Media Mentions

Despite being members of the modern world’s oldest continuous democracy, Americans aren’t great at turning up to vote. The U.S. has among the lowest voter turnout of developed democratic nations. The reasons are complex and ingrained — from institutionalized voter suppression to individual apathy and distrust in the government. And now, with the 2020 presidential election only five months away, the coronavirus pandemic has added an extraordinary new hurdle on the path to participatory citizenship. While here in the U.S. we have come to see disengagement as a birthright and disenfranchisement a feature of the system, in a number of other countries, voting is more than a right: It’s required. Some experts believe that making voting mandatory — penalizing those who don’t, or rewarding those who do — could get more U.S. voters casting ballots. And that could bring our democracy closer to being truly representative...Punitive measures for noncompliance are the most common ways of enforcing compulsory voting, but some advocates think an incentive approach has a much better chance of succeeding in the United States. Some suggest small payments or tax credits to encourage citizens, especially young and first-time voters, to register and vote. The goal of such payments would be to inculcate people into a lifelong habit of voting. “You could give somebody a $50 tax credit if they do vote, but don’t fine them for not voting,” suggested Harvard Law School professor and elections expert Nicholas Stephanopoulos. “You might not get quite as high compliance that way, but I think it’d be a lot more palatable and it would also basically negate any potential legal challenge.”

An article by Laurence Tribe and Albert Turner Goins: Unless prosecutors in Minnesota file more serious charges against the police officer accused of killing George Floyd, they’re at risk of compounding public outrage by letting that former officer escape a charge of murder. Millions of us watched the Memorial Day video of the white officer, Derek Chauvin, grinding his knee into the neck of Floyd, an immobilized Black man. We saw Floyd call out for his mother and say, “I can’t breathe,” until he was beyond saving. The echoes of past extrajudicial executions and centuries of slavery and slaughter, of lynching and officially sanctioned violence, rang out across the land. It took several excruciating days before the county’s chief prosecutor, Michael Freeman, finally saw fit to file criminal charges against Chauvin, and then only for second-degree manslaughter, an offense punishable by up to 10 years in prison but usually resulting in a much lighter sentence, as well as something Minnesota calls third-degree murder, a crime punishable by up to 25 years but applicable only where someone unintentionally causes death by “reckless or wanton acts … without special regard to their effect on any particular person” — like shooting aimlessly into a crowd. No one remotely familiar with Minnesota law would regard either of those charges as the right ones to bring in this case — a case where, even if intent cannot be proven, a second-degree felony murder charge, punishable by 40 years in prison, is manifestly justified. Under a quirk in Minnesota law, second-degree murder can be charged where an assault — such as the first-degree assault evident from Chauvin’s placement of his knee on Floyd’s neck for nearly nine minutes — unintentionally results in death. More critically, anyone steeped in Minnesota law would recognize that the third-degree murder charge would likely be summarily dismissed for the ironic reason that Chauvin clearly aimed his acts at Floyd. Such a miscarriage of justice would surely trigger still more chaos and violence from coast to coast as people across the political spectrum come to see American justice as unworthy of the name.

The feud between Twitter and Donald Trump keeps escalating. Days after Twitter drew the president’s ire by applying a fact-checking label to one of his tweets—prompting a retaliatory executive order from Trump—the platform went even further. On Friday morning, it flagged a Trump tweet for violating its rules and implemented measures to keep it from going viral, while keeping the tweet up in the name of public interest. It’s a move that attempts to strike a thoughtful balance. But it also gets Twitter deeper into a messy conflict that there may be no easy way out of. The tweet that finally crossed Twitter’s line came just after midnight on Friday morning, in response to the escalating riots in Minneapolis following the apparent murder of George Floyd, an unarmed black man, by a white police officer. Trump suggested that he might deploy the National Guard and warned that “when the looting starts, the shooting starts,” a phrase attributed to Walter Headley, a Miami police chief in the 1960s who bragged about using “police brutality” against rioters. Twitter soon covered up Trump’s tweet with a label warning that it violated a rule against glorifying violence...There’s no perfect answer here, but Twitter may have found the least bad approach to a nearly impossible situation. “This is the most effective way of Twitter balancing the public interest of constituents knowing what their president says and believes, versus reducing the harm where that speech is potentially dangerous,” says Evelyn Douek, an affiliate at Harvard’s Berkman Klein Center for Internet and Society. Douek cautioned against expecting a platform like Twitter to completely solve the problems of political discourse. “There’s a real democratic tension in a private company that has no democratic accountability or legitimacy deciding what a duly elected public official can or cannot say.”

