Media Mentions

The USDA could choke innovation and free speech by barring cell-cultured meat makers from labeling their products as "beef" or "poultry," according to the Harvard Law School Animal Law and Policy Clinic. The Harvard clinic petitioned the USDA's Food Safety and Inspection last month, proposing an approach to labeling lab-grown meat at odds with one advocated by the U.S. Cattlemen's Association. The USDA responded to the petition Thursday, saying it intends to write a labeling law and will consider the issues raised by the clinic. Cell-cultured meat hasn't hit the market yet, but likely will soon, according to a recent report by the U.S. Government Accountability Office...The U.S. Cattlemen's Association asked the USDA two years ago to restrict the words "meat" and "beef" to animal products "harvested in the traditional manner." Labeling something grown outside an animal as "meat" would be misbranding, according to the cattlemen. The Harvard clinic says limiting those words to "slaughter-based meat" would likely violate the First Amendment. "Such restrictions also could create consumer confusion, stifle promising innovation and drive companies abroad," according to the clinic's petition. Cell-cultured meat begins with taking bits of tissue from an animal. The cells are put in a container with chemicals and they multiply. One company has made a $600 hamburger patty and a $1,200 meatball, according to the GAO. Companies are holding their trade secrets closely, the GAO reported. The products may have hormones, antibiotics and genetically modified organisms. One company said it's prototype meat is 90% plant based. "Agency officials (from USDA) told us that without knowing the composition of a cell-cultured meat product, it is impossible to predict how food safety and labeling requirements will apply," the GAO report stated. Some 17 states adopted laws in 2019 prohibiting plant-based or cell-based products from being labeled "meat," according to the National Conference of State Legislatures. Idaho, Oregon and Washington were not among those states.

President Donald Trump told the Fox News host Sean Hannity on Thursday that he had tens of thousands of federal agents at the ready to deploy to major US cities — though he said they'd "have to be invited in." Barry Friedman, a law professor who is the faculty director of New York University's Policing Project, which works with communities to ensure police accountability, echoed that point, saying the president needs the consent of the state to send in federal agents...Laurence Tribe, a law professor at Harvard Law School, excoriated the motives behind what he described as the "deliberately vague terms" behind deploying federal agents to major US cities. In an email to Business Insider, Tribe wrote that the situation "would have been utterly unthinkable to those who fought a bloody revolution and founded a republic to preserve the 'blessings of liberty,' to those who gave 'the last full measure of devotion' to preserve the Union, or to those who sacrificed their lives in two World Wars to keep authoritarian regimes from our shores." "To call this astonishing takeover of the streets and spaces for peaceful protest unconstitutional is a dramatic understatement," Tribe wrote in the email. "And the cynicism of those disguising these moves in the garb of essential peacekeeping, which might well succeed for some time in holding judicial relief at bay, is especially disgusting."

One of the nation’s leading constitutional law experts blasted President Donald Trump as a “monster” for the deployment of Department of Homeland Security agents to Portland, Oregon. MSNBC’s Ali Velshi interviewed Laurence Tribe during “The Last Word” on Friday evening. Tribe has taught at Harvard Law School for fifty years and has argued three-dozen cases before the United States Supreme Court. “The president and the Homeland Security acting director, Chad Wolf, and the attorney general are deploying paramilitaries on the streets of America, sweeping up lawful protesters, targeting the press — essentially creating a nation that was the worst nightmare of the framers,” Tribe explained. “The people who fought a revolution to preserve this new republic, the people who gave their last measure of devotion in the Civil War, the people who fought fascism in World War II would not recognize what the president is doing as consistent with America.” “The American tradition is being shattered before our very eyes,” he warned. “People have a right to protest, they have a right to go to the streets and this is the time to do it.” “It’s not an abstract right,” Velshi interjected. “It’s what’s written in the Constitution.” “It’s more than just written in the constitution, it’s written in blood in the history of our country,” Tribe replied. “People have given their lives to live in freedom and this president who claims that he stands for law and order is destroying freedom before our very eyes.” “We cannot stand still through this,” Tribe counseled.

