Nine days after a Russian-speaking ransomware syndicate took down the biggest US health care payment processor, pharmacies, health care providers, and patients were still scrambling to fill prescriptions for medicines, many of which are lifesaving.
On Thursday, UnitedHealth Group accused a notorious ransomware gang known both as AlphV and Black Cat of hacking its subsidiary, Optum. Optum provides a nationwide network called Change Healthcare, which allows health care providers to manage customer payments and insurance claims. With no easy way for pharmacies to calculate what costs were covered by insurance companies, many had to turn to alternative services or offline methods.
The most serious incident of its kind
Optum first disclosed on February 21 that its services were down as a result of a “cyber security issue.” Its service has been hamstrung ever since. Shortly before this post went live on Ars, Optum said it had restored Change Healthcare services.
Enlarge / A view of the Centers for Disease Control and Prevention headquarters in Atlanta. (credit: Getty | Nathan Posner)
COVID-19 is becoming more like the flu and, as such, no longer requires its own virus-specific health rules, the Centers for Disease Control and Prevention said Friday alongside the release of a unified "respiratory virus guide."
In a lengthy background document, the agency laid out its rationale for consolidating COVID-19 guidance into general guidance for respiratory viruses—including influenza, RSV, adenoviruses, rhinoviruses, enteroviruses, and others, though specifically not measles. The agency also noted the guidance does not apply to health care settings and outbreak scenarios.
"COVID-19 remains an important public health threat, but it is no longer the emergency that it once was, and its health impacts increasingly resemble those of other respiratory viral illnesses, including influenza and RSV," the agency wrote.
Enlarge / Florida Surgeon General Dr. Joseph Ladapo speaks during a press conference at Neo City Academy in Kissimmee, Florida. (credit: Paul Hennessy/SOPA Images/LightRocket via Getty Images)
A sixth student at Florida's Manatee Bay Elementary School outside of Fort Lauderdale has a confirmed case of measles, health officials announced late Tuesday. However, health officials are not telling unvaccinated students who were potentially exposed to quarantine.
The letter, signed by Ladapo, noted that people with measles can be contagious from four days before the rash develops through four days after the rash appears. And while symptoms often develop between eight to 14 days after exposure, the disease can take 21 days to appear. As such, the normal quarantine period for exposed and unvaccinated people, who are highly susceptible to measles, is 21 days.
Today is Leap Day, meaning that for the first time in four years, it's February 29. That's normally a quirky, astronomical factoid (or a very special birthday for some). But that unique calendar date broke gas station payment systems across New Zealand for much of the day.
As reported by numerous international outlets, self-serve pumps in New Zealand were unable to accept card payments due to a problem with the gas pumps' payment processing software. The New Zealand Herald reported that the outage lasted "more than 10 hours." This effectively shuttered some gas stations, while others had to rely on in-store payments. The outage affected suppliers, including Allied Petroleum, BP, Gull, Waitomo, and Z Energy, and has reportedly been fixed.
In-house payment solutions, such as BP fuel cards and the Waitomo app, reportedly still worked during the outage.
GitHub is struggling to contain an ongoing attack that’s flooding the site with millions of code repositories. These repositories contain obfuscated malware that steals passwords and cryptocurrency from developer devices, researchers said.
The malicious repositories are clones of legitimate ones, making them hard to distinguish to the casual eye. An unknown party has automated a process that forks legitimate repositories, meaning the source code is copied so developers can use it in an independent project that builds on the original one. The result is millions of forks with names identical to the original one that add a payload that’s wrapped under seven layers of obfuscation. To make matters worse, some people, unaware of the malice of these imitators, are forking the forks, which adds to the flood.
Whack-a-mole
“Most of the forked repos are quickly removed by GitHub, which identifies the automation,” Matan Giladi and Gil David, researchers at security firm Apiiro, wrote Wednesday. “However, the automation detection seems to miss many repos, and the ones that were uploaded manually survive. Because the whole attack chain seems to be mostly automated on a large scale, the 1% that survive still amount to thousands of malicious repos.”