An article by Cass Sunstein: President Donald Trump’s executive order targeting social-media companies raises tough questions about presidential power, presidential bullying and freedom of speech. To understand it, we need to start with what’s clear, and then explore what’s not. An executive order is not a law. It doesn’t bind the private sector. It doesn’t require Twitter or YouTube to do anything at all. Many executive orders are orders from the president to his subordinates, directing them to do things. That’s what this one is. With respect to the communications market (of which the social-media companies are an important part), the most important federal agency is the Federal Communications Commission, an independent agency not subject to the president’s policy control. The executive order signed by Trump on Thursday respects the FCC’s independence. It doesn’t direct the FCC to take action. Some passages of this executive order read like a fit of pique, or an attempt at punishment. Indeed, the order does not obscure the fact that it is, at least in part, a response to behavior by Twitter that Trump didn’t like: adding fact-check labels to two misleading presidential tweets about voting by mail.

An article by Ashley Nunes: Where's my money? That's the question air travellers want answered. As the COVID-19 pandemic ravages economies worldwide, thousands of Canadians are stuck with tickets in hand and no place to go, and they want their airfares refunded. Predictably, airlines are having none of it. The likes of Air Canada and WestJet - which dominate the Canadian air travel market - are instead offering fliers credit that can be used toward future travel. According to WestJet, "...airline tariffs do not always provide for cash refunds especially in cases beyond our  control. WestJet believes refunding with travel credits is an appropriate and responsible approach in extraordinary circumstances such as the COVID-19 crisis." Put another way, good luck getting your cash back. If there's one thing airlines hate, it's issuing refunds. The reason comes down to pure economics. Running an airline is pricey. Commercial jets cost tens of millions of dollars. Add to that maintenance, insurance, and taxes - all of which must be paid regardless of whether or not an airplane flies - and you're talking about serious money.

Joe Biden has been wooing progressives with a list of green initiatives. But even if Democrats take control of Congress, he might have to rely on executive actions to accomplish some of his goals. The presumptive Democratic nominee for president has a $1.7 trillion climate plan that includes myriad proposals — including new regulations on car fuel efficiency, massive increases in government spending, additional taxes on greenhouse gas emissions and rejoining the Paris Agreement. But experts and advocates say Biden would likely have to adjust some of his expectations if Congress can't help, and he may not be able to achieve, for example, net-zero greenhouse gas emissions by 2050. Still, should he win in November, the former vice president would have a wide range of tools at his disposal to make big changes to climate and environmental policy. "When you've got the agencies of the federal government, and you've got the power to steer and direct and appoint, that's a huge power," said Jody Freeman, who leads the Environmental and Energy Law Program at Harvard Law School and was an environmental policy adviser in the Obama administration. "So I see what Biden could do as quite significant, even though we all think it would be pretty fabulous if Congress could do something," she said...And if Biden doesn't get any help from Congress, he might want to double down on regulations and go even further. "It's not that you have to go find other tools in the executive branch. You have to use the regulatory tools you've got to do more," said Freeman. She argued specifically that Biden could write a new version of the Clean Power Plan far more ambitious than the one the Obama administration put forward in 2015, which would have cut emissions 32% below 2005 levels by 2030. Since then, many coal-fired power plants have been shut down, renewable power has become much cheaper, and the sector's emissions have dropped, showing it's possible to do much more, she said. "You can be ambitious with a new version of the Clean Power Plan because the sector itself has made progress, and the market forces are already driving us in that direction, with the cheap cost of natural gas, the penetration of renewables and the rest," she said.

In this episode of Lawfare's Arbiters of Truth series on disinformation, Evelyn Douek and Quinta Jurecic spoke with Gabrielle Lim, a researcher with the Technology and Social Change Research Project at Harvard Kennedy School’s Shorenstein Center and a fellow with Citizen Lab. Lim just released a new report with Data and Society on the fascinating story of a Malaysian law ostensibly aimed at stamping out disinformation. The Anti-Fake News Act, passed in 2018, criminalized the creation and dissemination of what the Malaysian government referred to as “fake news.” After a new government came into power following the country’s 2018 elections, the law was quickly repealed. But the story of how Malaysia’s ruling party passed the act, and how Malaysian civil society pushed back against it, is a useful case study on how illiberal governments can use the language of countering disinformation to clamp down on free expression, and how the way democratic governments talk about disinformation has global effects.

When it comes to President Trump signing an executive order attempting to punish social media companies, Harvard Law Professor Laurence Tribe says the president is ‘creating a problem where there really was none.’

