Patterico's Pontifications

6/19/2017

A Great Day for Free Speech: The Slants (and Ron Coleman) Win

Filed under: General — Patterico @ 8:13 am

The Slants have won. The disparagement provision of the Lanham Act has been declared unconstitutional, to the joy of free-speech advocates everywhere — and to the surprise of nobody following the case. In January, after reviewing the oral arguments, I wrote:

I remain cautiously optimistic that the disparagement provision of the Lanham Act, which allows the U.S. Patent and Trademark Office (USPTO) to deny trademark protection to so-called “disparaging” trademarks, will be struck down as a violation of the First Amendment to the U.S. Constitution. I predict the vote will be 7-1 — with Justice Sotomayor, the “wise Latina,” in the minority.

Well, even Justice Sotomayor hopped on board, and the decision was a hearty unanimous 8-0 — albeit with a bunch of opinions that I currently lack the time to sort through.

It’s a great day for the First Amendment.

If you want to read more about the background, you can do so here.

Congratulations to Ron Coleman of Archer & Greiner and the Likelihood of Confusion blog. I’m sure everyone remembers that Ron, along with the redoubtable Bruce Godfrey of Jezic & Moyse LLC, is still defending me in a censorious lawsuit brought by convicted bomber and perjurer Brett Kimberlin. Give him a shout-out on the Twitters for me.

[Cross-posted at The Jury Talks Back.]

59 Responses to “A Great Day for Free Speech: The Slants (and Ron Coleman) Win”

  1. Ding.

    Patterico (c60007)

  2. I gave him a shout on the Twit.

    SPQR (156f39)

  3. does this mean Anthony Federico gets his job back

    happyfeet (28a91b)

  4. From Justice Alito:

    “The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may ‘disparage . . . or bring . . . into contemp[t] or disrepute’ and ‘persons, living or dead.’ 15 U. S. C. 1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

    Today’s decision bodes well for the Washington Redskins.

    Dana (023079)

  5. Go Redskins!!!!

    Go Blackhawks!!!!

    Go Cleveland Indians!!!!

    Ipso Fatso (7e1c8e)

  6. Congratulations on the accuracy of your fortune cookie, Patterico. The Court confirmed that the PTO’s policy did not stand a Chinaman’s chance.

    May I take it that the State of Indiana is now safe, too?

    nk (dbc370)

  7. The Redskins earn their first ever victory in the month of June.

    aunursa (92ec49)

  8. Congratulations, Mr. Coleman, and thank you for taking on fights like these. You are the best kind of lawyer.

    DRJ (15874d)

  9. A legal victory for free speech. I wonder if the left will comply, or double down in boycotting and protesting.

    Well, not really. Of course they’re going to double down. They never accept a Supreme Court decision that doesn’t give them what they want, not even if it’s unanimous.

    Evan Carter (550dba)

  10. Pretty terrible defeat for the “hate speech” exception that Obama’s folks tried to establish. This would be roundly denounced on college campuses were it not for the fact that Asians aren’t a victim class in the Left’s mythology.

    Kevin M (752a26)

  11. Not to be a nitpick, but I believe it was 7-0 “Gorsuch took no part in the consideration or decision of the case”

    TIMOTHY CARROLL (2f01c1)

  12. oh my goodness could this harvardtrash Gorsuch loser BE more effing useless

    happyfeet (28a91b)

  13. 11. 12. Gorsuch would not vote on any cases that were heard before he was on the court. That’s why it was 8-0. I don’t know where somebody gets 7-0.

    Although he akready wrote one opinion, Girsuch went through a formal inauuration ceremony only last week. He sat in Chief Justice Marshal’s chair, which was positioned in front of the court, facing it, and was invoited to take his seat on the bench.

    Both Donald Trump and Melania Trump were present but didn’t say anything although Chief Justice Roberts pointed out President Trump.

    Melania and her son Barron have now moved to the White House and security around Trump Tower has been greatly reduced. The building may still be a bit symbolic and Eric and Donald Trump Jr still have offices there but they are not considered so important as his wife (and minor son?) and anyway are there only part of the time.