For some, having to work from home during the COVID-19 pandemic was stressful. Parents balanced job duties while caring for children. Some struggled to set up a home office and adjust to new tools, like video conferencing. Lonely workdays at home added to social isolation. The line between work and life blurred.
For others, working from home was a boon—comfort, convenience, flexibility, no commuting or rush-hour traffic, no office-environment distractions. When the acute aspects of the pandemic receded, some who at first struggled began to settle into a work-from-home (WFH) groove and appreciated the newfound flexibility.
Then, bosses began calling their employees back to the office. Many made the argument that the return-to-office (RTO) policies and mandates were better for their companies; workers are more productive at the office, and face-to-face interactions promote collaboration, many suggested. But there's little data to support that argument. Pandemic-era productivity is tricky to interpret, given that the crisis disrupted every aspect of life. Research from before the pandemic generally suggested remote work improves worker performance—though it often included workers who volunteered to WFH, potentially biasing the finding.
DCist has been shut down. Its owner, WAMU, broke the bad news to staffers Friday. A banner appeared over DCist’s homepage Friday morning that says that the site “will no longer publish new content. It advises readers to “visit WAMU.org for local news and programming.” DCist’s archive is unavailable to the public at the moment, […]
Gordon Cormier stars as Aang in Avatar: The Last Airbender. | Robert Falconer/Netflix
The hugely anticipated remake delivers on the drama, charm, and spectacle of the original.
Reader, you can relax: They nailed it.
Halfway through the third episode of Netflix’s tremendously anticipated live-action adaptation of Avatar: The Last Airbender, we’re treated to a slickly choreographed fight through a town square between our title character, Aang (Gordon Cormier), and his self-declared nemesis, Prince Zuko (Dallas Liu). This hand-to-hand combat through a colorful, chaotic street scene ends not with a victor but with a different coup de grâce: a cameo from a fan-favorite produce vendor wailing over his ruined cabbages.
Between the rocky history of the franchise and uncertainty about the current production, fans’ anxiety around this Netflix release might well be at an all-time high. The previous attempt to adapt Nickelodeon’s beloved animated show, which ran for three seasons from 2005 to 2008, for a mainstream live-action audience resulted in infamy. M. Night Shyamalan’s 2010 movie sparked a notorious controversy over his decision to cast his main characters with white actors, a move that resulted in years-long protests from fans and contributed to the movie being released to utter ignominy. A gutsy 2012 series expansion following the exploits of Aang’s successor, Korra, renewed the franchise, though it garnered plenty of controversy in its own right for featuring a (gasp!) messy female protagonist. With so many fans still burned by the film, the news of Netflix’s eight-episode live-action adaptation spawned plenty of worry. That wasn’t helped when the original show’s creators, Michael Dante DiMartino and Bryan Konietzko, walked away from the project in 2020, two years after it was first announced. Between their departure and the delays caused by the pandemic, fans wondered whether the show would even be released at all.
The wait, it turns out, has been worth it. Although there are plenty of things to quibble with in successor showrunner Albert Kim’s version of the series, so many things go right that this adaptation of Avatar not only rejuvenates the whole franchise but elevates Netflix’s flagging live-action project.
I am unabashedly Avatar-pilled; I think the Nickelodeon original is one of the greatest TV shows ever made. It pulls off in just three seasons the kind of epic world building and character evolution that shows double its length never manage to achieve. It does so by balancing its family-friendly ethos with a story that deals openly with war, genocide, fascism, trauma, and child abuse.
The result is a show that’s routinely as devastating as it is delightful. Our heroes each grapple with deep personal loss while trying to stop a powerful military force, the Fire Nation, from colonizing the rest of the world. That world is inhabited by fantasy creatures, steampunk cities, and four distinct groups characterized by their relationship to the traditional four elements: besides the Fire Nation (inspired by imperial Japan, China, and other East Asian cultures), there is the Water Tribe (inspired by Inuit and other subarctic cultures), the Earth Kingdom (inspired by imperial Chinese culture), and the Air Nomads (inspired by Buddhist and Hindu cultures in Tibet and parts of Southeast Asia). Among these tribes, people known as benders can control the element they’re associated with.
