johnny_corlioni

Posted by Kevin

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https://www.loweringthebar.net/?p=46790

This isn’t news exactly, although it was to me when I saw it on Bluesky yesterday and thought it was one of the funniest things I had ever read:

All of these legal tests, however, are quite vague. And the question of whether a particular film or photo has serious artistic value is rather obviously in the eye of the beholder. Hence Justice Potter Stewart’s infamous statement that he may not be able to come up with a coherent legal framework to determine what sort of material should be banned [for obscenity], “but I know it when I see it.”

The result was that, for much of the 1970s, the justices literally had to meet in the basement of the Supreme Court to watch pornographic movies that were the subject of prosecutions, in order to make subjective calls about which movies should be protected by the First Amendment.

Those movie days, as described by Bob Woodward and Scott Armstrong in The Brethren, were thoroughly humiliating experiences. Justice John Marshall Harlan, for example, was nearly blind during many of these screenings, so one of his law clerks had to describe what was happening on the screen to him—often prompting Harlan to [exclaim] “By Jove!” or “extraordinary!”

I haven’t read The Brethren so I don’t know whether that means Harlan was outraged by what he was hearing or just amused that his clerk was being forced to describe it out loud, but I find it hilarious either way. “Great Caesar’s Ghost, young man! I must not have heard you correctly. Please begin again.”

The excerpt is from an article on Vox by Ian Millhiser (sub. req’d) discussing last Friday’s 6-3 ruling in Free Speech Coalition v. Paxton. The opinion—written by Justice Thomas, a fact that itself is amusing for reasons I won’t get into—held that Texas’s law requiring “certain commercial websites” to verify ages doesn’t violate the First Amendment. The law is almost identical to one the Court struck down in 2004, and the Court did not overrule the earlier decision. Justice Thomas spends at least a dozen pages arguing that the legal standard hasn’t changed, though it seems like it shouldn’t take a dozen pages to say that nothing happened. Anyway, Millheiser’s point is that the outcome means judges will again have to get more involved in making determinations such as whether challenged expression “lacks serious literary, artistic, political, or scientific value.” And that, presumably, means more extremely awkward “movie nights.”

Those considering clerkships might want to be sure the relevant justice’s eyesight is good before taking the job, in case this becomes a reality.

The BBC reported last night on the “underground network” of activists there who “risk arrest, jail, and hefty fines by carrying out covert and unlicensed releases of beavers.” That was the third sentence in the story, but the first one to make clear this was in my jurisdiction. The BBC’s excellent headline, “Beaver activists claim they are ‘doing God’s work,'” was certainly promising. The two sentences that followed—

Under cover of darkness, a nocturnal creature emerges from a crate and takes its first tentative steps into a new life in the wild. “It is just essentially God’s work. We’re undoing the damage of hundreds of years ago and bringing back these extraordinary animals,” claimed Ben, who spoke to the BBC on the condition of anonymity.

—were also exciting. But was there a legal angle? That they were doing it “under cover of darkness” suggested the answer was yes, and that third sentence confirmed it.

Because it is, in fact, an offense in the UK to release beavers without a license. This is so because of amendments to the Wildlife and Countryside Act 1981, which, like a variety of federal and state laws in the US, limits various actions in order to protect wildlife. (Not all wildlife, certainly, because some are tasty or fun to shoot at. But most.) Section 14 also seeks to protect the existing wildlife and environment from the “introduction of new species,” and this is the law the beaver activists are accused of violating.

It says this:

14 Introduction of new species etc.

(1) Subject to the provisions of this Part, if any person releases or allows to escape into the wild any animal which—

(a) is of a kind which is not ordinarily resident in and is not a regular visitor to Great Britain in a wild state; or

(b) is included in Part I, IA or IB, of Schedule 9,

he shall be guilty of an offence.

There are actually two Section 14s, one for England and Wales (hereinafter “Britain”), and the other for Scotland, as a result of the United Kingdom being less united these days. The Scottish version applies to any person who “(a) releases, or allows to escape from captivity, any animal (i) to a place outwith its native range; or (ii) of a type the Scottish Ministers, by order, specify; or (b) otherwise causes any animal outwith the control of any person to be at a place outwith its native range….” But this is about British beavers, so further discussion of that is outwith the scope of this article.

So, can one release a beaver in Britain? Well, it seems safe to say beavers don’t “regularly visit” Great Britain, unless maybe they’re sneaking over the Scottish border. But aren’t beavers “ordinarily resident” in Britain to begin with? The answer is … maybe?

They used to be, but according to the BBC they were “hunted to extinction 400 years ago” for their meat, pelts, and a substance they secrete called castoreum. Like most things that get “secreted” (Wikipedia says “exuded,” which isn’t better), castoreum sounds pretty nasty. But it’s used in perfumes and even as a food additive. And according to Wikipedia, “[c]astoreum has been traditionally used in Sweden for flavoring a variety of schnapps commonly referred to as Bäverhojt (lit. ‘beaver shout’),” so now you know that fact. See also “Tales from the Fringe: Beaver Gland Vodka,” Punch (Feb. 6, 2015) (“‘Take a smell of that,’ said Bill Guiles, a retired construction foreman turned full-time mountain man, clapping a piece of dried meat into my hand”; describing the vodka as tasting like “an attic full of musky leather saddles soaked in sweat.”).