    Sammy Finkelman (6f9f42)

  14. Or it might be that Donald Trump is not coming back there any time soon, so they feel they can let it get rigged with explosives or something. Or the cordon around a president is too tight.

    Sammy Finkelman (6f9f42)

  15. ok he can have a hall pass on this one

    happyfeet (28a91b)

  16. Congratulations indeed to Mr. Coleman! Perhaps you should tweet him to tell him to look for such plaudits in the comments here, since some of us still eschew Twitter.

    I wish that there were a comprehensive majority opinion. At a glance, it looks to me that the best language — that rejecting the notion of “hate speech” as an exception to the First Amendment — is largely in Part IV of Justice Alito’s opinion, at pp. 24-25 of the .pdf of the slip opinion. But Part IV was joined only by Roberts, Thomas, and Breyer, which means it might not be considered “binding” precedent on a future SCOTUS. Am I wrong in that impression?

    This case also seems an excellent illustration of how the SCOTUS doesn’t predictably split along “liberal/conservative” or POTUS-who-appointed-them lines in First Amendment cases.

    Beldar (fa637a)

  17. Didnt the Redskins “controversy” pretty much implode in May last year when an overwhelming percentage of polled Native Americans said the name was not offensive?

    harkin (536957)

  18. Dana, the specific sentence you quoted in #4 above — “Speech may not be banned on the ground that it expresses ideas that offend.” — is marvellous. It’s actually in his introduction, though, before the Roman numerals start. I think that’s still likely to be considered part of his “Opinion of the Court,” meaning something endorsed by a majority rather than just a plurality. But that sort of very broad language appears in a lot of other, prior First Amendment cases, and it’s one of those things the “Hate Speech Exception” proponents think they have overcome by their specifics. In other words, they’ll concede that as a general rule, but they think they’ve carved out an exception. So I don’t think there’s likely to be a future fight over whether that sentence is or isn’t part of an “Opinion of the Court.”

    What I wish had drawn a five-Justice majority was this language from Part IV (pp. 24-25 of the .pdf, boldface mine, some cites omitted):

    It is claimed that the disparagement clause serves two interests. The first is phrased in a variety of ways in the briefs. Echoing language in one of the opinions below, the Government asserts an interest in preventing “‘underrepresented groups’” from being “‘bombarded with demeaning messages in commercial advertising.’” An amicus supporting the Government refers to “encouraging racial tolerance and protecting the privacy and welfare of individuals.” But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).

    Alas, Justice Holmes’ dissent was just a dissent, and Justice Holmes can’t be the fifth vote to convert this into undeniably binding (short of being overruled) precedent for the SCOTUS and lower courts in future cases.

    Beldar (fa637a)

  19. Eight Justices (all but Gorsuch) voted. They split up very widely:

    ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which ROBERTS, C. J., and THOMAS and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., took no part in the consideration or decision of the case.

    Joining in the “judgment” means that Justice agreed that the Eight Circuit’s judgment should be affirmed. Eight of the eight participating did that, so the judgment of the SCOTUS is unanimous, 8/0.

    The number of Justices writing or joining in an “opinion,” by contrast, indicates how strong a precedent is set by the reasoning and rationale expressed for coming to that result in the written opinion(s) that accompany a particular judgment. If there is a majority of the participating Justices (still five in an eight-member panel like this), that becomes the “Opinion of the Court,” meaning it’s strong precedent that ought be followed in the future unless and until it’s overruled by a future SCOTUS (no lower court has that power).

    There was such a majority for Parts I, II, and III-A of Alito’s opinion, comprising himself and everyone else participating (8/0). On Part II, it was only 7/1, but that’s still a majority and thus part of the “Opinion of the Court.”

    But Parts III-B, III-C, and IV were only joined in by Alito himself, plus Roberts, Thomas, and Breyer, and thus must be considered only a four-Justice plurality opinion, which isn’t binding precedent that must first be overruled before it can be ignored (in theory, if they’re being intellectually honest about overruling, which sometimes they aren’t).

    Beldar (fa637a)

  20. I still got it not quite right. I have so much respect for the official Reporter of the SCOTUS, who IIRC writes the syllabus including the “who joined what” portion I quoted above.

