Unhappy Halloween: How Disguise Enforces Terror

The photos depict the evolution of KKK disguises, from the 1870s to 1920s to current. Next week, one of my classes will read Roland G. Fryer & Steven D. Leavitt’s fascinating business-model analysis of the KKK, “Hatred and Profits: Getting under the Hood of the Ku Klux Klan.” The glossy Ku Klux Klan disguise above reflects the glitzy version of the KKK in the 1920s. Fryer and Leavitt state:

The Ku Klux Klan reached its heyday in the mid-1920s, claiming millions of members. In this paper, we analyze the 1920s Klan, those who joined it, and the social and political impact that it had. We utilize a wide range of newly discovered data sources including information from Klan membership roles, applications, robe-order forms, an internal audit of the Klan by Ernst and Ernst, and a census that the Klan conducted after an internal scandal…. We find that individuals who joined the Klan were better educated and more likely to hold professional jobs than the typical American….   

Rather than a terrorist organization, the 1920s Klan is best described as a social organization built through a wildly successful pyramid scheme fueled by an army of highly-incentivized sales agents selling hatred, religious intolerance, and fraternity in a time and place where there was tremendous demand.

My research focuses on the 1870s and current forms of the KKK. I show a much darker side. Here is how the KKK invoked disguises as part of a terror campaign to discipline a black household domestic:

A witness to KKK depredations in 1868 (S.W. Rainey, Democrat) testified before Congress:

Question: Have you ever seen or heard the whistles or movements of what are known as the Ku Klux?

Answer: I saw some three men some two different times in disguise. They came to my house last year. They had a whistle. I heard them blow it several times.

Question: Do you know of any negroes being whipped, or in any way punished, by the Ku Klux preceding the election last November?

Answer: Yes, sir; one negro woman at my house. The men in disguise— don’t know who they were— took her out, at the request of my wife, and gave her, my son said, sixty-five lashes with a leather strap, and it done her good; I thanked them for it. They done it at the request of my wife. They told my wife they would do that much for her.

***

My point? To show how terror was used to coerce work. I then connect this racial terror to certain American workplaces.

This Halloween, think about the role of disguises in white nationalist terror. The Ku Klux Act of 1871— now, too narrowly interpreted by conservative courts, but still alive— says:

U.S. Code § 1985(3). Conspiracy to interfere with civil rights

If two or more persons go in disguise on the highway or on the premises of another, for the purpose of depriving, … any person or class of persons of the equal protection of the laws; … the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

My research aims to provide attorneys and courts a broader framework for holding white nationalists responsible for their terror.

Mitt Romney’s “Pierre Delecto”: Did He Mean “In Pari Delecto”?

Mitt Romney did not randomly choose this pseudonym for his secret Twitter account. He’s a very deliberate person. So what did he mean by adopting such a weird name?

I don’t know, but “Pierre Delecto” sounds lot like “In Pari Delecto.”

What is “In Pari Delecto”?

It’s a very standard judicial doctrine that means a court will not interfere to help a party who is harmed while he breaks the law.

Here is an explanation from Kirschner v. KPMG, LLP, a mundane court opinion from a New York state appeals court in 2015. You’ll understand the doctrine after reading this account:

“The doctrine of in pari delicto mandates that the courts will not intercede to resolve a dispute between two wrongdoers. This principle has been wrought in the inmost texture of our common law for at least two centuries (see e.g. Woodworth v. Janes, 2 Johns.Cas. 417, 423 [N.Y.1800] [parties in equal fault have no rights in equity]; Sebring v. Rathbun, 1 Johns.Cas. 331, 332 [N.Y.1800] [where both parties are equally culpable, courts will not “interpose in favour of either”]).

The doctrine survives because it serves important public policy purposes. First, denying judicial relief to an admitted wrongdoer deters illegality. Second, in pari delicto avoids entangling courts in disputes between wrongdoers. As Judge Desmond so eloquently put it more than 60 years ago, “[N]o court should be required to serve as paymaster of the wages of crime, or referee between thieves. Therefore, the law will not extend its aid to either of the parties or listen to their complaints against each other, but will leave them where their own acts have placed them” (Stone v. Freeman, 298 N.Y. 268, 271, 82 N.E.2d 571 [1948]).