An article by Andrew Manuel Crespo: Over the past few days, millions of people have seen a now-viral video in which two federal agents dressed in full combat gear removed an apparently peaceful protester from the streets of Portland, Ore., and carried him away in an unmarked van. Stories have emerged of other people being taken or pursued by federal agents in a similar fashion. Meanwhile, troubling videos show federal agents in Portland beating a peacefully resolute U.S. Navy veteran and, on a separate occasion, shooting a man in the face with a nonlethal munition, which broke his skull. As criticism of these events rolled in—including from virtually every relevant state and local official in Oregon—the Department of Homeland Security scheduled a press conference earlier this week to try to reclaim the narrative. If the point of that press conference was to reassure an anxious nation that this unfamiliar and recently constituted federal police force is following the law, it likely achieved the opposite effect. In particular, there is a two-minute segment of the press conference that is both revealing and highly disturbing. It shows that one of the top commanders of this new paramilitary federal police force—Kris Cline, Deputy Director of the Federal Protective Service—apparently does not know what the word “arrest” means. To say as much might seem like harping on semantics or, worse, like picking on Cline for speaking inartfully. But it is absolutely critical to unpack and examine Cline’s words—because the word arrest is one of the most important words in the constitutional law of policing.Simply put, for an arrest to be constitutional it must be supported by probable cause. This means that the arresting officer must be able to point to specific facts that would cause a reasonable officer to believe that the person being arrested has committed a specific crime.

The narrative of content moderation, especially over the past few months, goes something like this: Extremists and conspiracy theorists peddle misinformation and dangerous content, Twitter (or Facebook, or Reddit) cracks down on said content by removing the offending posts and accounts, onlookers largely commend the platform, and it’s on to the next group of baddies. This week, that target became QAnon, a group of pro-Trump conspiracy theorists who push fabrications about Satanist “deep state” elites who run a child sex trafficking ring while also plotting to overthrow the current administration...Yet the problem here is that Twitter’s plans—at least the ones available to the public—are rather vague, leaving the door open for confusion, inconsistent enforcement, and future content moderation debacles. “I get concerned when there’s sort of unquestioning praise for Twitter’s actions here, and it earns itself a good news cycle,” said Evelyn Douek, a doctoral student at Harvard Law School and affiliate at Harvard’s Berkman Klein Center for Internet and Society. She worries the move in the long term is detrimental to the project of pushing Twitter to become “more accountable and consistent in the way that they exercise their power.” There are two main places Twitter’s plans fall short. The first is that the platform, as a Twitter spokesperson told NBC News, has decided to classify QAnon behavior with a new, undefined designation: “coordinated harmful activity.” Twitter has yet to provide any information on what this term means or explain how it differs from its preexisting standards on harassment, abusive behavior, and violent groups. “We’re going to see a lot of things, I think, on Twitter that look coordinated and harmful, and we’re going to ask: Is this an example of this new designation?” said Douek. “And we don’t know—Twitter can just decide in the moment whether it is, and we can’t hold onto anything because we have absolutely no details.”

An article by Evelyn Douek: Are the days of the Wild Wild Web over? In recent weeks, social media platforms have unveiled a series of high-profile enforcement actions and deplatformings. All the major platforms rolled out hardline policies against pandemic-related misinformation. Facebook banned hundreds of accounts, groups and pages associated with the boogaloo movement, Snap removed President Trump’s account from its promoted content and YouTube shut down several far-right channels, including that of former Ku Klux Klan leader David Duke. And the hits keep coming: most recently, on July 21, Twitter announced it was taking broad action against content related to the conspiracy theory QAnon. But however welcome Twitter’s response to QAnon may be, these actions do not signify a new era of accountability in content moderation. If anything, it’s a show of how powerful and unaccountable these companies are that they can change their policies in an instant and provide little by way of detail or explanation. Twitter’s announcement about QAnon content was indeed sweeping. More than 7,000 accounts were taken down, and another 150,000 were prevented from being promoted as “trending” on the site or as recommended accounts for people to follow. URLs “associated with” QAnon are now blocked from being shared on the platform. QAnon accounts immediately started trying to come up with ways to evade the ban, kicking off what is sure to be an ongoing game of cat-and-mouse, or moved to other networks.