    Trying again:

    There was such a majority for Parts I, II, and III-A of Alito’s opinion, comprising himself and everyone else participating (8/0) on parts I & III-A. On Part II, it was only 7/1, but that’s still a majority and thus part of the “Opinion of the Court.”

    Beldar (fa637a)

  21. “Hail To The Redskins”

    mg (31009b)

  22. Political gerrymandering case going up, too. That remains are area of special interest for me – wrote my case note on that subject for law review.

    Seriously doubt that SCOTUS is going to expand much on Vieth, though.

    Leviticus (efada1)

  23. Leviticus, I started off assuming that today’s action was noting probable jurisdiction for an appeal as of right from a special three-judge panel decision, rather than a cert grant. But it appears they’ve postponed even that determination. Today’s docket ruling simply reads:

    Further consideration of the question of jurisdiction is POSTPONED to the hearing of the case on the merits.

    Scotusblog, typically, has a good write-up of the history and context of today’s decision.

    SCOTUS hates those automatic appeals as of right, and lately — indeed since Vieth — has been less than fully intellectually honest IMHO is ducking some others. I’ve no reason to think that Gorsuch will now vote otherwise than Scalia would have on these cases, so I don’t think there’s likely to be a blockbuster opinion on gerrymandering unless and until the balance of the Court shifts decisively, as it would if Justice Breyer or Ginsburg were to resign. But we’ll see, and I join you in wondering where this will go.

    Beldar (fa637a)

  24. I would like to hear more, Leviticus. Please educate me about what you learned on the redistricting topic.

    DRJ (15874d)

  25. And thank you for your comment and the links, Beldar.

    DRJ (15874d)

  26. Three-judge panels are weird and unique. The Left would go berserk, though, if Trump or any GOP POTUS tried to amend the judiciary act to treat voting-rights cases like any other federal-question cases, and thus subject to the normal cert process instead of these “appeals as of right.” But I no longer think a credible case can be made that the direct-appeal-as-of-right special rule is required; all it’s ended up doing is make the SCOTUS more devious, without effectively forcing them to deal with every such appeal on its merits.

    Beldar (fa637a)

  27. *Three-judge civil rights panels (comprising at least one circuit judge but typically at least one district judge), I meant. I wasn’t referring to the normal three-judge panels (normally consisting only of circuit judges, except for the occasional district judge or retired SCOTUS Justice sitting “by designation” on a particular panel) that hear ordinary appeals.

    Beldar (fa637a)

  28. The Slants should not be confused with the all-girl group called The Slits.

    AZ Bob (f7a491)

  29. They never accept a Supreme Court decision that doesn’t give them what they want, not even if it’s unanimous.

    Almost unanimous. I think Gorsuch didn’t opine, but the simple explanation for that is he wasn’t there for the arguments.

    In all, an astounding win for the First.

    Bill H (383c5d)

  30. Very good, and sensible.

    Think I’ll start a band called “The Wise Latinas.”

    Patricia (5fc097)

  31. Thanks, friends! All of you!

    Ron Coleman (574fd3)

  32. Congratulations, Mr. Coleman. (Too absorbed making puns to say it earlier.)

    nk (dbc370)

  33. How nice of him to interrupt what ought to be a night of singing and champagne to drop by and say hello! Mr. Coleman, if you happen to glance back, know that I’m at this moment hoisting an adult beverage in honor of your victory!

    Beldar (fa637a)

  34. Yes, congrats Mr. Coleman!

    Patricia (5fc097)

  35. Well done, sir.

    Dave (711345)

  36. “I’ve no reason to think that Gorsuch will now vote otherwise than Scalia would have on these cases, so I don’t think there’s likely to be a blockbuster opinion on gerrymandering unless and until the balance of the Court shifts decisively, as it would if Justice Breyer or Ginsburg were to resign. But we’ll see, and I join you in wondering where this will go.”

    – Beldar

    One distinct possibility: Justice Kennedy, who recognizes the importance of his vote relating back to Vieth, and recognizes (and adores) his own “swing-vote” legacy, and recognizes that he is in the very last years of his career, decides to take this opportunity to write his non-partisan swan song in the form of a concrete test for overturning political gerrymanders – and all of this at the very height of toxic partisanship vis a vis Trump! Think about it – the hagiography writes itself! Justice Kennedy saves America from toxic partisanship!