The justice of the in pari delicto rule is most obvious where a willful wrongdoer is suing someone who is alleged to be merely negligent. A criminal who is injured committing a crime cannot sue the police officer or security guard who failed to stop him; the arsonist who is singed cannot sue the fire department.”

Why the Colorado Wall Idea Isn’t So Funny

My friends and family got a chuckle out of President Trump’s “border wall in Colorado” comment. I found it foreboding.

We have had versions of state borders, many for biased or racist reasons.

Start with our Constitution: It had a section that required states to return “fugitive” slaves to the state where they escaped. 
That was a legal border to contain slaves in their home states.

Then we had California’s Depressions-era law to keep out Okies (dubbed the Anti-Okie Law). 
“Okie” is a derogatory term that roughly equates to the N-word. These people were often offspring of whites and Native Americans. They had darker complexions. Even white Okies had dark skin after living through the Dust Bowl era and having dirt deeply embedded in their skin.

California enacted a criminal law to bring in “any indigent person who is not a resident of the State, knowing him to be an indigent person.” In Edwards v. California, a Californian drove to Texas and returned with his unemployed brother-in-law. He was tried, convicted and given a six-month suspended sentence. On appeal, the Supreme Court unanimously vacated the verdict and declared the law unconstitutional, as violating Constitution’s Commerce Clause.

Just this week, the Supreme Court looked at a state-border type law. Kansas has a law that criminalizes the fraudulent use of a Social Security card. They arrested and convicted several immigrant restaurant workers under the law. 
The question is whether a state can impose a criminal sanction for fraudulently using a Social Security card when the federal government has its own criminal sanction.

Kansas has a backdoor immigration law. Some people will surely favor it: No one likes identity theft. But if red states can enforce their own version of immigration policies, then blue states can pull and tug in the opposite direction. In fact, California has done just that in AB 450, which imposes criminal fines on employers who cooperate with ICE audits and roundups that don’t have a search warrant.

As my wife noted over breakfast, Trump said it was a joke. As for me, I worry every time he jokes (e.g., his joke that he could shoot someone on Fifth Avenue and get away with it).

The F-Word: “Fuck in Education”

I have had two consecutive arbitration cases involving employees who used “fuck” in a tirade. Both employees were fired. For guidance on how the law treats the F-word, I consulted a classic law review article, Christopher Fairman, “Fuck,” Cardozo Law Review (2007).

Alas, he had nothing to say about the F-word in the workplace, which I find effing disappointing.

But his research is immensely interesting and worth sharing.

In general, he notes:

Fuck is a highly varied word. While its first English form was likely as a verb meaning to engage in heterosexual intercourse, fuck now has various verb uses, not to mention utility as a noun, adjective, adverb, and interjection….

Linguists studying fuck identify two distinctive words. Fuck means literally “to copulate.” It also encompasses figurative uses such as “to deceive.” Fuck, however, has no intrinsic meaning at all. Rather, it is merely a word of offensive force that can be substituted in oaths for other swearwords or in maledictions. The fact that Fuck can be substituted for either God or hell illustrates the lack of any intrinsic meaning.

Fairman devotes an entire section to “Fuck Jurisprudence: … Fuck in Education”

He says:

It’s axiomatic that public school students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” At the same time, “the First Amendment rights of students in the public schools ‘are not automatically coextensive with the rights of adults in other settings,’ and must be ‘applied in light of the special characteristics of the school environment.”’

…

(Students Who Use the F-Word): For example, the Sixth Circuit recently held that an Ohio high school could ban Marilyn Manson t-shirts as vulgar or offensive speech under Fraser. The t-shirt starting the brouhaha depicted a “three-faced Jesus” and the words “See No Truth. Hear No Truth. Speak No Truth.” On the reverse was the word “BELIEVE” with the L, I, and E highlighted. After being told by the principal to change or go home, the student went home. Defiant, he returned the next three days donning a different Marilyn Manson shirt; each day he was sent home. A split panel of the Sixth Circuit held that under Fraser the school could ban merely offensive speech without having to apply Tinker's substantial and material interference test.

What is most troubling is the court's methodology. Rather than explaining why the t-shirts themselves were offensive— where all the court had to offer was that Marilyn Manson appeared “ghoulish and creepy”—  the court focused on the “destructive and demoralizing values” promoted by the band through its lyrics and interviews. Using a judicial version of the transitive property, the court found that the band promoted ideas contrary to the school’s mission and the t-shirts promoted the band. Ergo the t-shirts were offensive.

