Yet again, General Assembly moves to regulate speech

But this time they say it’s not going to be struck down by the courts as unconstitutional, really and truly, cross their hearts. A federal court has temporarily blocked California’s Age-Appropriate Design Code Act of 2022, ruling in favor of challenger NetChoice on free speech grounds. What is called the Maryland Kids Code, sponsored by Del. Sara Love (D-Montgomery), has similar aims and would bar various common online design features when aimed at kids, including video auto-play and frequent notifications. From the NYT:

(The New York Times and the Student Press Law Center filed a joint friend-of-the-court brief last year in the California case in support of NetChoice, arguing that the law could limit newsworthy content available to students.)

NetChoice has similarly objected to the Maryland Kids Code. In testimony last year opposing an earlier version of the bill, Carl Szabo, NetChoice’s vice president and general counsel, argued that it impinged on companies’ rights to freely distribute information as well as the rights of minors and adults to freely obtain information.

Maryland lawmakers say they have since worked with constitutional experts and amended it to address free speech concerns. The bill passed unanimously.

Unanimously! The legislators must be awfully confident the constitutional issues were fixed. More from NetChoice, asking Gov. Moore to veto the measure, here.

“We are technically the second state to pass a kids code,” said Delegate Jared Solomon, a Democrat who sponsored the children’s code bill. “But we are hoping to be the first state to withstand the inevitable court challenge that we know is coming.”

Oh, so it’s “hoping,” which may or may not be the same thing as “awfully confident.” We’ll see.

In miniature, March 20

• Among bad bills that didn’t make it past crossover, massive retroactive levies on oil and gas companies; tipped minimum wage [withdrawn by sponsor]; requiring “cage-free” egg production;
• Good bills that survived crossover: tiny but symbolic retreat on disastrous earlier juvenile justice package; compliance with requirements of federal Electoral Count Reform Act [unanimously passed both houses]; special elections for legislative vacancies [one version passed Senate];
• Bad bills that survived crossover or passed outright: declare guns to be public nuisance, meant to serve as basis for litigation [passed Senate]; SEIU-backed measure to force home health providers into employment status [passed Senate 33-13]; Moore-backed bill forcing owners of buildings with three or fewer units to give tenants time to put together purchase before selling the property to others, a serious incursion on property rights [passed House]; adding military and military-spouse status as protected categories in discrimination law [near-unanimous passage, both chambers]; new anti-gun office within state government, likely to serve as a taxpayer-funded engine of advocacy against Second Amendment rights [passed both chambers]; ban resale of event tickets at more than face price [passed Senate unanimously];
• Another bill that didn’t get out of committee would set up a compulsory royalty scheme and takedown rights for minors featured in some kinds of online family videos on social media, which would extend Maryland’s record of enacting online media laws of dubious constitutionality;
• Can a tax hike result in lower revenue? Consider Montgomery County’s big boost in real estate taxes [Pagnucco]
• “Maryland and Virginia are demographically similar states, but Maryland has long had a much higher crime rate…. The differences in crime rates are especially large for offenses that Virginia punishes most severely compared to Maryland, like robbery.” [Liberty Unyielding]

Frederick County preservation bill would curtail property owners’ rights

I presented public comments to the Frederick County Council Feb. 27 against Bill No. 24-01, which would greatly expand the powers of the Historic Preservation Commission and empower the county to issue mandatory preservation orders against owners of properties it decides are historically, architecturally, or culturally important. I was a bit surprised that mine were the only comments in opposition; there were I think three in favor, from preservation advocates. It was a second reading, and the council will not vote until a future meeting.

There is much that could be said against this bill, which sharply infringes on the traditional rights of property owners, including the right to demolish. It would change Frederick County’s preservation program from a mostly “carrot” approach (helping encourage good practice and authenticating property for favorable tax breaks, etc.) to much more of a compulsory “stick” regime.

In my three minutes I chose to focus on the harshness of the bill’s rules on hardship exemptions and on its aggressive treatment of the concept of demolition by neglect, by which is meant the failure to take care of a structure the county decides should be saved, whether or not the neglect endangers any neighbor. Under the terms of the bill, as I read them, after 30 days the county could send in its own contractor to do the repair work it believes is needed, slap a lien for the resulting sum on the structure, and then if not paid sell the structure at tax auction to recover the money.