Only one human, known as the Avatar, has the ability to master all four elements — an ability passed down to them through generations in an unbroken chain of previous avatars. The disappearance of the most recent Avatar, Aang, a century ago has allowed the Fire Nation to lay waste to the other nations, including completely wiping out all the Air Nomads, the tribe into which Aang was born. Aided by Katara and Sokka, two Water Tribe siblings whose mother died in the Fire Nation’s ethnic cleansing and whose father is away at war, he has to make up for lost time and defeat the Fire Lord once and for all. This is heady stuff, especially for a kid’s cartoon. But the show, which won a Peabody for “adding thoughtful substance to [the] genre,” has the writing, creativity, and deep characterization to pull it off.
That’s not to say that Avatar as a franchise and artistic product needs no reckoning with. The show’s status as an artifact of millennial nostalgia has become complicated over time. The degree to which its homage to anime and borrowing of Asian culture veers into cultural appropriation rather than tribute has been a source of debate among fans and critics. So has the degree to which, as a show made by white creators incorporating elements of colonized cultures, it reifies the very thing it attempts to rebuke.
Still, unlike other shows of its time, Avatar has largely managed to hold on to its fans. This is partly because it’s never quite reached the mainstream. (In fact, its lack of a household name complicates things for us: Do we editorialize with the longstanding shorthand Avatar, which was preferred until it was usurped by James Cameron, forever turning it into “Avatar — no, not that one”?)
It’s also partly because Avatar remains one of the most unapologetically antifascist shows ever made. It’s not even generically pacifist — it frequently depicts acts of violent resistance as necessary. For all the time Aang spends proselytizing about things like morals, friendship, and the benefits of riding an air scooter, Avatar never resorts to empty platitudes; its moral and political lessons are usually hard-won.
Complicated? Yes. But that’s also why, in the current political climate, a live-action remake of Avatar can’t afford a single ideological misstep. Its moral clarity about the absolute necessity of resisting genocidal regimes, political isolationism, and governments of conquest matters now more than ever.
At their core, both the original and the new Avatar are travelogues — stories that evolve their characters and their universe through a literal journey through that universe. It’s a format shared by countless works, including fantasies ranging from Gulliver’s Travels to Star Trek. This works on multiple levels, expanding our understanding of the world while also allowing our characters to grow and change through each interaction with a new culture.
The animated Avatar’s three seasons follow three phases of Aang’s journey to master all four elements, after which he can hopefully defeat the Fire Nation. The first season of Netflix’s adaptation faithfully aligns with the first season of the show (“Book One”) — though because it has to truncate much of the action, the first two episodes feature a lot of clunky exposition. The new show also suffers from a tendency to repeat the exposition we’ve already heard, to the extent of showing flashbacks to moments that happened earlier in the same episode. At times, the combination of overexposition and overmoralizing turns hokey.
Still, the writing is stronger and more enjoyable than these choices imply. Netflix’s Avatar preserves the original’s plot, and its changes work to tighten the narrative, deepen characterization, and strengthen the impact of heart-clenching moments in the storyline. Crucially, it retains the balance of the original: depth and darkness, levity and light.
The production design is opulent and rich with detail, carefully incorporating Avatar’s cultural influences, from architecture to costuming. The CGI is primarily an unobtrusive enhancement rather than a distraction (Appa the sky bison being a disappointing exception). The action is backed by a lush, beautiful score, and the fight scenes are excellent. The artificial nature of the CGI fight scenes was one of the things that really torpedoed Shyamalan’s version; here, however, particularly during all of the waterbending fights, the CGI and the live-action choreography integrate seamlessly, generating visually spectacular climactic battle sequences.
Courtesy of Netlix
Paul Sun-Hyung Lee and Dallas Liu as General Iroh and his nephew, Prince Zuko.
