannot safely place total trust in Twitter, Microsoft, the BBC, and the Coalition for Content Provenance and Authenticity as a whole (and we can’t), would we be any better off with Rep. Livingstone’s Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct? No, and here’s why.
The proposed law would make it a crime to distribute a video in order to “facilitate criminal or tortious conduct” if the video was “created or altered in a manner that [it] would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”
The word “facilitate” is pretty clear, I suppose, and the term “criminal conduct” is easy enough to grasp. It covers things like assault and battery, and fraudulently placing a false copyright notice in violation of section 506 (c) of the Copyright Act.
But what qualifies as tortious conduct? We have torts aplenty in Massachusetts, but here are two that tend to come up in the context of online spats: defamation and the intentional infliction of emotional distress. To me, these are the two torts that seem likely to provide a pretext for political prosecutions under H. 1755, allowing Massachusetts politicians to use the courts to silence their opponents. Do such things really happen here? For just one example, see my post titled “Free speech wins (four years after judge bans candidate from mentioning opponent’s name.”
It can be difficult for public figures such as politicians to shut up their detractors with defamation lawsuits. They have to prove “actual malice,” i.e. that the speaker made a false statement knowing that it was false or with reckless disregard of whether it was false or not.
Easier, then, if you are an elected tribune of the people, to seek a civil harassment-prevention order, as did the politician in the case I discuss in the aforementioned post. Even easier, perhaps, to bring a private criminal complaint under the proposed Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct or, better still, get your friend the prosecutor to ask a grand jury to issue an indictment.
If H. 1755 becomes law and you share a deepfake with the intent to cause emotional distress to, say, Senator Suehappy Thinskin you won’t be looking at your screen for a while; you’ll be looking at two and a half years in the slammer.
To safely forward the video of the esteemed Senator without fear of criminal prosecution, you would need to know — prior to sharing it — that it was not “created or altered in a manner that would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”
How could you be sure? Perhaps you could look for a certificate of authenticity issued by the Coalition for Content Provenance and Authenticity. But the Coalition (i.e. Twitter, Microsoft, the BBC, etc.) might not issue certificates to videos that criticize the powerful. It might routinely withhold certificates from people who say things that the powerful do not like.
But the absence of a certificate would not necessarily mean that the video was deepfake. So you could roll the dice, share the video, and hope that you don’t get a call from the offended hack’s lawyer or from law enforcement.
Even if the video is authentic, you might worry that people with friends in high places might be able to persuade law enforcement — and even a judge and jury — that it is not. Readers may have noticed that when somebody says something true, but embarrassing, about a powerful person, the powerful person first denies it and then attacks the somebody who said it, often with the eager help of the online mob. Even if the truth of the statement eventually becomes apparent, by that point the speaker’s life has been turned upside down.
Yes, H. 1755 says that “no person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.” But when do you, the speaker, find out whether your activity was protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States? When a judge says so, i.e. long after you’ve been interrogated and prosecuted.
Those risks, I suspect, would make you think twice about forwarding the video of Senator Suehappy Thinskin saying or doing something idiotic. We call this the chilling effect.
But shouldn’t there be laws against using deepfakes to defame people or cause them emotional distress? Yes, and we already have them, e.g. the torts called defamation and the intentional infliction of emotional distress.
If you still think we need more criminal offenses for prosecutors to threaten people with, check out @ACrimeADay on Twitter. Spoiler alert: There are a lot.
Back in 2019, the Massachusetts bill to ban deepfakes had two cosponsors, but this time Representative Livingstone is going it alone. The bill is losing support rather than gaining it. You may think that I should take heart from this trend, but I do not. Why? Because of the difference between bad ideas and nuclear waste.
At some point, with the passage of time, nuclear waste stops being dangerous. Not so with bad ideas. You cannot summon forth the ideas that H. 1755 embodies, bottle them, bury them in a lead-lined underground vault, and wait for them to disintegrate into harmless nothingness. No, they remain in the atmosphere, floating freely like wraiths, sometimes for decades, until they suddenly make themselves manifest as emergency bills or outside sections in the State budget.
That is why I am no more relieved at the bill’s feeble prospects this session than I am about entrusting the task of identifying deepfakes to the likes of Twitter, Microsoft, and the BBC.
P.S. For the full text of Representative Jay Livingstone’s bill, H. 1755, scroll down below the image.
SECTION 1. Chapter 266 of the General Laws is hereby amended by inserting after section 37E the following section:-
Section 37E 1/2. (a)As used in this section, the following words shall have the following meaning unless the context clearly requires otherwise:
“Audiovisual record,” any audio or visual media in an electronic format and includes any photograph, motion-picture film, video recording, electronic image, or sound recording.