Enforcing law and order in U.S. cities, traditionally the function of local, county and state police, is a new priority of the federal government. President Donald Trump said the deployment of federal agents in Portland, Oregon, will be replicated in Chicago, Seattle and Albuquerque, New Mexico, to help combat violent crime and civil unrest. At least some state and local leaders say they don’t welcome the assistance. Isn’t policing a local issue? Generally speaking, yes -- the U.S. Constitution reserves police powers for states to exercise. The federal government’s involvement at the local level is limited to specific purposes such as combating crimes covered by federal law (examples are bank robbery, kidnapping, weapons possession and counterfeiting), protecting federal properties like courthouses and safeguarding U.S. constitutional rights...Can cities decline help or kick out federal officers? Again, not if those officers are protecting federal rights and enforcing federal crimes such as vandalizing a courthouse or post office. “Portland can’t say, ‘We don’t want you in our cities -- go home,’” said Andrew Crespo, a professor at Harvard Law School. Federal authority generally prevails under the Constitution when it conflicts with state authority, he said. More plausible legal challenges might focus on the conduct of the officers -- for instance, whether they are violating free-speech rights by discouraging demonstrations or protections against unreasonable seizures and searches. Oregon’s attorney general, Ellen Rosenblum, unsuccessfully sought a court order to block federal agents from detaining protesters without explanation.

The isolation can be terrifying and tragic. The stress can exacerbate mental illness and other health problems. Add the loss of mobility and independence, the disruption of routines: the beloved caregiver who doesn't come, the day program that doesn't open, the concern that lack of support will give families no choice but to institutionalize. In the hospital, people who can't speak are left with no one to communicate for them, vulnerable to the fear medical care will be rationed, given to someone deemed more worthy or valuable than themselves. Though everyone has been suffering during the COVID-19 pandemic, people with disabilities have perhaps been the most disadvantaged, their lives the most disrupted...The Americans with Disabilities Act, signed on July 26, 1990, by President George H.W. Bush, guarantees equal protection for people with a wide range of disabilities, from mental health issues to physical challenges. It was modeled after the 1964 Civil Rights Act, providing equal access to government services, schools, buildings, private employers and commercial facilities. "We are in a much better place in 2020 than we were in 1990. Dramatically better," said Michael Ashley Stein, co-founder and executive director of the Harvard Law School Project on Disability and a visiting professor at Harvard Law School. Although the ADA has made a profound difference, it hasn't removed all prejudice against people with disabilities – any more than the Civil Rights Act resolved all bias against Black people. “Other than rare instances of overt animus, most of the discrimination we see towards people with disabilities in this country tends to be from what we call ‘malign neglect,’” Stein said. "It's not that we're trying to exclude them from opportunity, it's that we didn't even bother to consider them eligible or worthy of opportunities." The ADA, like other civil rights laws, Stein said, "puts the burden on the oppressed to make changes," requiring an endless fight to protect those rights.

The Justice Department celebrates its 150th anniversary this month, but thousands of agency veterans aren’t really feeling the love these days. Instead, they worry President Trump has demolished the norms that were supposed to insulate prosecutions from politics. At the center of the debate is Attorney General Bill Barr, who’s scheduled to testify Tuesday on Capitol Hill. Barr has become a lightning rod for critics who argue he’s not an independent officer in the way the boss of the Justice Department should be, but acting too much like a sympathetic counselor for the president...Barr also has complained publicly about the appearances created by Trump’s public comments and posts on Twitter and sought to make it known that he had contemplated resigning. For skeptics, those kinds of statements have become meaningless as Trump keeps tweeting, encouraging Justice to go easy on his allies and target his enemies. The problem of perception endures even if political interference actually isn’t taking place, department veterans said. “It does look like something untoward is going on at the Justice Department, there’s no doubt about that,” said Jack Goldsmith, a Harvard Law School professor who worked at the Justice Department during the George W. Bush administration. “The problem is that he seems to be acting as the bag-man for the president who has been attacking these prosecutions for years,” Goldsmith said. “And whether there’s the reality of carrying the president’s water, there’s clearly the appearance of it, and it has a terrible effect, I think, on the Justice Department’s legitimacy and everything it does.” In September, Goldsmith and former Obama White House counsel Bob Bauer plan to publish “After Trump: Reconstructing the Presidency,” a book about how the country might move on after Trump, whenever that time comes.