All of this bolsters the impeccable casting decisions that went into creating this ensemble, which features cameos from a host of geek faves like Danny Pudi, Arden Cho, George Takei, and Osric Chau but never feels like pandering or stunt casting. Overall, this Avatar manages to avoid succumbing to “the Netflix look” and instead serves as an exemplar of how to cast and visually adapt animated characters without looking ridiculous or feeling fake.
The standouts in this regard are exactly who they should be: Zuko, the willful, stubborn Fire Nation prince in exile, and his uncle, General Iroh (The Mandalorian’s Paul Sun-Hyung Lee). No Avatar adaptation can succeed unless the audience invests in this relationship; luckily for us, Dallas Liu exudes just the right mix of brashness and vulnerability and restless energy from the first moment he’s onscreen, while Lee unveils Iroh’s layered complexity one careful degree at a time. If one or the other doesn’t break your heart individually, the two of them together definitely will.
Kiawentiio, who plays our waterbending heroine Katara, is so much better than everyone around her for most of her time onscreen that she inadvertently highlights how little attention her character gets. Book One focuses on developing her much less interesting older brother, Sokka. In the hands of actor Ian Ousley, who plays him with precise smarm and hamminess, Sokka is the epitome of the wisecracking sidekick: You either love him or hate him. Given all the material this season has to cover, the time we spend watching him chase cute girls and debate what career track he should be on feels like filler — especially since, by contrast, Katara is dealing (mostly offscreen) with the trauma of having watched her mother be burned alive. By the end, however, Katara gets her moment, with Sokka in full support.
Eclipsed by so many bright and colorful side characters and a plot that gives his archnemesis the centerpiece hero’s journey, Aang has never been the most compelling part of his own story. For most of Book One, he’s still a naive 12-year-old who spends most of his time fleeing Fire Nation soldiers instead of learning to bend elements. Here, Gordon Cormier does his best, but he’s usually saddled with a mouthful of either moralism or exposition. The show also suffers from a failure to integrate Aang into the trio; we spend far more time hearing Aang and Katara talk at each other about the importance of friendship than we do watching them actually become friends.
Because so many of these weaknesses are imposed on the series by the constraints of the eight-episode Netflix format, it’s worth asking whether we even need more Avatar. Can this shortening really do justice to the original’s complex themes?
For me, so far, the answer is yes. It turns out I did need more from this story. I did need to see Cormier’s face collapsing in grief and love when he reunites briefly with the monk who raised him. I did need the show to retcon a tiny offscreen romance in order to show us that the conservative earthbending city of Omashu was quite literally built on a lesbian relationship. I did need Zuko’s soldiers dramatically saluting him because they’ve finally realized he’s had their backs all along. I definitely needed to see Katara ice-surf during a battle to prove her worth as a bender.
Is it perfect? Nah. But it might be a perfect way to rekindle your love for Avatar — and remind the world why it deserved to be remembered in the first place.
Living with food allergies can be a fraught existence. There is no cure, and the standard management is to be ever vigilant of everything you eat and have an emergency shot of epinephrine constantly handy in case an accidental ingestion leads to a swift, life-threatening reaction. But, for the millions of people in the US who live with such allergies, a new drug may dull the threat.
On Friday, the Food and Drug Administration approved the antibody drug omalizumab (brand name Xolair) as an injection to lessen allergic reactions to foods in people ages 1 and up. In a trial of 168 children and adults with multiple food allergies, participants who received shots of omalizumab for 16 to 20 weeks were much more likely to tolerate a test dose of allergy-inducing foods at the end than those who received a placebo.
Omalizumab—which was previously approved to treat asthma, hives, and nasal polyps—works by binding to a class of antibodies in the body called immunoglobulin E (IgE) that are specifically involved in allergic responses. The monoclonal antibody drug binds IgE, blocking it from binding to its target receptor, thus preventing it from triggering the immune responses that lead to allergy symptoms.
After months of resisting, Air Canada was forced to give a partial refund to a grieving passenger who was misled by an airline chatbot inaccurately explaining the airline's bereavement travel policy.