    (Or something to that effect, anyway.)

    Leviticus (efada1)

  37. DRJ and Beldar,

    Sorry for the delayed response. I wrote my law review case-note on a New Mexico Supreme Court case called Maestas v. Hall, which dealt directly with the issue of partisan gerrymandering. (Undermining Checks and Balances: The Fallout of Maestas v. Hall).

    Briefly: in 2011, New Mexico’s Democratic legislature passed a blatantly partisan and gerrymandered redistricting plan. The Republican Governor vetoed that plan, pointing out that it violated the equal population principle and did so for purely partisan reasons. The NM Supreme Court consolidated all redistricting litigation under one retired Judge (James Hall) with orders to draft a plan passing constitutional muster. A bunch of plans were set in front of him, and he ended up selecting one of the Governor’s plans. The case went to the NMSC on a writ of superintending control.

    The legislative plaintiffs argued that a “thoughtful consideration” standard entitled them to significant deference from the judiciary, despite the Governor’s veto. The governor argued that such an interpretation essentially cut the Executive branch out of the legislative process on redistricting issues. The New Mexico Supreme Court sided with the Legislature, noting that the legislative branch (rather than the judicial branch) was the proper body for balancing political interests.

    My note heavily criticized the decision of the NMSC. An executive veto in a divided government was a fantastic way to impede partisan gerrymandering, and I was disturbed that NMSC undermined that protection. I also repeatedly questioned the logic of shoehorning a task that almost everyone agrees should be non-partisan (redistricting) into the purview of an explicitly partisan body (a legislature) when there is a perfectly capable non-partisan body (the judiciary) available. If the purpose of courts is to ensure fair process while leaving substantive outcomes to the will of the people, then redistricting seems a naturally judicial task (particularly with the advent of technologies that vastly decrease the time and expertise required to craft redistricting plans).

    The purpose of the note was threefold: first, to emphasize the relative unfitness of legislatures to manage redistricting in a fair manner; second, to stress the importance of checks on legislative partisanship; and third, to urge state courts to embrace a more aggressive role in the redistricting process whenever the legislature and executive come to impasse. I explicitly encouraged state courts to end-run SCOTUS precedent regarding “pre-emption of the legislative task.” In contrast to a lot of case-notes, I tried to go well beyond summarizing and mulling over a recent case, to adopt a position on it and argue it fervently. I also snuck in a plug for proportional representation systems, which defeat gerrymandering by eliminating districts altogether – the connection between the two subjects was what first got me excited about writing about the case.

    The note eventually led to an awkward discussion with the opinion’s author, Justice Ed Chavez (who I really respect and like at a fundamental level). He was interviewing me for a clerkship (that I didn’t get, although he did graciously call me to tell me that the note had given him some things to think about). Ultimately, it all worked out for the best – I think I am better suited for advocacy than the even-handedness of judicial work – and I am still real proud of the note.

    Leviticus (efada1)

  38. Shorter answer: I learned about the development of the law of partisan gerrymandering, the long-standing discomfort of the judiciary with handling the political task of redistricting, and the resulting absurdity of trusting a partisan body to handle that nonpartisan task.

    Leviticus (efada1)

  39. Ron also posted on Google+ a very nice acknowledgement to those involved in the Slants case.

    SPQR (156f39)

  40. That is an excellent comment, Leviticus. You gave the subject a lot of thought and I like that you were willing to take a position. Thank you very much for linking your comment and taking the time to summarize it here.

    DRJ (15874d)

  41. Thanks, DRJ – and thanks for taking the time to read it. Much appreciated. I will be watching the proceedings in Gill v. Whitford with great interest.

    Leviticus (efada1)

  42. @ Leviticus: Thanks for the history re your casenote & gerrymandering! It’s a controversial topic indeed. But you & I come at it from absolutely opposite directions. You write:

    I also repeatedly questioned the logic of shoehorning a task that almost everyone agrees should be non-partisan (redistricting) into the purview of an explicitly partisan body (a legislature) when there is a perfectly capable non-partisan body (the judiciary) available.