(Teachers Who Use the F-Word): Unfortunately, teacher speech exists in a murky First Amendment environment. As the Second Circuit recently lamented: “Neither the Supreme Court nor this Circuit has determined what scope of First Amendment protection is to be given a public college professor’s classroom speech.” Public school teachers traverse the same uncertain terrain.

…

The First Circuit revisited the issue again in Mailloux v. Kiley, where another high school English teacher taught a lesson on taboo words that included writing fuck on the blackboard. Following a parent’s complaint, he was fired for “conduct unbecoming a teacher.” While the district court seemed to agree with the testifying experts that the way Mailloux used the word fuck was “appropriate and reasonable under the circumstances and served a serious educational purpose,” divided opinion on the issue compelled the court to fashion a test for such situations. Ultimately, the district court held that it was a violation of due process to discharge Mailloux because he did not know in advance that his curricular decision to teach about fuck would be an affront to school policies.

…

If you have had the fortitude to read this much, here is a closing perspective from the late Prof. Fairman:

Suffice it to say, fuck is everywhere. As author Roy Blount, Jr. puts it: “the f-word is a fact of life. It thrives.” One recent Internet search revealed that fuck “is a more commonly used word than mom, baseball, hot dogs, apple pie, and Chevrolet.” It is present in movies, television programs, and popular music. An Associated Press poll conducted in March 2006 found that sixty-four percent of those surveyed used the word fuck.

Did You Know That Italian-Americans Were Lynched?

In a morning tweet today, President Trump compared his impeachment inquiry to a “lynching.” 

News outlets are reporting that the lynching tweet opens deep wounds for blacks in America. No doubt, this is true. 

However, the tweet allows us to acknowledge that racism in America is—and has been— broader than blacks as a target for hate. 

Italian immigrants were treated very much like blacks, including being lynched by mobs.

The worst instance occurred in New Orleans on March 14, 1891. A mob murdered 11 Italian Americans for their alleged role in the murder of police chief David Hennessy after some of them had been acquitted at trial. It is believed to be the largest single mass lynching in U.S. history.

The focus of this mob terror were the defendants who were acquitted. Believing the jury had been bribed, a mob broke into the jail where the men were being held and killed eleven of the prisoners.

Some of the city’s most prominent citizens were present for the lynchings.

The American public responded with hate toward Italians, not sympathy. 
Anti-Italian sentiment led to calls for restrictions on immigration—restrictions that came into being in 1917, 1921, and 1924.
***

As the mob was breaking down the door with a battering ram, prison warden Lemuel Davis let the 19 Italian prisoners out of their cells and told them to hide as best they could.

The killings were carried out by a small, disciplined “execution squad” led by city leaders, including Walter Denegre (lawyer), James D. Houston (politician and businessman); and John C. Wickliffe, editor of the New Delta newspaper. The lynch mob included John M. Parker, who was later elected as Louisiana’s governor, and Walter C. Flower, who was later elected as mayor of New Orleans.

One of the victims was Emmanuele Polizzi, a street vendor, who was thought to be mentally ill. He was dragged from prison, hanged from a lamppost, and shot. Antonio Bagnetto, a fruit peddler, was hanged from a tree and shot.

Here is a list of the victims. May their brutal murders be a memory for us today as we confront hate and gross misuse of lynchings for crass political purposes.

The following people were lynched:

Antonio Bagnetto, fruit peddler: Tried and acquitted.

James Caruso, stevedore: Not tried.

Loreto Comitis, tinsmith: Not tried.

Rocco Geraci, stevedore: Not tried.

Joseph P. Macheca, fruit importer: Tried and acquitted.

Antonio Marchesi, fruit peddler: Tried and acquitted.

Pietro Monasterio, cobbler: Mistrial.

Emmanuele Polizzi, street vendor: Mistrial.

Frank Romero, ward politician: Not tried.

Antonio Scaffidi, fruit peddler: Mistrial.

Charles Traina, rice plantation laborer: Not tried.

Trump’s Treason Accusations Offer Lesson on Constitution

Few people take the president’s treason accusations seriously. But we don’t talk about treason much at all. This is a good time to see what our Constitution says about treason.