On the day Jake Moffatt's grandmother died, Moffat immediately visited Air Canada's website to book a flight from Vancouver to Toronto. Unsure of how Air Canada's bereavement rates worked, Moffatt asked Air Canada's chatbot to explain.
The chatbot provided inaccurate information, encouraging Moffatt to book a flight immediately and then request a refund within 90 days. In reality, Air Canada's policy explicitly stated that the airline will not provide refunds for bereavement travel after the flight is booked. Moffatt dutifully attempted to follow the chatbot's advice and request a refund but was shocked that the request was rejected.
Enlarge / A woman with Long COVID who is completely bedridden, requiring the use of a wheelchair to move between rooms of her home. (credit: Getty | Rhiannon Adam)
Over four years after SARS-CoV-2's debut, researchers still struggle to understand long COVID, including the ostensibly simple question of how many people have it. Estimates for its prevalence vary widely, based on different study methods and definitions of the condition. Now, for the first time, the Centers for Disease Control and Prevention has attempted to estimate its prevalence among adults in each US state and territory. The results again show a wide range of prevalence estimates while revealing the states that were hardest hit as well as those that seem relatively spared.
Overall, the CDC found that seven states in the South, West, and Midwest had the highest prevalence of long COVID in the country, between 8.9 percent and 10.6 percent: Alabama, Montana, North Dakota, Oklahoma, Tennessee, Wyoming, and, the state with the highest prevalence of 10.6 percent, West Virginia. The results are published today in the CDC's Morbidity and Mortality Weekly Report.
On the other end of the spectrum, New England states, Washington, and Oregon had lower prevalence rates, between 3.7 percent and 5.3 percent. The lowest rate was seen in the US Virgin Islands with 1.9 percent. Washington, DC, and Guam had ranges between 1.9 percent and 3.6 percent.
Construction of the new Twinbrook Quarter development has made significant progress in the past couple of months on Rockville Pike. But the tenant everyone is waiting for — an 80,0000-square-foot Wegmans grocery store — still hasn’t begun its buildout. A spokesman tells us Wegmans is looking to start construction this spring, with a projected opening in 2025. The uber-popular grocery store will be the jewel of Twinbrook Quarter, a sprawling retail/residential/office project that will ultimately encompass 18 acres.
On a November day in 2021, Tony Lewis Sr. walked to a phone bank inside the federal correctional institution in Cumberland, Maryland, and placed a call to his son. Over the prior three decades, these conversations had become the highlight of his daily routine, an essential 15-minute escape from the austerity of prison. But on […]
On Tuesday, the United States Patent and Trademark Office (USPTO) published guidance on inventorship for AI-assisted inventions, clarifying that while AI systems can play a role in the creative process, only natural persons (human beings) who make significant contributions to the conception of an invention can be named as inventors. It also rules out using AI models to churn out patent ideas without significant human input.
The USPTO says this position is supported by "the statutes, court decisions, and numerous policy considerations," including the Executive Order on AI issued by President Biden. We've previously covered attempts, which have been repeatedly rejected by US courts, by Dr. Stephen Thaler to have an AI program called "DABUS" named as the inventor on a US patent (a process begun in 2019).
A US district judge in California has largely sided with OpenAI, dismissing the majority of claims raised by authors alleging that large language models powering ChatGPT were illegally trained on pirated copies of their books without their permission.
By allegedly repackaging original works as ChatGPT outputs, authors alleged, OpenAI's most popular chatbot was just a high-tech "grift" that seemingly violated copyright laws, as well as state laws preventing unfair business practices and unjust enrichment.
According to judge Araceli Martínez-Olguín, authors behind three separate lawsuits—including Sarah Silverman, Michael Chabon, and Paul Tremblay—have failed to provide evidence supporting any of their claims except for direct copyright infringement.