And yet, I pointed out, around our communities demolition by neglect very often happens simply because people do not have the money to keep historic structures in good condition while also paying for doctor bills and their children’s education. That especially goes for country properties that may include multiple outbuildings with little use value. People do not always wind up owning these premises as some sort of speculation; they may inherit them from parents, or they may buy a country property intending to launch a business on it and find that doesn’t work out.

The bill at p. 12, line 37 cites an owner’s “undercapitalization” as an excuse that should not be accepted and at another (9: 21) lists demolition by neglect as among “self-created hardships” that should not count in an owner’s favor. At yet another (12: 32-33) it says an owner seeking delisting is to have the burden of proving by “clear and convincing evidence” that he or she “does not have the financial ability to comply.” That sounds to me as if they might be expecting you to bear all hardships short of that point — even if it means, say, throwing in your retirement savings to keep the barn standing.

I also pointed out that many provisions in the bill — from archaeological review before land development to the arch-empowerment of objectors — tended to be typical of more urbanized counties that have made development and thus housing more expensive. Time didn’t permit me to explore the backfiring of incentives a bill like this can cause, by giving property owners a reason *not* to put their buildings on tour or let local history societies write them up, for fear that taking too high a profile will invite a future mandatory preservation order.

I hope the council rethinks this bill and its direction.

Noncitizen voting in Maryland: a doubter’s view

An appeals court has ruled that New York City’s attempt to let green card holders vote in municipal elections violates New York’s state constitution and exceeds the city’s home rule powers.

Led by Takoma Park, Maryland municipalities have been at the forefront of noncitizen voting in local elections, with more trying the idea than in any other state. (Noncitizen voting is unlawful in state and federal elections.) The city of Frederick’s charter review committee has recommended a similar step. Last year, voters in Rockville by a wide margin defeated a proposal for noncitizen voting, while voters in Greenbelt approved it.

I myself think that even in calmer, happier times there wouldn’t be much of a affirmative case for extending the franchise to green card holders (let alone any further), and that right now — with a third of the U.S. electorate riled up by bogus claims about noncitizen votes supposedly swinging federal elections — is a peculiarly bad time.

Lawmakers propose to regulate egg production in other states

Three quarters of the eggs sold in Maryland are raised in other states. A bill in the Maryland General Assembly presumes to impose “cage-free” standards not just on Maryland chicken farmers, but on the suppliers of the other three-quarters, by making the sale of the eggs themselves unlawful.

Even if this is found to pass muster under the so-called Dormant Commerce Clause of the U.S. Constitution, it’s an aggressive and uncalled-for extraterritorial extension of one state’s regulatory powers over agriculture. A similar California law on pork was found to entail sending California inspectors to farms in other states, whose operators of course have no voice in the California political system. An Arizona egg edict “doubled or tripled” egg costs for one restaurant operator.

There are also plenty of reasons to reject the bill on substance, aside from its likely effect in raising the price of eggs, one of the protein sources most in reach for poorer families. “By moving to a cage-free operation, the hen mortality rate increases significantly due to more bacterial habitat being introduced in the barn,” said a Maryland Farm Bureau official in his testimony at the hearing last year.

Consumers in Maryland are already free to shop for cage-free eggs, as they are called, and pay a premium in pursuit of their ideals. This bill would commandeer the resources of others — consumers, farmers, restaurateurs — in support of ideals they would not have chosen to pursue.

“In Maryland, Do You Need To Sign A Written Contract To Order A Pizza?”

“If you live in Maryland, unless the [state’s high court] steps in, you might need to sign a contract the next time you buy something over the phone from some place you’ve never shopped before. That would definitely change how you order pizzas.” — Brian Greene of law firm Greene Hurlocker. More here.  

Dan Cox as “Constitutional Attorney”

On January 6th, 2021, Maryland Del. (and now gubernatorial candidate) Dan Cox infamously tweeted “Pence is a traitor.” Brian Griffiths has a few things to say about that in a new Duckpin post this morning, but I wanted to add a further thought of my own.