“Deep fake”, an audiovisual record created or altered in a manner that the record would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.
(b) Whoever (1), creates, with the intent to distribute, a deep fake and with the intent that the distribution of the deep fake would facilitate criminal or tortious conduct, or (2) distributes an audiovisual record with actual knowledge that the audiovisual record is a deep fake and with the intent that the distribution of the audiovisual record would facilitate criminal or tortious conduct shall be guilty of the crime of identity fraud and shall be punished by a fine of not more than $5,000 or imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment.
No person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.
A security deposit slip up can spoil a seemingly straightforward summary process case. So MassLandlords is holding a virtual lunch-and-learn session for housing providers (12 noon on Tuesday, July 20, 2021) where I will provide an overview of this slippery subject and answer questions.
June 24, 2021:- President Biden has extended President Trump’s eviction moratorium again. The Centers for Disease Control (CDC) announced that the moratorium will remain in effect until the end of July 2021.
June 7, 2021:- The owner of a short-term rental property was not liable for the shooting death of a man who attended a party at the property, the Supreme Judicial Court (SJC) announced today in the case of Heath-Latson v. Styller.
The shooting occurred in May 2016 at the Lynnfield home of Alexander Styller, who let the house to a group of people as a short-term rental. Here is a link to the NECN coverage.
Ostensibly the booking was for a college reunion but via social media one of the group advertised the gathering as a “Splash Mansion Pool Party.” Approximately 100 people attended and in the early hours of the morning the local police received a call that somebody had been shot.
The estate of the decedent, Keivan Heath, sued the organizers and Mr. Styller (the homeowner) in Superior Court. The judge allowed Mr. Styller’s motion to dismiss, and the case went to the SJC. In upholding the dismissal, the SJC stated:
“A duty to protect against harm caused by the conduct of a third person arises where there is a special relationship between a defendant and a plaintiff such that the defendant reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so…
Here, the complaint alleges no facts suggesting that the defendant had a duty to protect the decedent from wrongdoing of a third party. Although the complaint cites a finding made by a Land Court judge in a related case that that short-term rentals have significant external effects on the neighboring community and community at large, it does not allege that short-term rentals are correlated with an increase in violent crime.”
Heath-Latson v. Styller (internal citations and quotation marks omitted)
The decision reiterates the duties of a landlord and the limits on those duties.
The SJC issued another decision involving Mr. Styller today, namely Styller v Zoning Board of Appeals of Lynnfield, in which the court upheld the ZBA’s determination that the zoning bylaw prohibited short-terms rentals even before it did so expressly in 2016.
June 3, 2021:- Today the Asset Forfeiture Commission held its sixth meeting, which consisted of a presentation by Attorney Dan Alban, co-director of the National Initiative to End Civil Forfeiture at the Institute for Justice (IJ). You can watch the hearing by clicking here.
Among Attorney Alban’s recommendations:
Not simply increasing the evidentiary standard from probable cause to preponderance of the evidence/beyond reasonable doubt. Instead, remove the financial incentive for the practice.
Using criminal asset forfeiture only and abolishing civil asset forfeiture, as New Mexico has done. IJ’s goal is not to defund the police but to restore due process. “Crime should not pay,” he said, “and it is legitimate for the State to confiscate the proceeds of crime.”
Enacting anti-circumvention laws to prevent State law enforcement simply outsourcing forfeiture to their federal counterparts. Massachusetts engages in “equitable sharing” with the federal government far more than most other States (the Commonwealth is 48th in IJ’s ranking)
Requiring greater detail in law enforcement’s reporting requirements in Massachusetts in connection with proceeds of civil asset forfeiture. Attorney Alban pointing to the 2018 report which states that 6% of the proceeds went to travel and training, 7% to equipment, with 53% listed as “other.”
After the presentation, Norfolk District Attorney Michael W. Morrissey said that he agreed with the need for more information, which should be a prerequisite to any overhaul of the system in his opinion. He stated that forfeiture is necessary to deal with those who are “undercutting” the “pretty successful consumer oriented sale of drugs,” i.e. marijuana, in Massachusetts. He held up a photograph of one of the houses he had seized, stating that it had been used as a “grow house.”
DA Morrissey also stated that prosecutors stay (i.e. pause) civil forfeiture cases until the criminal case is resolved. My review of some of the 70 or so civil forfeiture cases filed under MGL c 94C, section 47, in Hampden County Superior Court over the last year did not support that assertion but that may be a result of my sample size or of my misreading the docket. I used masscourts.org and searched under Administrative Civil Actions. Readers with the time and inclination can double-check my search in Hampden Superior Court and look for cases in the Superior Court in other counties.