Specifically, treason is covered in Article III, Section 3:

Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

In the blue language, notice the extremely narrow phrasing of treason— levying war against the U.S.! Congress may enact this type of law (and has done so.)

The red language has an interesting history that relates to Trump’s meltdown tweets—for example, the retweet above.  

Taken literally, Trump is suggesting that Democrats as a class or group are guilty of treason.

This type of group crime was fairly common in England from the 1300s-1600s. 

Political enemies of the English Crown would, from time to time, would be subject to bills of attainder—entire families, for example, would be stripped of property, citizenship, and their own royal titles. Many were killed—or deported.

Attainder comes from a root word “attinctura,” which means “stain” (corruption of blood).

And here is the main point of this post: The Constitution is premised on the idea that no groups are guilty of crimes, only individuals can be held accountable. 

In other words, it’s not a crime to be a Democrat, or a Communist (we’ve had those cases), or to turn the tables, a Republican.

Let’s close with an actual example. 

Japanese Americans were forcibly removed from their West Coast homes and sent to internment camps. Sadly, the Supreme Court upheld this action, though two justices dissented. 

Justice Robert Jackson used the “group guilt” concept in rejecting FDR’s military orders, saying:

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.” Article 3, s 3, cl. 2.

But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.

The prohibition against bills of attainder means that no matter how ugly our politics get, the Constitution prohibits Congress from enacting a law that criminalizes the status of political opponents or dissidents.

Tree of Life Anniversary Approaches: Church Violence and White Nationalism

A recent news story reported the video shown at a Trump-support rally, featuring the president’s head superimposed on the body of a man who opens fire inside the “Church of Fake News” on parishioners who have the faces of Trump's political opponents and logos of media organizations superimposed onto their bodies (see photo above).

In my working paper, “Go In Disguise on the Highway”: Online Racial Terror Conspiracies and the Ku Klux Klan Act,” I am cataloging a long history of white supremacist shootings, from the late 1860s through 2018.

Here is an account from a Meridian, Mississippi newspaper in 1871, related during hearings to pass the Ku Klux Klan Act: “During the night the residence of Aaron Moore and the colored Baptist church were burned by some unknown persons.” https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=100/llcg100.db&recNum=628

  

Fast-forward to 1963, when four KKK members planted dynamite at the 16th Street Baptist Church in Birmingham, Alabama, killing four children in the church.

In the current period, there is Dylan Roof’s shooting and killing of nine black churchgoers in Charleston, South Carolina; the Christchurch slaughter of 51 worshipers in a mosque; the 2012 shooting and killing of 7 worshipers in a Wisconsin Sikh temple; and the October 27, 2018 shooting and killing of  11 worshipers at a Pittsburgh synagogue-- and more. 

Why do these killings occur at a place of worship? What are the specific motivations for linking white supremacy to terror centered around an activity where “outgroups”— blacks, Muslims, Jews, Sikhs— are in their own space, and not co-mingling with white, Christian nationalists?

I’m open to your ideas and thoughts.

***

Why does this matter?

The KKK Act holds racial conspiracies and their conspirators liable for damages that end in terroristic violence.

But here’s the catch: Congress limited relief to a “class” of victims that courts have said are only blacks and their political supporters— so the act applies where, for example, terror is used to intimidate blacks protesters, or voters.

But it misses the “church violence” phenomenon, and also work-related forms of racial terror.

I am combing the congressional record from 1871 and earlier and finding that Congress intended to hold domestic terrorists responsible to these “classes” of victims.

And what is my point? To create a legal framework to make gun producers (gun sellers [e.g., Colt], internet platforms [e.g., Facebook]; political groups such as those that created and distributed the Trump video responsible for the immense damages caused by these occasionally live-streamed terror, internet fueled, AR gun-enabled slaughters at houses of worship and workplaces.

Do You Say Illegal or Unlawful Alien? What the Law Says

ICE Raid in Mississippi (August 8, 2019)

People get into arguments over this question. In tomorrow’s immigration and employment class, we cover “U.S. Code § 1324a— Unlawful employment of aliens.” Google that expression—see for yourself: It says UNLAWFUL, not illegal and not criminal.

The law states: “(a) Making employment of unauthorized aliens unlawful … (1) In general, it is unlawful for a person or other entity—

(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment.”

