NOT SHINY, NOT NORMAL: Chevron Allowed To Literally Prosecute Lawyer For Winning Judgment Against It


Yesterday, the final day of his criminal trial, was Steven Donziger's 650th day under house arrest.

Donziger's crime? Pissing off Big Oil.

Steven Donziger now describes himself as an advocate. He used to be an environmental and human rights lawyer. For 28 years, he represented more than 30,000 indigenous Amazonians and rural farmers in Ecuador in their fight against Chevron.

For decades, the oil giant had destroyed the local ecosystem, dumping billions of gallons of toxic waste, leaving pits of oily waste water the size of football fields.

In 2011, an Ecuadorian court awarded Donziger's clients $19.5 billion in damages.

Rather than finally pay for some of the damage it had done, Chevron — which has some $260 billion in assets — quickly sold all of its holdings in Ecuador and got to work doing everything it could to get out of paying the people it harmed.

And, in addition to fighting the judgment, Chevron had a new goal: Ruin Steven Donziger's life.

Let's start at the beginning

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Supreme Court Considers The Case Of The Cussy Cheerleader

Save the cheerleader, save the First Amendment.

"fuck school fuck softball fuck cheer fuck everything."

Those words, posted by a frustrated cheerleader to social media, are now in front of the Supreme Court.

This week, the Court heard arguments in Mahanoy Area School District v. B.L., a case that could shape students' rights for a generation.

Here's what happened

In 2017, Brandi Levy was a sophomore at Mahanoy Area HIgh School in Pennsylvania. She tried out for the varsity cheerleading squad, didn't make the cut, and was assigned to the junior varsity team instead. Frustrated, she posted a picture of herself and a friend flipping off the camera to Snapchat, with the caption "fuck school fuck softball fuck cheer fuck everything."

Someone sent another cheerleader a screenshot of the post and she narced to her mom, who was one of the cheerleading coaches. While one would hope that grown-ass adults would be above wading into teenage cheerleading drama, they instead were the ones who esalated things.

This is normal teenager stuff that happens literally every day. But the adults found themselves incapable of being the grown-ups in the room. In the end, Levy (now attending Bloomsburg University of Pennsylvania ) got kicked off of the cheerleading squad for a year as punishment for ... using a swear on the internet.

Also, before we move on, let's not dance around the fact that this entire "controversy" is sexist. No male football players are being kicked off of their public high school teams for swearing on the internet.

Okay, now we can continue.

Schools and speech

Levy was off-campus — and it was the weekend — when she posted her snap, so the issue here is what authority the school has to punish her. And this is, believe it or not, the first Supreme Court case to really get into students' free speech rights on social media.

As social media became ubiquitous for young people, public schools and courts alike have struggled with what to do about it. Issues about speech outside of school run the gamut in terms of seriousness. One the one side, you have things like a cheerleader using a swear word on the internet outside of school, which should — fairly obviously, IMO — be outside the reach of school discipline. But, on the other end of the spectrum, you have bullying so pervasive it drives children to suicide.

From the looks of yesterday's oral argument, no one really knows what to do. And this isn't shocking. Courts almost universally struggle to adapt to new technology. It wasn't until 2019 that SCOTUS said law enforcement has to get a warrant before accessing people's cell phone GPS data.
The foundational case for student speech rights is Tinker v. Des Moines Independent Community School District. Decided in 1969, Tinker dealt with five students who were suspended from school for wearing black armbands to protest the Vietnam War. The Court famously ruled that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and held that the students' silent protest was protected political speech.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students… are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.

Since Tinker, courts have looked at whether speech happened on-campus or off-campus as an important component of when schools can punish student speech. Under the traditional case law, schools can't punish off-campus speech unless it's at a school-related event. This was the justification the Court used in 2007 to uphold the "BONG HiTS 4 JESUS" kid's suspension in Morse v. Frederick — he held up said banner at a school-sponsored event.

This case is about more than an outsized punishment for something a public school has no business intervening in. If the school district has its way, schools will be able to punish students for all kinds of speech, no matter where or when or how it happens, if it "disrupts" the school environment.

How this one ends up is anyboody's guess — especially because this is exactly the type of case that can result in strange bedfellows. The traditional liberal and conservative labels don't always hold when it comes to issues of free speech. The ACLU's national legal director, David Cole, who argued the case on behalf of Brandi Levy, told the Washington Post that, "You won't find another case in the past decade with such a diverse range of groups on the same side. We have support from the right to the left, from students to administrators, from civil rights groups, religious liberty organizations and red states." The Biden administration, on the other hand, sided with the school.