In response to DA Morrissey’s request for one example of an innocent owner whose property had been forfeited in Massachusetts, Attorney Alban cited the Motel Caswell case in Tewksbury, in which the owner had not only reported criminal activity but had cooperated in a sting operation. Law enforcement seized his motel anyway.
DA Morrissey pointed out that the Motel Caswell case was an instance of “equitable sharing,” i.e. local police working with the federal law enforcement and using federal law. The Malinda Harris case did not come up during the discussion.
Co-chair Senator Jamie Eldridge announced that the commission will issue its report, with recommendations, by July 31, 2021. Between now and then the commission will have one more meeting (date to be announced).
June 2,2021:- Where is the $12 million of public money earmarked for the Eviction Diversion Initiative actually going?
Finding out is harder than you might think because the body in charge of distributing the money (the Massachusetts Legal Assistance Corporation) says that it is not subject to the Public Records Law. So on behalf of MassLandlords, I asked the Legislature to investigate.
To learn more, you can read my article in the MassLandlords newsletter by clicking here.
June 1,2021:- On Thursday, June 3, starting at 10:00 a.m., the Massachusetts commission on civil asset forfeiture will hold a meeting that you can watch live via malegislature.gov.
Readers will recall that civil asset forfeiture is where law enforcement seizes property that they have mere probable cause to believe may have been used in connection with a crime and then the owner has to go to court to prove innocence in order to get their property back. The system lets police and prosecutors treat ordinary people like an ATM.
Does this really happen in Massachusetts? Yes, as the experience of Malinda Harris, covered in Reason magazine, illustrates:
“On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris’ 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son’s illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.”
Jacob Sullum, Reason, 3.2.2021
Law enforcement seized and held Malinda Harris’s car for five years before even allowing her an opportunity to try to get it back. There is nothing extraordinary about the experience of Ms. Harris, other than the fact that she came to the attention of a nonprofit organization that was able to represent her for free. That is what makes her case exceptional.
If you think that Ms. Harris’s case is an outlier, here are some facts and figures from the Massachusetts Trial Court that speak for themselves:
In the period 2017-19 the Massachusetts attorney general and district attorneys seized more than $20 million from people who had not been accused of, let alone convicted of, any crime
In 24% of cases the amount of money seized was between $2,000 and $4,999, in 25% the amount was less than $2,000, and in one case was $6.20
Section 47(d) of chapter 94C of the Massachusetts General Laws puts the burden on a claimant to prove that the property is not forfeitable
In most cases the legal fees that an innocent owner would incur in making a claim would exceed the value of the seized property
In approximately 80 per cent of civil asset forfeiture cases in the period 2017-19 the owner made no claim
I intend to watch the commission’s hearing and to post an update soon afterwards. And I will be right on the keyboard as soon as the Judiciary Committee schedules a hearing for the bill that I wrote (H.1724) to provide free counsel in civil asset forfeiture cases.
In the meantime, for the op-ed Malinda Harris co-authored in USA Today click here. For the latest report from the Institute for Justice, titled Policing for Profit, click here.
For a Cato Institute interview with Attorney Tom Sandefur on the subject of civil asset forfeiture (with a mention of the Malinda Harris case) click here.
And lest you think that this is a libertarians-only hobbyhorse, click here to read about the ACLU’s position.
May 28, 2021:- Rents are rising again in the United States, according to Fannie Mae as reported by Bloomberg.
This affects everyone, not just renters. Why? Because, as this article in the Wall Street Journal points out, it contributes to inflation:
“Higher rents could play a role in an anticipated rise in inflation, unleashed by waves of stimulus checks, low borrowing rates and pent-up demand after months when the pandemic damped consumer spending. Rent accounts for about one-third of the consumer-price index, which economists expect to tick higher in the months ahead.”
Will Paker, “Apartment Rents Rise; Perks, Discounts Fade: Covid-19 vaccine rollout, higher employment bring more people back into cities looking to rent,” Wall Street Journal (April 24, 2021). Paywall.
Talk of inflation always makes me think of Berlin, of which more below.
Why are rents rising? I do not pretend to be an economist but I suspect that the governmental response to COVID-19, e.g. eviction moratoria, might have something to do with it. After all, if you want to make something more expensive, you make it scarce.
The effects of rising rents on renters – known to politicians as “voters” – are obvious and unwelcome. How the politicians will respond to the predicament of these voters is less obvious. But were I a betting man, I would remember that the number of voters who are renters is vastly greater than the number of voters who are landlords, and put money on the politicians doing something that panders to renters. Sadly, as the Duke of Wellington once pointed out, something is usually the wrong thing to do.
