Legal briefs

Free speech

Recently, U.S. Representative Cathy McMorris Rogers, who is Chair of the powerful U.S. House Energy and Commerce Committee, told tech companies to “work with Congress to ensure the internet is a safe, healthy place for good, or lose Section 230 protections entirely.” Section 230 is a federal statute that shields tech companies from civil liability for content that appears on their sites. The theory is that the tech companies are merely platforms and not editors of content, so they should not be able to be sued for what others put on their sites. The tech companies’ arguments to keep 230 protection would be stronger if it didn’t appear that they intentionally promote social media addiction in young people and actively censor conservative speech. Such conduct is less like platforming and more like curating. Some may argue that removing 230 protection limits free speech. Yet, the opposite may be true. Right now, the tech companies limit some speech, but are free from the consequences of some of their own actions. Removing 230 protection could level the playing field.

Crime

Ashley Madison was a website that purported to match up married people interested in engaging in extramarital affairs. Some time back, the website was hacked and the database of its users was released to the public. A recent study took that leaked database and cross matched it with publicly available data on professional misconduct. The misconduct data was taken mostly from Securities and Exchange Commission and police misconduct cases. The study found that police officers, financial advisors, CEOs, CFOs and other executives who used the website were significantly more likely to engage in professional misconduct. Twice as likely, in fact. While interesting, this finding is not that surprising. Many who commit misconduct, whether it be crime, corporate malfeasance, or serious violations of police policies are sociopaths. Sociopaths also do not have any qualms about carrying on extramarital affairs. It makes sense that there would be substantial overlap.  

Separation of powers and textualism

There is a federal statute that makes it illegal to possess a machine gun. Machine guns, per the statute, are defined as having the ability to “shoot, automatically more than one shot by a single function of the trigger.” With a machine gun, you can just hold the trigger down and the gun will continuously fire rounds. This contrasts with a semi-automatic rifle, which will only fire one round for each pull of the trigger. Then there are bump stocks. These are devices that fit onto the stock of a semi-automatic rifle and use the rifle’s recoil in a mechanism that makes the trigger pull faster.

The ATF is charged with adopting regulations to carry out federal firearms statutes like the machine gun ban. For years, the ATF found that bump stocks do not turn semi-automatic rifles into machine guns for purposes of the federal law.  

In 2017, a guy in Las Vegas rented a high-rise hotel room overlooking the venue for an outdoor country music festival. He brought several semi-automatic rifles equipped with bump stocks to the room and used those rifles to kill over fifty people and wound over five hundred. Following this tragedy, the ATF reversed its long-held interpretation of bump stock regulations and found that bump stocks do, in fact, convert semi-automatic rifles into machine guns. The ATF gave bump stock owners and producers ninety days to destroy or forfeit existing bump stocks. A guy named Cargill surrendered his bump stocks, then sued the ATF.

Last week, the U.S. Supreme Court handed down its decision in Garland v. Cargill, the case challenging the ATF interpretation. The Court found that the ATF exceeded its authority in banning bump stocks. The case relied on a textualist analysis of the statute on the separation of powers doctrine.

Justice Thomas writing for the majority focused on the “single function of the trigger” language in the statute. In analyzing the way a bump stock works, the majority found that even with the use of a bump stock, a semi-automatic rifle will still only fire one round per single pull of the trigger. They did acknowledge, however, that the bump stock facilitates much faster trigger pulls. This is where the separation of powers doctrine came into play. Justice Alito wrote, “there is a simple remedy for the disparate treatment of bump stocks and machine guns. Congress can amend the law.”  

Legislatures write laws, not courts. The conservative majority of this U.S. Supreme Court appears dedicated to strict textualist analysis and the separation of powers. This is a good thing. All courts should have such discipline and dedication.

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