It does not refer to aliens as “illegals.” They are “unauthorized.”

Is the law PC?

No. When it was drafted in 1986, Congress created civil fines for employers who knowingly hire unauthorized aliens.

Why? Congress didn’t believe employers should actually go to jail for this.

Also, Congress didn’t criminalize “unlawful entry” to the U.S. because enforcement would add millions of people to our jails, and break the criminal justice system with the sheer volume of this population.
***

If our nation feels more strongly now than in 1986 that this practice is criminal, we don’t need to build a wall. Start throwing the hundreds of thousands of employers in jail who hire people who have entered the U.S. unlawfully. And throw millions of people in jail who have done this.

I don’t believe our country wants that. I’ll give a proof point: The Mississippi meat packing companies who were raided by ICE in August for hiring hundreds of unlawful aliens are not being prosecuted under a state law that criminalizes this hiring practice. If a ruby red-state cannot enforce its own criminal immigration hiring law, it means that this approach to our federal law would not be effective.

Here’s the bottom line: Our nation doesn’t want to imprison the large numbers of white professional employees and company owners who hire these aliens. That is why this employment is “unlawful,” not criminal.

Trump Judicial Nominee Opposes In Vitro Fertilization

Countless couples have used in vitro fertilization to bring a child into the world. I would know: My wife and I were blessed with a remarkable child after using this common technology.

Now meet Sarah Pitlyk (pictured with Brett Kavanaugh, far right), nominated by President Trump to be a federal judge in Missouri. 

Ms. Pitlyk has never tried a case; nor conducted a deposition (a very common legal interview in most trials); nor conducted a direct exam or cross exam of a witness.

No worries, however: Pitlyk is a special counsel at the Thomas More Society, a pro-life law firm that advocates for religious freedom. She was part of the firm’s team that defended undercover activist David Daleiden, who filmed and selectively edited videos to accuse Planned Parenthood of fetal tissue trafficking back in 2015.

She goes far beyond seeking to overturn Roe v. Wade. As a pro-life lawyer, she favors new frontiers for the legal personhood of embryos. Once confirmed, she is expected to promote the concept of “personhood” of existing embryos, while opposing future uses of in vitro fertilization and surrogacy.

In a case she assisted for the politicized "religious freedom" group involving a dispute between a husband and wife over custody of frozen embryos, she argued that the children of this married couple should be considered as affected parties because they would “have to navigate the murky psychological waters of knowing that they had similarly situated siblings who died at the hand of their father.” 

***

I cannot attribute the following to Ms. Pitlyk: I’m just saying that the case that gave rise to Roe v. Woe was Griswold v. Connecticutt (1965). That state—like others with large Catholic populations— enacted laws to criminalize the sale of all birth control. The Supreme Court ruled that a woman has a constitutional right of privacy regarding her decision to use or not use birth control.

This is not religious freedom. 
If right-to-lifers want to make a personal choice based on religious belief not to use birth control, that is their right, too. But they have no right to deny women and men the basic liberty to use existing reproductive technologies, ranging from condoms to high-tech applications.

To Fast or Not to Fast for a Religious Holiday? An HR and Personal Question

Like many Jews, I will begin a fasting period at sunset tomorrow through sunset on Wednesday. We fast to repent; and we fast to draw closer to the experiences of people who suffer in order that we may repair the world.

HR Question: But first, my thoughts turn to Muslims who observe Ramadan. Muslims are not permitted to eat or drink or allow anything to pass their lips from sunrise to sunset. This past year, with Ramadan falling in late spring (lasting about a month), Muslims in the northern hemisphere had to go 17 hours without food or drink. For many, this meant enduring hardships while working.

Must an employer accommodate an employee’s religious request related to fasting—for example, by giving time off? The short answer is “no.” The EEOC’s Guidance on Religious Discrimination is over 43,000 words and has dozens of examples, but not one is on fasting. (It’s worth perusing, here https://www.eeoc.gov/policy/docs/religion.html#_Toc203359529).

So, here is case (from 2015): a meatpacking company in Colorado employed several hundred Muslims. During Ramadan, they requested brief time to pray every day, and to adjust the break time to meet the religious requirement of praying as the sun was setting. The employer eventually imposed discipline for employees who left the production line to pray. A court ruled this was not religious discrimination: The employer had a business justification (in a meatpacking plant, it is essential to move carcasses rapidly and continuously to prevent contamination).