An article by Noah Feldman: The news that Justice Ruth Bader Ginsburg is being treated for a recurrence of cancer is striking terror in the hearts of liberals. As long as she is physically able, the resolute, gutsy Ginsburg will stay on the Supreme Court until there is a Democratic president and a Democratic majority in the Senate. But what if, in the worst-case scenario, Ginsburg’s health forces her out before President Donald Trump’s term in office is over? Worried liberals have been asking me if there’s anything Senate Democrats can do to prevent Trump from getting a third Supreme Court pick in his four years in office. I can’t give them a very comforting answer. If Ginsburg should leave while Trump is still president, it seems overwhelmingly likely that Trump would nominate a replacement more or less immediately — and that the replacement would be a staunch conservative. And Senate Majority Leader Mitch McConnell would likely act quickly to get that person confirmed. Once the president nominates a justice, it falls to the Senate to confirm the nominee according to its own discretionary timetable. As we all know, McConnell exercised that discretion on behalf of his caucus by refusing to hold hearings for a vote when President Barack Obama nominated Merrick Garland to fill Justice Antonin Scalia’s vacancy after his sudden death. As a result, Trump got to fill that seat. Now, one would expect McConnell to go to the opposite extreme and push for a rapid confirmation of Trump’s nominee. We are accustomed, in our current era, to somewhat lengthy confirmation hearings for Supreme Court justices. But these are in no way required by the Constitution, which merely says the Senate has the power to advise and consent on Supreme Court nominees.

In May, just days after a Minneapolis police officer killed George Floyd, Lieutenant Bob Kroll, the bellicose leader of the city’s police union, described Floyd as a violent criminal, said that the protesters who had gathered to lament his death were terrorists, and complained that they weren’t being treated more roughly by police. Kroll, who has spoken unsentimentally about being involved in three shootings himself, said that he was fighting to get the accused officers reinstated. In the following days, the Kentucky police union rallied around officers who had fatally shot an E.M.T. worker named Breonna Taylor in her home...The list goes on. Along with everything else about American society that was thrown into appalling relief by Floyd’s killing, there has been the peculiar militancy of many police unions. Law enforcement kills more than a thousand Americans a year...Benjamin Sachs, a professor of labor and industry at Harvard Law School, points to new data showing that, when police have greater access to collective bargaining, it correlates with a long-term increase in police killing of civilians, specifically nonwhite civilians. Strong union towns like Chicago often have a more dangerous police culture than cities with weak labor laws do. In Dallas, for instance, the main police union is not the sole bargaining agent. Several different groups, including fraternal organizations of African-American and Latino officers, sign off on union contracts. The result is both more transparent and markedly less violent policing...Sachs agrees that there is an urgent need for reform, but he suggests considering more procedural steps: limiting collective bargaining to non-disciplinary matters; opening bargaining sessions to the public; encouraging departments to have multiple unions, representing more diverse views. Many analysts emphasize the need for new use-of-force protocols that are known to save lives but that the unions reject.

An article by Daniel Pessar '20: When real estate investors sell property, they often defer any capital gains using the like-kind, tax deferred exchange, provided for in Internal Revenue Code Section 1031. As explained in the tax regulations: [A] deferred exchange is defined as an exchange in which, pursuant to an agreement, the taxpayer transfers property held for productive use in a trade or business or for investment (the “relinquished property”) and subsequently receives property to be held either for productive use in a trade or business or for investment (the “replacement property”). Although this provision was long available for use with a broad array of property types, since the 2017 Tax Cuts and Jobs Act, it is only available for real estate. To qualify for nonrecognition of gain or loss under Section 1031, a taxpayer must follow quite a few rules, including many time-sensitive requirements. For example, a taxpayer must identify replacement property within 45 days of transferring the relinquished property, and receive the replacement property within 180 days of transferring the relinquished property. The regulations allow replacement properties to be identified in three ways:  Three properties can be identified, without regard to the value of the properties; Any number of properties can be identified as long as their value does not exceed 200% of the value of the relinquished properties; or Any number of properties can be identified as long as the exchanger receives, before the end of the exchange period, 95% of those properties, measured by fair market value. The taxpayer is not required to defer all of the capital gains, however. It is possible to defer part of the gains by receiving qualified replacement property in addition to nonqualified property, triggering capital gains taxes on a part of the sale and deferring taxes on another part of the sale.