    I don’t agree with a word of that, actually, although I understand and genuinely respect the argument (and of course, he who’s making it here, and the clarity and concision with which you make it). I think it is utterly impossible to do this task on a nonpartisan basis. I do not believe the task can be delegated to either other branch of government, and that delegating it to the courts (even if the judiciary weren’t elected, it’s still appointed by politicians) is no more than a dodge and a shuffling that won’t actually get politics out of the system (are politics out of the SCOTUS? See your own comment about Justice Kennedy, which I agree is plausible but unlikely). I disagree that judges are well suited for the task; they don’t want it; and they don’t do it with any more political legitimacy than a legislature, but indeed, with less. Gerrymandering not only is, but must be, an exercise in raw political power by the majority party at the state legislature level, necessarily. There is no fix for this which eliminates partisanship. The check for the problem of gerrymander abuse is the ballot box for state legislature candidates, which is closest to the voting public’s continuing control and better subject to its reformation. I’ve seen that work during my lifetime as Texas switched from a majority-Dem to majority-GOP state, and it actually worked quite well if you believe in small-d democracy. Every time the courts have been involved, they’ve disempowered Texas voters.

    All that said, I write to respectfully flag our differences, not to persuade you to my point of view. The one thing we surely agree upon is that America deserves better jurisprudence from its SCOTUS than it has gotten in the last 50 years on this topic, whose difficulty surely reflects its controversial nature but is not an adequate excuse for the fractured opinions we’ve gotten lately.

    Beldar (fa637a)

  43. And don’t get me started on Section 5 preclearance, which in 2017 is as offensive as it is unconstitutional. It chaps my behind for a statute to conclusively and irrefutably presume that my state is run by racists but New York State is not.

    Beldar (fa637a)

  44. (It’s no longer remotely “remedial,” in other words, which was ever its only excuse for government sorting by race in violation of the plain language of the Fourteenth Amendment.)

    Beldar (fa637a)

  45. Of as I’ve often written: Gerrymandering is the worst way to establish voting districts, except for every other method that’s ever been or could be used.

    Beldar (fa637a)

  46. *or as … what’s my hurry? I do need to try harder to proofread a little before hitting “Submit Comment.”

    Beldar (fa637a)

  47. I understand and respect your outlook as well, Beldar. The question I have is this: do you believe that redistricting should be a nonpartisan endeavor, ideally, to the extent possible? Or do you believe that it should be approached as a partisan endeavor? In an ideal world – if a true nonpartisan existed – would you prefer for a partisan or a non-partisan to draw your redistricting map? Serious question, and I’m interested in your thinking on this.

    I think there is plenty of room for a debate between republicanism and small-d democracy, in this area. While I agree that hoping for a completely disinterested decision-maker would be naive, I do think that it’s always advisable to think about incentive structures in decision-making and the degrees of separation between an operator and the field of operation. The calculus of self-interest in redistricting is far more attenuated for judges than for legislators. Whether judges want the task or not should be irrelevant, in my opinion – they are the least partisan of three partisan branches, and I firmly believe that redistricting (if we insist on maintaining districts) should be as nonpartisan as human nature allows.

    Leviticus (efada1)

  48. When John Burton gerrymandered the California delegation was the outrage wheat least its not all clear judges are any less partusan

    narciso (d1f714)

  49. This will be a great discussion.

    As an aside, ditto Beldar 43. Continuing preclearance is insulting, and I think intentionally so.

    DRJ (15874d)

  50. It appeals the liberal predrliction to prejudge regions as backward and unelightened.

    narciso (a4734e)

  51. with gerrymanders you can make a hat or a brooch or a pterodactyl

    happyfeet (a037ad)

  52. @ Leviticus, who asked (#47):

    [D]o you believe that redistricting should be a nonpartisan endeavor, ideally, to the extent possible? Or do you believe that it should be approached as a partisan endeavor?

    I believe it is no more possible to eliminate politics from redistricting than it is to eliminate killing the cows who go into the slaughterhouse if you want to have hamburger come out the other side.