An employer cannot flatly refuse to consider an accommodation—but the law favors employers if they offer a de minimis (minimal) accommodation. Here, the employer offered break time at 7:30 for Ramadan, but not a rotating accommodation period. (The case, EEOC v. JBS USA, Inc., is here, https://www.leagle.com/decision/infdco20150720805).

Personal Question: Many employers—including mine— allow employees to take religious holidays. Unlike my Muslim brethren at the meatpacking plant, I face a different conflict: Like them, my faith requires fasting; but my conflict relates to my father’s injunction: “I fasted for you, and your family, and the children of your children, in Auschwitz and Bunzlau.” My Dad was not one for reverse psychology—he was as transparent as glass.

I believe my Dad never made peace with G-d for not interceding to prevent the Holocaust. If I am right, can I blame him for that? No, but my Dad’s apparent unwillingness to forgive G-d strangely conflicts with the Jewish Day of Atonement. If my father could not forgive G-d, why should G-d forgive my father’s children and grandchildren?

The answer (for me) is that my father’s anger was forgivable, and he was therefore exempt from fasting.

But I have known nothing but goodness and blessings, so the duty to fast applies to me.

Elimination of the Fittest? How Economists Led the Hysteria Over “Race Survival”

Come to class this week. We’re reading from leading economists of the early 20^th century who were avowed eugenicists. 

This meant they believed that the racial superiority of whites was threatened by immigration and welfare policies that set up conditions for "dysgenic competition" between the races, with the darker groups snuffing out the supposed superiority of whites.

These economists strongly opposed immigration because this “race amalgamation” would dilute the “white stock.”

I share excerpts and welcome comments:

“Fear and dislike of immigrants certainly were not new in the Progressive Era. But leading professional economists were among the first to provide scientific respectability for immigration restriction on racial grounds.

They justified race based immigration restriction as a remedy for ‘race suicide,’” a Progressive Era term for the process by which racially superior stock (“natives”) is outbred by a more prolific, but racially inferior stock (immigrants).

The term “race suicide” is often attributed to Edward A. Ross (1901a, p. 88), who believed that ‘the higher race quietly and unmurmuringly eliminates itself rather than endure individually the bitter competition it has failed to ward off by collective action.’”

By 1912, Simon Patten (p. 64), the reformist Wharton School economist who served as AEA president in 1908, could say, “[T]he cry of race suicide has replaced the old fear of overpopulation.”

In explaining why those of inferior stock were more prolific, early Progressive Era economists emphasized how economic life under industrial capitalism was increasingly dysgenic, that is, it tended to promote the survival of the unfit.

Patten, for example, argued (as quoted in D. Ross, 1991, p. 197) that “every improvement . . . increases the amount of the deficiencies which the laboring classes may possess without their being thereby overcome in the struggle for subsistence that the survival of the ignorant brings upon society.”

In response, Patten ultimately argued for the state taking over the task of

selecting the fittest—eugenics. “Social progress is a higher law than equality,” Patten (1899, pp. 302–303) volunteered, and the only way to progress was the “eradication of the vicious and inefficient.”

…

Practical implications: Oppose any social welfare program that helped the poor on grounds that compassion would help the poor survive … and “outbreed” successful people.

…

We will explore whether there are echoes today from the past, including this example:

Walker (1899, p. 424) proposed that native Americans would not compete with immigrants from the “low-wage races.” “The American shrank from the industrial competition thrust upon him,” Walker argued. “He was unwilling himself to engage with the lowest kind of day labor with these new elements of the population; he was even more unwilling to brings sons and daughters into the world to enter that competition.” Walker (1896, p. 828) characterized the new elements of the population—“ peasants” from “southern Italy, Hungary, Austria, and Russia”—as “beaten men from beaten races; representing the worst failures in the struggle for existence.

Centuries are against them, as centuries were on the side of those who formerly came to us.” Walker (1899, p. 447) predicted that, without racial immigration restriction, “every foul and stagnant pool of population in Europe, [in] which no breath of intellectual life has stirred for ages . . . [will] be decanted upon our shores.”