An article by Andrew Manuel Crespo: This past week, the Department of Homeland Security held a news conference to clear up a few things about the federal paramilitary police force grabbing protesters on the streets of Portland, Ore. If the goal was to reassure everyone that these armor-clad agents were acting lawfully, it did not go well. Instead the conference revealed, with painstaking clarity, a very big problem: The deputy director of President Trump’s new federal police force does not know what the word “arrest” means. This isn’t just semantics. In our legal system, the definition of the word “arrest” is critical because it marks an important dividing line under the Fourth Amendment. For an arrest to be legal, it must be supported by probable cause. That means the arresting officer must be able to point to specific facts that would make a reasonable person think that the person being arrested committed a specific criminal offense. By contrast, if the police have a noncoercive, consensual interaction with a civilian (sometimes called a “contact” or an “engagement” in law enforcement lingo), then the person has not been “seized” for Fourth Amendment purposes, and the police do not need to explain or justify why they approached the suspect in the first place. In other words, you can think of the word “arrest” as an on-off switch for the Fourth Amendment’s essential protections. When the police arrest someone, they are constrained by the Constitution. Before then, the Constitution’s protections are substantially weaker — if they exist at all. Given the central importance of the word “arrest” in the constitutional law of policing, it is chilling to see a commanding officer of a law enforcement agency demonstrate a basic misunderstanding of its meaning.

The wireless industry urged a California federal judge Thursday to find the city of Berkeley, California's wireless disclosure ordinance violates the First Amendment, saying the Federal Communications Commission supports the trade group's view that cellphone retailers need not warn customers about potential harm from radiofrequency emissions. CTIA – The Wireless Association, a trade association composed of U.S. wireless communications companies including AT+T, Verizon, Samsung and Apple, urged U.S. District Judge Edward Chen to grant its bid for judgment on the pleadings that Berkeley's ordinance violates free speech laws and is preempted by federal regulations...An attorney for Berkeley, Lawrence Lessig of Harvard Law School, brushed aside the FCC's letter of interest, saying that it merely reflects the views of the FCC's general counsel, who is appointed by the FCC chairman, who in turn is appointed by the president. Lessig said that the FCC's general counsel clearly has views about what the policy is and voices those views, but that they are not necessarily the agency's. Lessig told Law360 after the hearing that the FCC's general counsel had become "extremely activist" and "extremely aggressive" in his pursuit of his policy preferences. But Lessig said this case calls into question to what extent the general counsel can establish policy for the FCC. The lawsuit stems from a 2015 ordinance requiring phone sellers to inform customers that holding an internet-connected mobile phone close to their skin — such as "in a pants or shirt pocket or tucked into a bra" — could expose users to too much radiofrequency radiation.

There’s no dispute that the federal government’s decision to dispatch officers to Portland, Ore., has exacerbated protests in the city. The Department of Homeland Security pointed to weeks of vandalism at the federal courthouse as a rationale for the deployment, but the presence of the DHS officers and their often heavy-handed tactics has resulted in an expansion of the size of the protests and the number of conflicts...Harvard law professor Andrew Crespo, on Twitter earlier this week, outlined a significant constitutional problem with the Portland detention captured on video. He pointed out that the official excuse for seizing the demonstrator was that he had been in an area where another person was pointing a laser device at officers’ eyes. But that isn’t sufficient for probable cause, Crespo noted, meaning that the arrest violated the protester’s Fourth Amendment rights. In a phone call with The Post, though, Crespo highlighted a more significant part of the incident. Instead of charging the protester with something, they simply let him go. The same thing happened to Pettibone. To a layperson, that seems like good news. But from an accountability standpoint, it's problematic. “If you push them out the back door of the station house and they never get charged, there’s not a case,” Crespo said. “They’re not going to be a defendant who can to raise the Fourth Amendment issues in a protective posture by trying to suppress any evidence.” “Which means that if there’s going to be judicial review,” he said, “it’s got to come the other way: That person has to go out and sue these agents or the department.” “It’s much harder to bring that sort of suit as a plaintiff,” he said, “than to raise these questions as a defendant. And the government gets to control who’s going to be a defendant or not by deciding who to charge or not.”