Here in Massachusetts, I expect that lawmakers will enact new measures to supplement the laws that they enacted during the State of Emergency, measures that on the face of it look friendly to renters and not so friendly to landlords. Even if those laws helped cause rents to rise (the phenomenon that actually hurt renters) they will opt for more of the same.
I now refer to this approach to policymaking as the Father Ted Fine-Tuning Approach. Click here to see what I mean.
If they were trying to drive you out of business, what would they do differently?
What proposals have lawmakers tossed into the legislative hopper so far? At the start of the session State Representative Mike Connolly, a Democrat and member of Democratic Socialists of America, sponsored a bill to cancel rent, HD.4072.
That particular bill seems to be in limbo, but another of Representative Connolly’s bills, H.1378, is moving along. It would enable towns and cities to impose rent control. Lest owners try to avoid rent control by taking their units off the market, Representative Connolly has another bill that would allow municipalities to impose excise tax on units that are vacant for more than 90 days (H.2852).
Representative Connolly’s bills reflect the mood of the Boston chapter of Democratic Socialists of America, which considers rising rents, along with evictions, something to “fight.” The Boston DSA site states that its Housing Working Group is
“concerned with organizing around one of our most fundamental rights — the right to a stable and affordable home. In Boston this right has come increasingly under attack as rent prices skyrocket, rising by 25% in the last five years. The Housing Group works closely with City Life Vida Urbana, a local tenants rights organization, as well as other community groups, to fight rent increases and evictions in the neighborhoods where these trends are most acutely felt.”
So in answer to the question I get asked from time to time by landlords in Massachusetts, “Are they trying to drive us out of business?” the answer is a qualified yes. If by “they” you mean state legislators, I do think some of them are trying to drive landlords out of business. Those who are committed socialists wish to bring real estate, including rental properties, under government control.
The first draft of the Democratic Socialists of America 2021 platform states that:
“As socialists we ultimately believe in the abolition of capitalism and the creation of a democratically run economy that would provide for people’s needs without the distortion of the profit motive, and we support economic regulation that moves us closer to that vision.”
Not surprisingly then, one of the party’s medium-term goals is to:
“Nationalize and socialize (through worker and community ownership and control) institutions of monetary policy, insurance, real estate, and finance.”
That is on page 4, under the title Economic Regulation. On pages 9-10, under the title Housing, the Democratic Socialists of America announce that:
“We seek to use this [COVID-19] crisis to build on the insurgent tenant movement and further decommodify housing and land. This can be done through canceling rent, closing eviction courts, and, as landlords exit the market, using State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.”
In this way the first draft of 2021 platform of Democratic Socialists of America offers a clear answer the question “Are they trying to drive us out of business?” Yes, they wish to use the COVID-19 crisis to cancel rent, close eviction courts, “and, as landlords exit the market, use State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.” Their words, not mine.
As the long-term demand, they want “democratically controlled, publicly run housing everywhere.” The medium-term demand?
Pass a universal tenants bill of rights that includes:
Right to renew your lease
Universal rent control
Right to organize a tenants’ union in your home
Universal right to counsel in housing court
Organizing a tenants union, or anything else, will pose a challenge if the Democratic Socialists achieve one of their medium-term Economic Regulation demands namely the “public ownership and control of social media platforms.” With the government controlling social media, good luck organizing anything more than the occasional day-trip to the tractor factory for the Young Pioneers.
But kudos to Democratic Socialists of America for their candor about wanting to use the COVID-19 crisis to drive landlords out of business and, more generally, “economic regulation that moves us closer to that vision.” What vision? The abolition of capitalism.
Onward to Berlin
When DSA legislators promote measures that a reasonable objective observer with some experience of rental housing, markets, and human nature would consider antithetical to the continued private ownership of rental properties, those legislators are not being naïve. They are being dedicated. In contrast, when non-DSA legislators – rank and file Democrats of the go-along-to-get-along variety – endorse these measures, naivete is the most generous word to describe them with.
Bills that are already popular among non-DSA Democrats in the State House are H.1434, which would effectively prohibit evictions for non-payment of rent, and H.1426, which would give tenants the right of first refusal if the owner tries to sell (thereby automatically delaying by months any sale to someone other than the tenants or the organization of their choice). This will make the business of being a landlord more difficult, and it is important to remember that this not a bug but a feature.
What’s next? How will they get from rendering the business of being a landlord increasingly difficult to making it completely non-viable? That is, after all, the avowed goal of Democratic Socialists of America. Perhaps they will look to Berlin.