    The cows must die unless we’re to go vegan. We can soothe our own tender sensibilities — maybe create a lottery, set two randomly selected cows free as part of a photo op, like the POTUS turkey at Thanksgiving. But that’s window dressing, and anyone who falls for it is fooling themselves. Best to get to the bloody work, do it in bright sunshine, and have it done by the people who are easiest and quickest to vote back out of office with the smallest number of votes, i.e., state legislators.

    I credit you, and many, many others who disagree with me on this, with absolutely good intentions and motivations. I admit that I am jaded. I don’t deny that gerrymandering can and frequently does lead to overreaching. But for example, the Martin Frost gerrymander of Texas in the 1990s survived for years and years into the new millennium even though the legislative, executive, and judicial branches of Texas government had all gone solidly GOP. We continued to have a wildly disproportionate number of Dems in the U.S. House as a result of that gerrymander, and the normal democratic processes would have corrected that abuse and brought the state’s U.S. House delegation much more closely in balance with its actual current voting population. But court interference, some of it mandated by Section 5, delayed that for years, and of course it’s generated this cottage industry in voting rights litigation that thrives in the precedential murk and partisan politics we seem to be stuck in.

    Beldar (fa637a)

  53. “The cows must die unless we’re to go vegan.”

    – Beldar

    The question, then, is what it means to “go vegan.” Certainly, there is at least one way whereby the cows might live (we go vegan), and politics might be eliminated from redistricting (we do away with districts).

    I would submit that, at a systemic level, there ways that fewer cows might die and politics might be reduced in redistricting. Whether that is the soothing of tender sensibility or a pragmatic step toward a desired outcome depends, I think, on whether one considers nonpartisan redistricting to be an ideal outcome. If it is a desirable objective, then steps toward it are desirable steps. If the objective is not desirable, we are relieved of the burden of plotting (or debating) a path toward it.

    Leviticus (efada1)

  54. 43. Beldar (fa637a) — 6/20/2017 @ 10:21 am

    It chaps my behind for a statute to conclusively and irrefutably presume that my state is run by racists but New York State is not.

    Actually the Bronx and Brooklyn – and Manhattan too – were covered by Section 5 because it was a percentage of the eligible population who were registered test. New York State did have a literacy test.

    https://www.justice.gov/crt/jurisdictions-previously-covered-section-5

    New York:
    Bronx County Nov. 1, 1968 36 FR 5809 Mar. 27, 1971
    Bronx County Nov. 1, 1972 40 FR 43746 Sept. 23, 1975
    Kings County Nov. 1, 1968 36 FR 5809 Mar. 27, 1971
    Kings County Nov. 1, 1972 40 FR 43746 Sept. 23, 1975
    New York County Nov. 1, 1968 36 FR 5809 Mar. 27, 1971

    And, especially after 1982, the Voting Rights Act was used to mandate what would otherwise be called gerrymandering, and to preserve districts and incumbents where the inbhabitants had voted with their feet.

    http://www.wnyc.org/story/301391-explainer-supreme-court-voting-rights-and-new-york/

    The Justice Department has rejected only 13 out of 2,000 changes submitted for approval since 1968, according to the New York Times. Among those 13 the Times said was “a City Council redistricting plan that the government said would hurt Hispanic voters, a proposal to replace the elected members of a Bronx school board with appointed officials and an election procedure plan that failed to provide Chinese-Americans with translated ballots.” None of the city’s proposed changes have been rejected since 1999…

    …This decision may impact New York voters as early as the September primary elections. Last week the state legislature passed a bill to bring back the lever voting machines. That move would have required pre-clearance from the Justice Department under the Voting Rights Act before the decision. Now that’s been overturned, it speeds the way for New York to bring back the old machines.