A piece of GOOD Meat’s cell-cultivated chicken cooks on a grill at the company’s California office in July 2023. | Justin Sullivan/Getty Images
Gov. Ron DeSantis’s ban on cell-cultivated, “lab-grown” meat is about protecting Big Ag.
On Wednesday, Florida became the first US state to ban the production and sale of lab-grown, or “cell-cultivated” meat.
“Take your fake lab-grown meat elsewhere,” Gov. Ron DeSantis said before signing SB 1084 into law. “We’re not doing that in the state of Florida.”
Alabama is on the cusp of passing similar legislation.
Cell-cultivated meat is different from products made by companies like Impossible Foods that use plant ingredients to mimic meat. Instead, cell-cultivated meat is real meat, but made without slaughtering an animal. It’s produced by taking a small sample of animal cells and feeding them a mix of amino acids, sugars, salts, vitamins, and other ingredients for a few weeks until it grows into edible meat.
Justin Sullivan/Getty Images
Chef Nate Park slices a piece of GOOD Meat’s cell-cultivated chicken.
The Florida law’slead sponsor, Republican state Rep. Danny Alvarez, had claimed the novel technology’s “unknowns are so great,” despite a multiyear review from the US Agriculture Department and US Food and Drug Administration that deemed products from two cell-cultivated meat startups safe to eat.
Florida state Rep. Tyler Sirois, another Republican who introduced a similar bill late last year, stated a different — and perhaps more honest — motivation for banning cell-cultivated meat: to protect the state’s farmers from competition. “Farming and cattle are incredibly important industries to Florida,” Sirois said in an interview with Politico in November.
Florida state Rep. Dean Black, a Republican cattle rancher, said, “Cultured meat is made by man. Real meat is made by God himself.”
What’s happening in Florida and Alabama is part of a broader political strategy to hinder the nascent cell-cultivated meat industry. Earlier this year, lawmakers in Arizona introduced a similar ban, with one Republican supporter saying, “We want to protect our cattle and our ranches.” One of the co-sponsors is a rancher himself.
Meanwhile,policymakers in other states have advocated for similar legislation, including West Virginia, Kentucky, and Tennessee, where violators would have to pay a $1 million fine.
Federal lawmakers in heavy farming states, mostly Republicans but also some Democrats, are also putting up roadblocks to cell-cultivated meat with the support of the conventional meat industry.
In late January, US Sens. Jon Tester (D-MT) and Mike Rounds (R-SD) announced a federal bill to ban cell-cultivated meat in school cafeterias. “Tester champions Montana’s ranchers,” reads part of the headline of Tester and Rounds’s press release about the legislation, which has been endorsed by beef trade groups.
Days later, a bipartisan group of farm-state members of Congressintroduced legislation — also endorsed by a number of meat trade groups — in both chambers that would require any cell-cultivated or plant-based meat product to be labeled as “imitation” meat or poultry.
Such protectionism runs counter to the routine platitudes that elected officials — especially those on the right — typically espouse about competitive free markets, regulation, and innovation. DeSantis has boasted that Florida ranks first in the nation in entrepreneurship, yet hejust signed a bill into law that will stifle entrepreneurship.
But the policy trend also rings hollow when you consider that cell-cultivated meat isn’t even available for sale.
Cell-cultivated meat has a long way to commercial viability (and it may not get there)
Last summer, two cell-cultivated meat startups made their product available in extremely limited quantities at a couple of high-end restaurants — one in San Francisco, the other in Washington, DC — for less than a year. Both have been phased out.
While plenty of the startups have demonstrated proofs of concept, it’s far from certain they’ll be able to scale and compete with factory-farmed meat; their products certainly won’t be showing up in school cafeterias anytime soon. Its advocates argue the field needs government funding, like the renewable energy and electric vehicle industries have received, to advance its research and development.
Jeff Chiu/AP Photo
A scientist works in a cellular agriculture lab at the headquarters of GOOD Meat in Alameda, California, in June 2023.
On the surface, bills aiming to ban cell-cultivated meat could be waved away as mere political theater, a ratcheting up of the culture war by attacking alternatives to factory-farmed meat as a cheap way to own the libs during an election year.