Cass Sunstein, Bloomberg Opinion columnist and Harvard Law professor, discusses his column, "Twitter Strikes Balance Between Liberty and Lies." Hosted by Lisa Abramowicz and Paul Sweeney.

A proposed U.S. Forest Service rule stands to weaken a check on oil and gas development in national forests and possibly give the Interior Department more sway over land leasing decisions, legal analysts and conservationists say. The rulemaking, announced in 2018, aims to align the Forest Service’s leasing practices with those of the Bureau of Land Management to speed up fossil fuel development in national forests and grasslands nationwide, including oil and gas-rich forests in Ohio, Mississippi, and Colorado...The BLM, part of the Interior Department, is in charge of oil and gas leasing on all federal lands, including those managed by the Forest Service—which is part of the Agriculture Department. Federal law prohibits BLM from leasing in national forests without Forest Service consent, Parker said. The Forest Service is remaking its oil and gas regulations at a time when it is weakening environmental checks and balances under the National Environmental Policy Act and joining with the BLM in prioritizing logging and fossil fuels development on federal public lands, said Hana Vizcarra, staff attorney at the Harvard Law School Environmental and Energy Law Program...The service is also working on an update to its mining rules that would expedite mining permit applications with minimal environmental review by aligning the rules with those of the BLM. “When you look at this administration’s track record of pursuing revisions to rules, policies, and practices that favor oil and gas production over resource and ecosystem protection, it implies we’re going to see more of the same here,” Vizcarra said, referring to the Forest Service’s oil and gas rulemaking.

A podcast by Noah Feldman: Dr. Alex Marson, the Director of the Gladstone-UCSF Institute for Genomic Immunology, explains what antibodies tests can and cannot tell us.

There is no freedom more important than the right to free speech. So why aren't more conservatives speaking out now that President Donald Trump has issued his most serious threat in recent memory to our collective First Amendment rights? On Wednesday the president threatened Twitter, a social media platform that he has used for half a decade to advance his political cause, after it included a fact-check label on one of his tweets. First things first: Twitter was indisputably correct in saying that Trump had uttered a falsehood when he claimed mail-in ballots are fraudulent...Yet even if Twitter had been factually wrong, it is still a private company that has the right under the First Amendment to criticize our government and its leaders without fear of reprisal or censorship. It is Trump's job as president to protect those rights even — no, especially — when they are used by those who oppose him... "The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment," Harvard Law professor Laurence Tribe told Salon by email. "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

An article by Peter Brann and James Tierney: Maine is not immune from a virus that knows no borders as it sweeps across the world, stealing the lives of loved ones. To keep ourselves safe, we have also lost many of the things we hold dear, such as graduations, summer fairs and family get-togethers. To combat this plague, Gov. Janet Mills has invoked emergency powers to protect the health and safety of all Mainers. Every state governor has always had extensive emergency powers, and when they are invoked following hurricanes, tornados and other disasters, no one blinks an eye. Now we face the largest worldwide pandemic in more than a century, which has killed nearly 100,000 people in the United States and sickened more than 1,670,000 people in the United States (and more than 5,500,000 worldwide). A small minority nonetheless have gone to court to claim that Mills is violating their constitutional right to do whatever they want whenever they want, effectively claiming a constitutional right to endanger the rest of us. These lawsuits lack merit and mangle our national heritage. In the debate over whether to send troops to fight the Revolutionary War, Patrick Henry famously said, “Give me liberty or give me death!” Unfortunately, the critics challenging Mills’ emergency orders fighting the COVID-19 pandemic essentially misquote Henry, arguing instead, “Give me liberty and give me death!” Fortunately, the Constitution strikes a different balance.

An article by Laurence Tribe and Joshua Geltzer: On Tuesday, President Trump claimed — on Twitter, no less — that Twitter is “stifling FREE SPEECH,” thus suggesting that Twitter is violating the First Amendment. As usual, Trump is wrong on the law, but this time he’s even more wrong than usual. There is someone violating the First Amendment on Twitter, but it’s not Twitter — it’s Trump. What’s more, his threat on Wednesday to shut down Twitter altogether would mean violating the First Amendment in new ways. Trump is utterly mistaken in claiming that Twitter is violating the First Amendment — or even that Twitter can violate the First Amendment. Prompting Trump’s outburst was the platform’s first-ever attachment of warnings to two of Trump’s tweets encouraging users to “get the facts about mail-in ballots.” Clicking the warning leads to a news story indicating that “Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud.” Attaching these warnings, Trump claimed, was Twitter’s First Amendment sin. But it’s no constitutional violation. To begin with, the First Amendment applies to the government — not to private actors like Twitter. So, when the company adds warnings to tweets or even — going a step further for users other than Trump — removes tweets, it can’t possibly violate the First Amendment, because it simply isn’t a governmental entity. You can love or hate how Twitter is regulating its own private platform — but you can’t call it a First Amendment violation.