Unidentified federal officers in Portland  — and soon, in Chicago and Albuquerque —have been arresting and detaining protesters in unmarked vehicles, sometimes far away from the federal buildings they're purportedly there to protect. In one notable instance, two federal officers grabbed a man off the sidewalk and, without identifying themselves or giving a reason, put him in an unmarked van and drove off to question him. The Department of Homeland Security claims the officers' tactics here are lawful. Harvard Law professor Andrew Manuel Crespo says they are decidedly not. "The person in charge of this newly beefed-up, paramilitary federal police force doesn't know what an arrest is," he says of Federal Protective Services Deputy Director Chris Cline. "It means he doesn't know when they're violating the fourth amendment — like they unquestionably did." Listen to Professor Crespo explain why the officers' conduct is unconstitutional — and why he finds it frightening that authorities seem to think otherwise.

A local environmental group believes that Indiana’s Right to Farm Act violates the federal constitution, and they are asking the U.S. Supreme Court to weigh in. The Hoosier Environmental Council has teamed up with a Harvard Law School Clinic and together they filed a petition with the nation’s highest court on July 17 asking it to review the case. This petition comes nearly 5 years after this case first began in an Indiana trial court, and roughly 7 years after an 8,000-hog factory farm moved in next to two Hendricks County couples and allegedly began causing harm...Right-to-farm laws started to grow in prominence around the nation in the 1970s and 1980s, and Indiana’s was enacted in 1981. These laws were enacted as a way to protect existing farmers from urban sprawl as city-dwellers moved to the countryside unprepared for the smells of agriculture. Such newcomers could not sue for nuisance as they moved to or “came to the nuisance,” said Andy Stawasz '21, a Harvard Law student who worked on the petition to the Supreme Court...Prior to starting the CAFO, the land did undergo a change: In 2013 it was rezoned from “agriculture residential” to ”agriculture intense.” And prior to the 2005 amendment, Katherine Meyer feels confident that this change would have been grounds for nuisance claims under the law. “It would have been cut and dry because they were there first and then the nuisance came in,” said Meyer, the executive director of Harvard’s Animal Law and Policy Clinic that worked on the petition with Ferraro. “Now they can’t sue for damages and they can’t get the value out of their house. It just doesn’t seem fair, let alone the legal and constitutional issues.”

This Sunday marks the 30th anniversary of the day the Americans with Disabilities Act was signed into law, making it illegal to discriminate against people living with disabilities in regard to employment and access to government services. The Gazette spoke with Michael Ashley Stein, J.D. ’88, co-founder and executive director of the Harvard Law School Project on Disability, to learn more about the significance of the ADA and what it has meant for the people it protects over the past 30 years. Stein also addressed what Harvard has done since then to expand accessibility on its campuses, and provided perspective on what challenges and opportunities lie ahead.

A podcast by Noah Feldman: Roxane Gay, the best-selling author of Bad Feminist and Hunger and the co-host of the podcast Hear to Slay, discusses her new short story "String Theory."

An article by Noah Feldman: If there really is a law enforcement problem in American cities, why hasn’t President Donald Trump sent the FBI to fight crime in Portland, Oregon? Or the DEA to fight violence connected to drug trafficking in Chicago? Why is he sending in special, paramilitary units from the Department of Homeland Security whose job is to enforce immigration laws? A closer look shows why Trump’s use of these officers is so troubling. Federal law enforcement agencies like the FBI and DEA have well defined responsibilities and are institutionally committed to carrying them out, not exceeding them. FBI agents are trained to understand that their job is to investigate federal crimes. DEA agents are trained to know that their job is to investigate federal drug crimes. Agents in both institutions are accustomed to working closely with federal prosecutors. The DHS units that Trump is deploying are something else again. According to the DHS, it has deployed officers from several paramilitary units in Portland, including the Border Patrol Tactical Unit, Border Patrol Search, Trauma and Rescue and Special Response teams. These units, from the DHS departments of Customs and Border Protection and Immigration and Customs Enforcement, have nothing to do with policing ordinary street crimes. Yet that is what they are doing in Portland. The reason these units are part of CBP and ICE is that their job is to target non-citizens. There’s no reason to think they have the relevant training, experience, institutional knowledge or expertise to deal with citizens, protests or street crime. Nor is there any reason to think that these units are accustomed to working closely with federal prosecutors who could be expected (in theory at least) to make sure that their activities complied with relevant federal law.

Professor Michael A. Stein, executive director of the Harvard Law School Project on Disability, details advances nationally and at the University.