But there’s something more troubling at play here. The proposed bans are part of a longtime strategy by the politically powerful agribusiness lobby and its allies in Congress and statehouses to further entrench factory farming as America’s dominant source of protein.
The political engine to protect factory farming, explained
Cell-cultivated meat is the latest flashpoint in a long-running fight over the future of protein; meat and dairy analogues made from plants, like oat milk and pea-based Beyond burgers, have already been targeted by hostile politicians.
Over the last decade, as these products entered the mainstream, lawmakers in around 30 states have introduced legislation to restrict how companies can label them, and over a dozen have passed. Some laws went so far as to ban companies from using words like “burger” and “milk” even when their labels already made clear that the products were free of animal-derived ingredients, creating a costly, complicated patchwork of labeling requirements.
The bipartisan federal DAIRY PRIDE Act — short for “The Defending Against Imitations and Replacements of Yogurt, milk, and cheese to Promote Regular Intake of Dairy Everyday Act” — would codify these restrictions nationwide for plant-based dairy products.
The proliferation of state restrictions has led some companies to use awkward descriptors that probably confuse more than clarify, like Trader Joe’s almond milk, which it calls “Almond Beverage.”
Some of the companies making these products have brought First Amendment challenges to push back. Louisiana and Mississippi each softened their regulations after lawsuits, and in 2021, a California judge ruled that the plant-based dairy company Miyoko’s Creamery could use terms like “butter” and “cheese” after the state’s agriculture department tried to prohibit it from doing so. In 2022, a federal judge ruled Arkansas’s labeling law unconstitutional. Challenges to other state laws are ongoing, but the bills keep coming: This year, nearly 10 states have consideredrestrictive labeling provisions.
If lawmakers are really concerned with deceptive labeling, they may want to focus their efforts in the meat and dairy aisle, where consumers have long been misled by warm and fuzzy terms like “sustainable” and “humanely raised,” both of which have no legal definition. Some terms that are defined and verifiable, like “free range,” often don’t meet consumers’ expectations.
The cell-cultivated meat bans and the plant-based labeling restrictions represent one side of agribusiness’s policy coin: proactive measures to weaken upstarts that could one day threaten its bottom line. The other side of that coin is sweeping deregulation that has made meat abundant and cheap, but at terrible cost to the environment, workers, and animals.
Agriculture is exempt from the federal Animal Welfare Act, and most farms are exempt from the Clean Water Act and Clean Air Act, loopholes that have resulted in awful conditions for animals and widespread pollution.
Edwin Remsburg/VW Pics via Getty Images
Chickens in cages at a conventional egg farm.
Every state has a “right to farm” law, aimed at preventing rural Americans from suing factory farms for pollution, odor, and other nuisances. And about 10 states have passed “ag gag” laws, which make it a crime to document and investigate animal abuse on farms. Many have been struck down as unconstitutional, but some remain in place.
The sad irony of all the chest-thumping over meat alternatives is that farmers do face many real threats, like a changing climate that makes harvests less predictable and corporate consolidation that has put the majority of America’s meat supply in the hands of a few massive companies that hollow out rural economies and treat some of the farmers who contract for them like serfs.
Addressing these would take serious political courage, but it’s much easier to rile up the base by banning a perceived threat than taking on a real one.
Update, May 1, 2:10 pm: This story was originally published on February 14 and has been updated with news of Gov. Ron DeSantis signing Florida’s ban on cell-cultivated meat into law.
You’ve probably heard various renditions of The Star-Spangled Banner, and sometimes singers put a little extra something in the anthem. A bit of flourish. Some attitude. For The Pudding, Jan Diehm and Michelle McGhee quantified that extra something into what they’ve dubbed a Diva Score.
Out of the 138 versions they scored, the highest belong to Chaka Khan at the 2020 NBA All-Star game and Patti Labelle at the 2008 World Series.