As I mentioned, at the mention of inflation my mind turns to Berlin (here’s why) so I looked into what left-leaning Berliners are up to nowadays. As luck would have it, some of them are promoting a measure that I am sure the Democratic Socialists of America would approve of, namely the expropriation of rental properties. Expropriation is where the government takes private property (in the US we refer to it as eminent domain).
Slatecovered this campaign recently, putting in the context of rising rents:
“Data from Guthmann Estate, a real estate company in Berlin, shows that the median rent in the city rose by more than 70 percent between 2012 and 2021.”
Here’s a link to an article on the same subject titled “We Want a Society Without Landlords” in Jacobin magazine, a publication that describes itself as “a leading voice of the American left, offering socialist perspectives on politics, economics, and culture.” The authors explain that seizing 240,000 units of private housing is not really all that radical, which alone makes it is well worth a read.
Socialists in Berlin want to stop landlords from raising the rent by stopping them from being landlords. Like many ideas that people tried in the 20th century, it has the allure of simplicity.
To solve the rising-rent problem in Massachusetts, perhaps DSA will try to put a question on the ballot to take by eminent domain rental units that have remained vacant for 90 days or more (or just take all rental units, which would be more efficient).
I think not, but not because I doubt their candor. Democratic Socialists of America are admirably up-front about their wish to use the COVID-19 crisis to cancel rent, close eviction courts, “and, as landlords exit the market, use State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.”
Why would they not put expropriation on the ballot?
Because it is not necessary. All they have to do carry on making it harder and harder for private property owners to provide rental housing and before long those owners will, as the Democratic Socialists of America predict, exit the market. Onward to Berlin. East Berlin, that is.
May 19, 2021:- The Florida Association of Realtors® and R.W. Caldwell, Inc., have filed a complaint in the United States District Court in the Middle District of Florida, Tampa Division, asking the court to set aside the partial eviction moratorium that the Centers for Disease Control and Prevention (CDC) imposed, first at the direction of President Trump and then at the direction of President Biden.
One judge did just that quite recently. In early May Judge Dabney Friedrich set aside the partial eviction moratorium but stayed the order, i.e. put it on hold, while the Biden administration appeals the case. This means that the CDC partial eviction moratorium remains in effect for the time being.
This new complaint asks for the same kind of relief that Judge Dabney ordered earlier in the month. I quote two paragraphs of the complaint that get to the heart of the matter.
Paragraph 40 of the complaint states:
“The Eviction Moratorium contains no findings and relies on no evidence to support its stated assertion that Covid-19 will spread between states or United States territories if landlords are permitted to exercise their contractual rights to evict tenants who fail to make rent payments as required by their leases.”
That is why I call it a partial eviction moratorium, by the way. It only covers some evictions, i.e. nonpayment cases. Why the tenants in that kind of case are more likely than tenants in other sorts of cases (e.g. those being evicted for, say, criminal activity) to contract and transmit COVID-19 is not clear, at least not to me.
And the CDC certainly did not issue a moratorium on moving house. House sales have done very well during the emergency, I believe. Lots of people are buying and selling, moving from place to place. The CDC did not try to ban residential real estate transactions.
Getting to the constitutional argument, paragraph 5 of the complaint states:
“The CDC predicates this unprecedented action on its statutory authority to prevent the interstate spread of disease, but that authority does not make the CDC the nation’s landlord-in-chief any more than it places the CDC in charge of citizens’ social media or the national minimum wage. Were it otherwise, then Congress would have impermissibly turned over its lawmaking authority to an unelected administrative agency. The United States Constitution and its nondelegation doctrine prevent Congress from doing so. Indeed, the Constitution does not authorize Congress or the CDC to interfere with the purely local matter of tenants’ occupancy of individual rental properties.”
What’s the problem with an unelected administrative agency exercising the lawmaking authority that the Constitution grants exclusively to the Congress? Why is it unconstitutional for unelected government employees to legislate?
The reason has to do with democratic accountability, an essential requirement for a self-governing republic of free people, and stripped of legal jargon it is this: We can’t throw out those rascals. The only rascals We the People can throw out are the rascals we elected in the first place. Unelected rascals are beyond our reach.
What will happen to the CDC’s partial eviction moratorium? Stay tuned.
May 18, 2021:- If you like to read judges’ decisions about landlord-tenant disputes, you will be glad to learn that Volume 9 of the Western Division Housing Court Reporter (an unofficial compilation of decisions and orders issued by the Western Division Housing Court) is available online. To see it, just click here.