An article by Cass Sunstein: President Donald Trump says a lot of things on Twitter that aren’t true. Twitter has a set of formal policies designed to combat misleading information. This week, Twitter applied its policies to two of Trump’s tweets, in which the president made misleading claims about voting by mail. Trump responded with a threat: "Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen." The threat had an immediate effect on the stock of Twitter Inc.; it fell dramatically afterward. To understand the controversy, we need to step back a bit. Social-media platforms such as Twitter, Facebook and YouTube are not subject to the Constitution at all. The First Amendment, which guarantees freedom of speech, applies only to the government. If Twitter denied a platform to Trump, or if it allowed only Republicans or only Democrats to have access to its platform, it would not be violating the Constitution. Nonetheless, Twitter has good reason to allow something like a free-for-all. Its whole purpose is to permit plenty of diverse people to say plenty of diverse things. That’s its business model. And if it’s providing a public service, as I believe that it is, it should not favor any particular side. It should certainly not appoint itself as the truth police.

An article by Noah Feldman: As the U.S. Supreme Court decides whether Donald Trump’s tax returns can be released to New York state prosecutors, an experiment in investigating and prosecuting a head of government is taking place across the ocean. On Sunday, Prime Minister Benjamin Netanyahu appeared in an Israeli court for the beginning of a criminal trial in which he is the defendant. Netanyahu’s trial is obviously a watershed in Israeli politics. Previous prime ministers charged with wrongdoing there had stepped aside rather than remaining in office while facing charges. But Americans may also want to keep an eye on the trial for what it might teach us about a constitutional question that has received a lot of attention during Donald Trump’s presidency: whether a sitting president can be subject to criminal prosecution. Of course, Israel has a parliamentary system of government, not a presidential one. It lacks a single, written constitution. It doesn’t have a federal system. Any lessons for U.S. constitutional law will be indirect. Yet Netanyahu’s example could still be highly instructive. That’s because so much of the constitutional debate in the U.S. over prosecuting the president has turned not on jurisprudential abstractions but on the question of whether a head of state charged with a crime would be too distracted to perform the duties of his office.

In 2011, the Obama administration transformed Title IX law by issuing its “Dear Colleague" letter, a set of recommendations encouraging colleges to amplify their protections of victims of campus sexual assault and harassment. But the Dear Colleague letter's guidelines have proved difficult for colleges to adhere to — and have attracted many critics, primarily for their failure to provide due-process protections for accused students. Harvard Law School’s Jeannie Suk Gersen is one of those critics. In her regular columns at The New Yorker and in a California Law Review article entitled “The Sex Bureaucracy” (a version of which appeared in The Chronicle Review), Gersen has argued that the Obama-era Title IX regime was “detrimental to the fight against sexual violence.” Under Betsy DeVos, U.S. secretary of education in the Trump administration, that regime is about to undergo major changes. The Chronicle Review spoke with Gersen about the new rules, how the Title IX debate became so polarized, legal challenges to DeVos by the ACLU, and the role of the law professor as public intellectual.

An article by Evelyn Douek: Donald Trump’s tweets pose a special problem for Twitter. Absolutely no one can be surprised that the president is using the platform to tweet false and inflammatory claims in the middle of a global pandemic and the lead-up to an election: This is the president’s signature style. His recent tweets have promoted baseless conspiracy theories about the death of Lori Klausutis, a former staffer for Republican congressman–turned–MSNBC host Joe Scarborough, and falsely claimed that an expansion of mail-in voting would rig the 2020 election. When Twitter took the unprecedented step of adding a fact-check link to Trump’s tweets about voting, many critics of the decision thought that CEO Jack Dorsey still had not gone far enough—they maintained that the offending tweets should come down, or that the company should kick Trump off its platform altogether. The problem is that Trump’s critics are looking to Dorsey to solve a problem that Twitter did not create. What the president says and does is inherently newsworthy. As The Atlantic’s Adam Serwer tweeted yesterday, “You can’t deplatform the president of the United States.” At the moment, the duly elected president is someone who deliberately puts out divisive misinformation on social media. Twitter can surely do a better job of enforcing its own rules and flagging Trump’s worst statements—this morning, for instance, he repeated his casual insinuation that Scarborough was involved in Klausutis’s death and allegations that mail-in voting would lead to election cheating, and so far no warning labels or fact-checks are attached. But a tech company can’t change who the president is.