Dan Cox styles himself a “Constitutional Attorney.” The problem here is not that there’s anything wrong with being a constitutional attorney — quite the contrary! — but that, on the available public evidence, Cox simply isn’t a very good one. His apparent notions of how the U. S. Constitution sets forth the presidential succession process proved embarrassingly wrong, which is why not a single federal judge or state legislative chamber was willing to go along with his side in January 2021, any more than Mike Pence was. His notions of how state and local public health powers fit in with constitutional law, again, are at variance with those of Justices Alito, Thomas and Gorsuch, not just those of the U.S. Court of Appeals for the Fourth Circuit.

If nominated, Cox would continue to run around Maryland making untenable claims about constitutional law, but now as his party’s official standard-bearer. And he would drag the Maryland Republican Party down to ignominious defeat in November.

Del. Dan Cox responds to my Maryland Reporter piece

Del. Daniel Cox reacts to my recent opinion piece with his usual degree of temperateness and accuracy:

“When you’re wrong on both the law and the facts, pound the table.”

On accuracy, for example, he baldly asserts that his constitutional claims failed “based on one point: mootness.” But as I noted in my piece, the Fourth Circuit explicitly carved out only his religion claims to dismiss as moot, while separately upholding as correct the district judge’s dismissal of all the rest of his claims on grounds unrelated to mootness. Does he even read the decisions he loses? (More here and here.)

As for Cox’s vicious invective against me personally, it hardly deserves to be dignified with a response. Seriously, who can read this sort of thing without concluding that this man is utterly unfit for public office?

Cox’s Hogan suit bombs out at Fourth Circuit

I’ve written a new piece at Maryland Reporter on last month’s ruling by a federal appeals court confirming the demise of Del. Dan Cox’s suit against Larry Hogan claiming that the governor’s emergency COVID-19 orders had violated the law and the constitution. A few excerpts:

“Then there were the signs of hasty lawsuit drafting… One subhead in the original filing cited ‘Irreparable Injury To Plaintiffs From Governor Northam’s Gathering Orders,’ comically echoing a suit filed earlier in a different state – Virginia — against Gov. Ralph Northam.”…

“The suit was decked out with rhetorical flights and what you might call ambitious theories of constitutional law, such as that [Gov. Hogan’s pandemic] orders had had the effect of depriving Marylanders of a republican form of government. As the appeals court noted last month, Cox’s subsequent briefing did not go on to argue the merits of many of these theories, leaving Judge Blake free to dismiss them without discussion….

“Del. Cox will undoubtedly continue to work the campaign trail making strongly worded claims about the U.S. and Maryland constitutions as he understands them. Just remember that the actual federal courts keep making it clear that his ideas about the Constitution are not theirs.”

I covered the initial dismissal of Cox’s suit two years ago for the Frederick News-Post.

Marilyn Mosby files FCC complaint against broadcast criticism

Marilyn Mosby, State’s Attorney for Baltimore City, doesn’t like the many critical and investigative stories that WBFF Baltimore has run about her and just sent an astonishing letter to the Federal Communications Commission demanding that its “coverage [be] curtailed and ceased.”  Mosby’s letter really must be seen to be believed: it openly seeks to intimidate and chill speech protected by the First Amendment.

Notes UCLA lawprof and leading free speech law expert Eugene Volokh writes: “I note that none of the letter’s claims of ‘distortion’ are supported by any actual explanation of why the stories are supposedly inconsistent with the facts.” After examining and dismissing as unactionable other charges raised in the Mosby letter, including invasion of her privacy, he adds: “certainly critical news coverage, whether of prosecutors, police officers, or anyone else, can’t be suppressed on the grounds that some tiny fraction of the audience may be so angered by it that they will commit crimes against the people being criticized. I expect the FCC to (rightly) dismiss the complaint.”

It seems to me that Mosby’s letter should be met by a united front of condemnation among free speech advocates, media people (in Maryland especially), and those who track D.A. misconduct. Prosecutors must not be allowed to chill and suppress critical journalism about their doings.