Right now, the only justice whose vote seems clear is Clarence Thomas, who wrote a concurrence in Morse to say that he thinks students have no free speech rights whatsoever and Tinker was wrongly decided. Because of course he did.

At the argument, most of the judges seemed to struggle weighing the facts of this case against any broader rules the Court could set. The justices acknowledged this, with Justice Breyer saying, "As far as I can see, I can't write a treatise on the First Amendment in this case." Justice Kegstand agreed, saying he "strongly share[d] Justice Breyer's instincts [...] that we probably can't write a treatise here and shouldn't write a treatise here and can't foresee all the things that could arise in a lot of the hypotheticals that have been raised."

Kegstand, in a shockingly reasonable moment, also said that, "as a judge and maybe as a coach and a parent too, it seems like maybe a bit of overreaction by the coach" and that his reaction to Levy's snap was "she's competitive, she cares, she blew off steam like millions of other kids have when they're disappointed about being cut from the high school team or not being in the starting lineup or not making all league." (Though knowing our dear Kegs Kavanaugh as we do, he is probably just still upset about not making the high school cricket team.)

Based on how oral arguments went, the best outcome would probably be SCOTUS punting the issue of punishing off-campus speech and just saying Levy's speech was protected. This is a complicated issue and a confused Supreme Court issuing a ruling when it doesn't fully grasp the nuances of free speech in the age of the internet can't be a good thing for anyone.

Fuck this school, fuck this case, fuck everything

This case is a school overstepping its bounds and punishing a teenager for normal teenage behavior that happened outside of school. The Court doesn't need to write a treatise on First Amendment law to see that the outcome here was wrong.

Brandi Levy vented about something frustrating on social media. She didn't even name, let alone bully, any other students. She did a normal thing that other normal teens do every damn day.

If anyone's behavior should be scrutinized here, it isn't the 14-year-old girl.

This isn't a case about cheerleading. It isn't even really a case about Brandi Levy.

It's a case about adults who should know better.

[ YouTube / Transcript ]

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Supreme Court Looks Ready To Ditch ALL Gun Laws, Won't That Be Fun?

New York State Rifle & Pistol Association Inc. v Corlett looks like it will be a bloodbath.

This week, the Supreme Court decided to hear a gun case, granting cert in New York State Rifle & Pistol Association Inc. v. Corlett.
It's bad.
It's very bad.

At the very least, this case is almost certainly going to make it easier for people to carry guns with them in public. And at the worst, it could be used to gut any number of gun control laws across the country.

Concealed carry for everyone!

New York and seven other states make people show "good cause" to get a concealed carry permit. More than one-quarter of the US population lives in those states.

Concealed carry laws were some of the first firearms restrictions in the country and the New York law at issue in this case has been on the books since 1913. If you want to carry a gun in public for something like going to a shooting range, you can get a limited license to carry it specifically for that purpose. But to get an unrestricted concealed carry license, you have to "show a special need for self-protection distinguishable from that of the general community."

Now, the New York State Rifle & Pistol Association and two men who were denied concealed carry permits are arguing that "law-abiding citizens" have a god-given Second Amendment right to take their guns wherever they please — and the Supreme Court appears poised to agree with them. The crazies are represented by former George W. Bush solicitor general and go-to Republican lawyer Paul Clement.

The fact that the Court took the case at all indicates which way it's going to rule. The Second Circuit upheld the lower court's dismissal of Corlett and courts that get to pick and choose which cases to hear don't tend to agree to hear something just to say, "Great job! Well done!"

There's also the little matter of our current Court ...

Laws, judges, and guns

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DOJ Investigating Minneapolis Police, Derek Chauvin, Otherwise Doing Their Job

It's nice to have a Department of Justice that gives even the smallest of shits about police officers murdering Black people.

Derek Chauvin has been convicted of murdering George Floyd, but our work on police reform is still just beginning.

Luckily, we no longer have a DOJ run by a fascist or a man who even Republicans considered too racist to be a federal judge. Following Chauvin's guilty verdict, Attorney General Merrick Garland reminded us that this week's "verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis[,]" and announced an investigation into the Minneapolis Police Department, "to determine whether the Minneapolis Police Department engages in a pattern or practice of unconstitutional or unlawful policing."

(Transcript available here.)

And that's not all. The DOJ is also considering bringing federal charges against Chauvin — both for murdering Floyd and for beating and choking a 14-year-old Black child in 2017.

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