Probably it was mostly the pelts.

Whatever the reason, people hunted them to the point that beavers were long believed to be extinct in Britain. Accordingly, the Wildlife and Countryside Act 1981 originally listed them as a regulated “non-native” species. But in 2013, “video evidence emerged” of a wild beaver family living in, I guess ironically, the River Otter in Devon. And eventually, therefore, beavers were moved to the list of regulated native animals—something that was accomplished by, I’m pleased to say, The Beavers (England) Order 2022. That order also added “Beaver, Eurasian” to a list of protected species (“after the entry for ‘Bats, Typical,'” as the order put it).

This means 14(1)(a) doesn’t apply because beavers are now ordinarily resident in Britain again. So one could freely release them—unless they also appear in Schedule 9, in which case 14(1)(b) is a problem. And they do. They are listed in Part IA, along with other regulated native species, all of which seem to be birds. Unfortunately, none are very funny. Funnier species like the Fat Dormouse, Edible Frog, Slipper Limpet, Aesculapian Snake, and False Virginia Creeper are assigned to other lists, though probably not for that reason.

But we do have the beaver, which we now know cannot be released without a license. Yet “Ben” and the other members of the underground beaver-releasing network are flouting this law. Why? Because beavers are great. “[T]hey can reduce risk of flooding,” Ben said, and “mitigate the damage that a drought can bring …. What’s not to like about this?” The National Farmers Union found something, namely the potential damage unlicensed beavers can do to crops and trees, in addition to flooding land with their dams. The NFU had nothing against beavers per se, it just wants the legal process followed.

But that means delay. The article mentions the Cornwall Wildlife Trust, which applied for a license to release beavers at one site. They are very happy with the work their beavers have been doing. “We have seen this site be absolutely transformed,” said a representative the BBC identified as “beaver officer Lauren Jasper.” According to Jasper, the resident beaver family has finished two dams, creating an “amazing wetland area that’s now brimming with wildlife.” But these aren’t the beavers they applied for. During the two years it took to get a license, a pair of independent beavers “turned up” at the site, possibly thanks to the aforementioned conspirators. Beaver Officer Jasper stressed that CWT does not support unlicensed release, notwithstanding the good work their rogue beavers have done.

The beaver releasers don’t want to wait. “Too bureaucratic,” Ben told the BBC. The beavers need to be out there doing their thing. Still, releasing them is illegal, which is why this is happening covertly under cover of darkness. “You don’t want to be caught with a box of beavers in the boot,” said Ben, “so you have to be quite quick. You open the door, do it, and drive away.” The beavers take it from there.

To date, the conspirators have gotten away with it. There have been prosecutions for illegal releases in England, said Detective Inspector Mark Harrison, but so far none involving beavers. “The reason for that is because we’ve got no evidence,” he said, which I guess in England is still a reason not to prosecute someone. One also suspects that the fight against illegal beaver releasing is not the highest priority for law enforcement, but that may change. So if you feel the need to do God’s work, do it at night and do it quick. You don’t want to be caught with a box of beavers in the boot.

The person to the right of the lectern (in the image) does exist, though he probably at least temporarily wished otherwise. That man was the appellant (and plaintiff), who was asking the court to overturn the judgment against him in an employment dispute. And it was him asking … but not literally. He had asked for and received permission to present a video instead of arguing live, but the court seems to have assumed this was because he had a disability. If so it would have been a new disability, because the justice later noted that he had argued before the court in past cases. But it turns out he did not have a disability. He had used “artificial intelligence” to create an “avatar” that would deliver his argument for him. It was better at public speaking, he explained.

He did not inform the court of this innovation beforehand, and it was not pleased with the surprise.

“Is that counsel for the case?” asked Justice Sallie Manzanet-Daniels.

“I generated that,” the appellant admitted. “That’s not a real person.”

“It would have been nice to know that when you made your application,” the justice responded, before (as the AP described it) “yelling across the room for the video to be shut off.”

The appellant then proceeded on behalf of himself.

The issue seems to have been whether the appellant was a party to an employment contract that had an enforceable arbitration provision, and if you are hoping for a good arbitration joke here, or any arbitration joke at all, you hope in vain. As I understand it, the appellant argued that he technically had never signed the contract in question because there was trouble with the company’s “electronic platform.” Or, if he did sign it, someone—or something—manipulated the other information he provided online.

As I recall (I did watch the whole argument, but not today, and I don’t want to watch it again), the employer claimed the man had not been honest when filling out the contract. According to my notes, he told the court (after it dispelled his avatar) that he had “explicitly refused to falsely represent that I had never been convicted of a felony,” but after the dispute arose, “someone or something changed those answers without my knowledge.” (Emphasis added.)

There are about five negatives in there, but I interpret the statement to mean that he has, in fact, been convicted of a felony; that he did not disclose that on the form when asked; and is claiming that someone or something later changed his “yes” to a “no” so he could be falsely accused of lying. If any of that is incorrect, I blame him for using multiple negatives and deny any responsibility.

The court ruled against the appellant on April 17, but sadly the brief decision does not address his attempted use of an avatar. The argument itself was only about 10 minutes long in total, mercifully for everyone. You can watch it here (beginning at 19:22), but I wouldn’t continue after the first 30 seconds or so, unless maybe you think arbitration is funny.