Source: Thomas C. Leonard, Eugenics and Economics in the Progressive Era (2005)

ICE Will Collect Migrants’ DNA: How That Affects American Citizens

Lost in the fury of Ukrainegate, the Trump administration announced a rule to collect DNA samples from all migrants in detention. This will significantly erode basic liberties for American citizens.

How so?

First, the samples will be fed into a national law enforcement database. 
Ordinarily, that database is reserved for people booked for serious crimes such rape, armed assault— that type of crime.

The vast majority of migrants are not suspected of committing any serious crimes—but this plays into the president’s corrosive picture of Mexican rapists, Central Americans M13 gang members (most are fleeing gang violence), and the like.

Now, suppose that a migrant’s DNA matches a Hispanic man in LA who has been booked on drug trafficking charges. Now his family can be a focus for an ICE raid on the reasoning that they probably are in the U.S. without legal status.

Okay, some people might say— if they don’t belong here in the first place, deport them.

So, let’s see this how this affects people whose white ancestors came over on the Mayflower.

In the early 1980s, Nancy Reagan had a famous and potent campaign called, “Just Say No to Drugs.” She convinced her husband do something about this scourge. The Reagan administration then implemented drug testing for certain employees in every Cabinet-level department.

In the Treasury Department (before Homeland Security was a Cabinet position), Customs and Border Patrol officers were all required to be drug tested.

In a major Supreme Court case, the Court ruled that the search and seizure of a person’s urine did not violate the Fourth Amendment.

Critics said the ruling would numb Americans to the taking of their civil liberties—and they were right.

The Fourth Amendment is a limit on government power. No government agency can “search or seize” a person or his/her effects without “probable cause.” The Court said it would be impractical to use a probable cause standard—a shocking concession that the words in the Fourth Amendment don’t actually mean what they say.
Some of readers of this blog are old enough to remember when we would take at least mild offense to being handed a bottle to pee in so that we could be hired. We never asked hard questions about what our prospective employers were searching for—we assumed it was illicit drugs.

This precedent— called National Treasury Employees Union v. Von Raab— has no limit in it.

Fast forward to 2020: Now the same employee group, border patrol agents, are at the center of another “search or seize” operation but this one dwarfs urine testing for drugs.

This opens the door to having a mandatory genetic database— perhaps, for example, to issue a biometric ID card for citizens and legally admitted foreigners.

Meanwhile, the government has a vast store of genetic information. The Mayflower descendants who now live in Iowa will have their DNA run through a supercomputing database every day to see if a strand matches a DNA sample found at a crime scene.

Perhaps the Mayflower family is okay with that.

My question is: What does the Fourth Amendment mean in 2020 and the future? My answer is: Much less than the framers intended.

Public Shaming of a Job Applicant: Could It Kickass?

Kickass Masterminds posted on its Twitter account a “PSA” that shamed an applicant who apparently appended a photo of herself in a bikini. Here is what Kickass reportedly posted:

“PSA (because I know some of you applicants are looking at this) do not share your social media with a potential employer if this is the kind of content on it. I am looking for a professional marketer - not a bikini model.”

Kickass added this: “Go on with your bad self and do whatever in private. But this is not doing you any favors in finding a professional job.”

The applicant is Emily Clow. Does she legal recourse?

Probably. 

Several torts (general “civil wrongs”) apply to these situations.

The obvious one is defamation. It usually requires proof of (1) a communication, (2) falsity, (3) publication, and (4) damages that result from publication.

Of course, it's questionable whether Kickass said anything false. Ms. Clow did present herself in a bikini-photo, apparently. 

But she can sue under a related tort, called false light. She has been portrayed not untruthfully but misleadingly in a false light. This statement is especially problematical: “Go on with your bad self and do whatever in private. But this is not doing you any favors in finding a professional job.”
Kickass, what are you implying about Ms. Clow and how does her personal life matter to you as an employer?

Another probable tort claim is emotional distress. This is a tougher lift for plaintiffs, who need to show that the defendant's conduct was “extreme and outrageous,” usually defined as beyond the norms of decency.

What about damages?

Everyday that Ms. Clow is unemployed or employed in a job below her qualifications, Kickass has exposure.

These torts include damages for (a) economic, and (b) noneconomic injuries.

Noneconomic injuries include pain and suffering, mental anguish, loss of enjoyment of life, and anxiety. Courts generally allow proof of appetite loss, lack of energy, sexual dysfunction, mood swings, medical issues, loss of an intimate relationship, and/or sleep disturbances.