    Sammy Finkelman (6f9f42)

  55. Off topic but interesting:

    http://www.thenewatlantis.com/publications/growing-pains

    There’s an epidemic: (but nobody seems to blaming vaccines)

    ● The Gender Identity Development Service in the United Kingdom, which treats only children under the age of 18, reports that it received 94 referrals of children in 2009/2010 and 1,986 referrals of children in 2016/2017 — a relative increase of 2,000%.[11]

    The service also reports that it received six referrals for children under the age of 6 in 2009/2010, compared to thirty-two referrals for children under the age of 6 in 2016/2017 — a relative increase of 430%.[12]

    ● In a brief paper by psychologists from a gender clinic in Toronto, the authors reported a large increase in the number of referrals for children (ages 3 to 12) per year between 1988 and 1991, when the number of children referred went from around 40 per year to around 80, a rate that remained steady through 2011.[13]

    The authors also reported that between 2004 and 2007, the rate of adolescents (ages 13 to 20) referred to their clinic rose from roughly 20 per year to 60, and then to nearly 100 per year by 2011.[14]

    ● In a paper by clinicians at Children’s Hospital Boston, the authors reported on the number of individuals who presented at the hospital with gender identity issues. Between 1998 and 2006, such patients presented to the hospital’s Endocrine Division at an average rate of 4.5 patients per year, but in the period from 2007 to 2009, after the hospital opened a gender identity clinic, the annual average of patients presenting with gender identity issues rose to 19 patients per year.[15]

    ● In a paper published in 2016, physicians from an Indianapolis pediatric endocrinology clinic reported a “dramatic increase” in referrals for gender dysphoria since 2002, finding that of 38 patients referred between 2002 and 2015, “74% were referred during the last 3 years.”[16]

    The authors emphasized that their clinic does not specialize in gender dysphoria, and that “the remarkable increase in the number of new patients seen in our clinic over the last 3 years has occurred even though our referral base is unchanged, and our clinic has not specifically advertised its care for transgender patients.”[17]

    Sammy Finkelman (6f9f42)

  56. @ kish (#53): Thanks, as always, for your civil and thoughtful reply! We’ve just about marked out our respective thoughts and the extent to which they agree and disagree. Re this:

    If the objective is not desirable, we are relieved of the burden of plotting (or debating) a path toward it.

    I agree with that, but I’d say it’s also true once we conclude that the objective is impossible to achieve. It’s not that I think partisanship in redistricting is a good thing. I think it is a bad thing that, when done transparently and at the lowest level of democratic government, is less bad than any other genuine possibility.

    It seems like it ought to be possible to determine compact and rational districts of comparable voting population sizes without reference to politics. That is an illusion. You can even try to say, “We’re doing it by computer!” But someone write the code. No commission is exempt, regardless of the intentions when it is founded, and because of the stakes, one or both parties will try to subvert its nonpartisanship; given that that such commissions comprise human beings, one party or the other will inevitably succeed.

    Your proportional representation idea solves that problem, but at the expense of divorcing my vote from those of my closest neighbors. “At large” delegates are less representative of anyone in particular. I want representation that is accountable to me because it’s from someone living in my district. And I would view the loss of that as outweighing, by far, the benefit of eliminating district lines.

    I do thank you, though, for the time and thought you’ve shown in our discussion, which I’ve enjoyed, and without intending to cut it off, I’d be content now to table it until we see what the SCOTUS does next, at which time I’d definitely enjoy resuming it! Cheers, my friend.

    Beldar (fa637a)

  57. Beldar,

    I agree with all of the trade-offs you’ve laid out, and make many of the same arguments (re: the inherently political nature of district-making) in my case-note linked above. That said, the perfect remains the enemy of the good with respect to minimizing partisanship in redistricting, which is why I made the pitch for the judiciary.

    Thank you for the enjoyable and thoughtful discussion as well, and I too will be content to resume it upon future legal developments.

    Leviticus (efada1)

  58. The Supreme Court also decided, on the same day, by a decision which was unanimous as to the result but split as to the language, that a state may not ban registered sex offenders from using all social media. The argument was essentially that, by so doing, the state is cutting the offenders off from *effective* access to communication, and that the first amendment doesn’t allow it.

    I agree with both decisions.

    aphrael (e0cdc9)

  59. > The check for the problem of gerrymander abuse is the ballot box for state legislature candidate

    The problem with this is that a sufficiently skilled abuse of gerrymander is difficult to impossible to check via the ballot box – by definition, it’s an abuse that stands in the way of the execution of the check.

    The conservative activists who pushed the commission on California argued that elections should be about voters selecting politicians, NOT about politicians selecting their voters. I agreed, which is why I voted with them on that issue. :)

    aphrael (e0cdc9)


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