An article by Sandra Wisner and Beatrice Lindstrom: In an unprecedented move, 14 United Nations-appointed human rights experts sharply admonished the UN last month for denying justice to victims of the cholera epidemic introduced to Haiti by UN peacekeepers in 2010. As communities around the world struggle to give meaning to the vast loss of life from COVID-19, the experts are right to draw renewed attention to this plight. Cholera broke out in Haiti for the first time in the country's history because the UN Stabilisation Mission in Haiti (MINUSTAH) failed to undertake basic precautions to prevent foreseeable harm. MINUSTAH deployed peacekeepers from Nepal - a country experiencing an active cholera outbreak - without adequately screening for infection, and then recklessly disposed of contaminated faecal waste into Haiti's largest river. The official death toll from cholera stands at 9,789, though studies suggest the true toll may be three to 10 times higher. Nearly one million Haitians have been infected - a per capita toll that exceeds any nation impacted by COVID-19 so far. It took six years of advocacy and lawsuits for the UN to pledge to address the harm suffered by cholera victims. In 2016, then Secretary-General Ban Ki-moon issued a long overdue apology for the UN's role in introducing the disease and launched a $400m initiative to eliminate cholera and provide "material assistance" to those most affected by the epidemic.

An article by Elizabeth Bartholet, Dr. Rachel Coleman, James Dwyer, Milton Gaither, and Frank E. Vandervort: As COVID-19 continues to destroy lives and the economy, forcing millions of American parents to begin teaching their children at home, Secretary of State Mike Pompeo and Sen. Ted Cruz (R-Texas) took to Twitter to call for shutting down discussion about research on the safety and quality of homeschooling, as well as proposed regulation of that practice. In a series of tweets, both recently took time off from leading the nation’s response to the global pandemic to denounce “barbaric” and “unconstitutional” proposals to safeguard children from abuse and ensure they are educated, calling advocates of such common-sense regulation “radical leftist scholars.” In recent years, we and many others focused on the welfare of children have raised an alarm about the absence of meaningful oversight of homeschooling and the risk this presents for up to 3 million youth across America. In response, a reactionary subset of the homeschooling movement – now including the nation’s top diplomat and the Texas senator and former presidential candidate – has mobilized aggressively to suppress public discussion and prevent any safeguards designed to protect children against maltreatment and ensure they receive a minimum level of education. The recent attacks on academic critique and suggested regulatory reform underscore the need for a civil, data-driven discussion about the advantages and pitfalls of homeschooling and how best to ensure the safe education of all children. While we have varying perspectives on homeschooling, we all recognize that there is enormous variety in the homeschooling population and that many homeschooling parents provide their children with an education far superior to that delivered in their local public schools.

In early April, after the Trump administration brushed aside New York Gov. Andrew Cuomo’s appeals for ventilators, Kate Brown, the governor of Oregon, shipped 140 of the breathing devices to help New York blunt COVID-19. China chipped in with another 1,000. Weeks later, Cuomo sent 400 ventilators to Massachusetts after its governor, Charlie Baker, came close to a public meltdown over federal interference with his efforts to buy medical supplies...In a complete reversal of what has long been the normal crisis or wartime dynamic, action and authority have devolved from the White House to the governor’s mansions during the COVID-19 pandemic. It is the states that have emerged as the counterweight to Trumpian dysfunction, a development that has led Trump to rage against the very people confronting the daily doses of death and despair—and the fallout from his incompetence and indifference...In the absence of sane federal policy, moreover, these and other governors have begun working with their neighbors...The hardest-hit Northeastern states, New York, New Jersey, Pennsylvania, Connecticut, Massachusetts, Rhode Island, and Delaware, followed suit, as did the Midwestern states of Illinois, Indiana, Kentucky, Ohio, Michigan, Minnesota, and Wisconsin. States have established compacts before, on issues ranging from criminal justice to the environment and transportation. But there is likely no historical precedent for states “banding together in the face of inaction by the federal government,” according to constitutional law professor Annette Gordon-Reed of Harvard Law. “This situation is not like the drivers of the typical interstate compacts,” Gordon-Reed says. “This is different, as an acute health crisis in which time is of the essence and could have been ameliorated with a coordinated effort.”