Kickass’s posts were smug and self-righteous. In the end, Ms. Clow might kick their butt.

Hydroponic Octopus Farming? My UIUC Student’s Project

I teach an undergraduate course in our Campus Honors Program. Today, I had coffee with a sophomore from a farm in southern Illinois.

He’s the team leader for a UIUC agricultural marketing project that is looking into hydroponic octopi farming.

Some background: A UIUC team of professors and students in the 1980s helped to develop hydroponic tilapia. 

For mature blog readers, you might recall that tilapia was not on the regular menu back in the 1980s. 

Most of our tilapia are “farmed.” They are grown hydroponically. The waste from the fish is circulated as fertilizer nearby for hydroponic tomatoes and lettuce. It’s sustainable, profitable, and doable on a small piece of land.

My student and his team have discovered that demand for octopi has grown by over 600% since 1990. Supply has become a problem. The biggest octopus fishery in the world has collapsed.

Showing my ignorance, I volunteered: “I assume that is China.”

“No, professor, the largest octopi fishery was off the coasts of Morocco and Spain.”

It turns out that octopus is not only an Asian food—it is a staple in several Mediterranean diets. 

The photo shows a Spanish octopus dish.

My student says that a profitable octopus farm can be put on a one-acre plot of land, right here in Illinois (or anywhere else with good water supply). Waste runoff? Negligible. Put your farm 40 miles from Chicago, St. Louis, or Indy and you've got good markets for your product.
Like tilapia, octopus farming can be integrated with hydroponic vegetable farming.

Here’s wishing the UIUC Ag Marketing Team great success in national competition. We’re all winners when our students are pushing the boundaries of innovation.
PS: Check out this nutrition profile for a 3 ounce serving of octopus (high in Vitamin A, B12, Phosphorus, Selenium, and Niacin):

Nutrition Facts
For a Serving Size of 3 oz (85g)
Calories 139.4 Calories from Fat 15.9 (11.4%)
% Daily Value *
Total Fat 1.8g -
Saturated fat 0.4g -
Monounsaturated fat 0.3g -
Polyunsaturated fat 0.4g -
Cholesterol 81.6mg -
Sodium 391mg 17%
Potassium 535.5 mg -
Carbohydrates 3.7g -
Net carbs 3.7g -
Sugar 0g -
Fiber 0g 0%
Protein 25.3g
Vitamins and minerals
Vitamin A 76.5μg 9%
Vitamin A IU 255IU -
Vitamin B6 0.6mg 43%
Vitamin B12 30.6μg 1275%
Vitamin C 6.8mg 12%
Vitamin D 0μg 0%
Vitamin D IU 0IU -
Vitamin D3 0μg -
Vitamin E 1mg 6%
Vitamin K 0.1μg 1%
Caffeine 0mg -
Calcium 90.1mg 10%
Iron 8.1mg 102%
Magnesium 51mg 15%
Phosphorus 237.2mg 24%
Zinc 2.9mg 20%
Copper 0.6mg 32%
Manganese 0mg 2%
Selenium 76.2μg 109%
Retinol 76.5μg -
Lycopene 0μg -
Thiamine 0mg 4%
Riboflavin 0.1mg 4%
Niacin 3.2mg 17%
Folate 20.4μg 6%
Choline 68.9mg 13%
Water 51.4g -
Fatty acids
Docosahexaenoic acid (DHA) 0.1g -
Eicosapentaenoic acid (EPA) 0.1g -
Docosapentaenoic acid (DPA) 0g -
Total Omega 3 0.3g -
Amino acids
Tryptophan 0.3g -
Threonine 1.1g -
Isoleucine 1.1g -
Leucine 1.8g -
Lysine 1.9g -
Methionine 0.6g -
Cystine 0.3g -
Phenylalanine 0.9g -
Tyrosine 0.8g -
Valine 1.1g -
Arginine 1.8g -
Histidine 0.5g -
Alanine 1.5g -
Aspartic acid 2.4g -
Glutamic acid 3.4g -
Glycine 1.6g -
Proline 1g -
Serine 1.1g -

* The Percent Daily Values are based on a 2,000 calorie diet, so your values may change depending on your calorie needs.