For NYT Opinion, Nate Silver compares consumer confidence between two surveys. The University of Michigan’s Index of Consumer Sentiment focuses more on personal spending, whereas the Conference Board’s Consumer Confidence Survey. Usually, the estimates follow each other, but there’s been a split the past few years, as shown in the difference chart above.
A 268-unit mixed-income, mixed-use, new construction project known as The Laureate in Montgomery County, Maryland. | Montgomery County’s Housing Opportunities Commission
Local governments are trying a new way to address the housing crisis.
Quietly and with little fanfare, the idea of building new publicly owned housing for people across the income spectrum has advanced in the United States.
Governments have successfully addressed housing shortages through publicly developed housing in places like Vienna, Finland, and Singapore in the past, but these examples have typically inspired little attention in the US — which has more restrictive welfare policies and a bias toward private homeownership.
Then one US community started exploring social housing with a markedly more American twist: Leaders in Montgomery County, Maryland — a suburban region just outside Washington, DC, with more than 1 million residents — said they could increase their local housing supply not by ramping up European-style welfare subsidies but through essentially intervening in the traditional capitalist bidding process. Government, when it wants to, can make attractive bids.
Now, with an acute nationwide housing shortage, and declining home construction due to high interest rates, the idea is spreading, and more local officials have been moving forward with plans to create publicly owned housing. They are very clear about not calling it “public housing”: To help differentiate these projects from the typical stigmatized, income-restricted, and underfunded model, leaders have coalesced around calling the mixed-income idea “social housing” produced by “public developers.”
“What I like about what we’re doing is all we have effectively done is commandeered the private American real estate model,” Zachary Marks, the chief real estate officer for Montgomery County’s housing authority, told me in 2022. “We’re replacing the investor dudes from Wall Street, the big money from Dallas.”
By offering private companies more favorable financing terms, Montgomery County hoped to move forward with new construction that they’d own for as long as they liked. They had plans to build thousands of publicly owned mixed-income apartments by leveraging relatively small amounts of public money to create a revolving fund that could finance short-term construction costs. Eighteen months ago, this “revolving fund” plan was still mostly just on paper; no one lived in any of these units, and whether people would even want to live in publicly owned housing was still an open question.
Answers have since emerged: The first Montgomery County project opened in April 2023, a 268-unit apartment building called The Laureate, and tenants quickly came to rent. It’s not the kind of public housing most Americans are familiar with: It has a sleek fitness center, multiple gathering spaces, and a courtyard pool. “We’re 97 percent leased today, and it’s just been incredibly successful and happened so fast,” Marks said.
Encouraged by the positive response, Montgomery County has been barreling forward with other social housing projects, like a 463-unit complex that will house both seniors and families, and another 415-unit building across from The Laureate set to break ground in October. While construction has lagged nationwide as the Federal Reserve worked to rein in inflation, private developers in Montgomery County have been able to partner with the local government, enticed by their more affordable financing options.
As word started to get around, city leaders elsewhere began reaching out, curious to learn about this model and whether it could help their own housing woes. Montgomery County was getting so many inquiries, they decided to host a convening in early November, inviting other officials — from places like New York City, Boston, Atlanta, and Chicago —to tour The Laureate and talk collectively about the public developer idea. Roughly 60people were in attendance.
“I am very bought into the Zachary Marks’s line that there is every reason for cities to be building up a balance sheet of real estate equity and we should be capturing that and using it to reinvest in public goods,” said one municipal housing leader who attended the Montgomery County conference and spoke on the condition of anonymity because they were not authorized to talk to the media. “That’s the vision — and you can just describe it in so many ways. You can say we’re socializing real estate value for public use, or you can describe it as we’re doing public-private partnerships to invest in our communities.”
Paul Williams, who leads the Center for Public Enterprise, a think tank supportive of social housing, said growing interest in the public developer model has even led to new conversations with the Department of Housing and Urban Development. “Public agencies are clearly hungry for tools that allow them to produce a lot more housing, and in the past year and a half we’ve gone from working with Montgomery County and Rhode Island to establishing a working group with a few dozen state and municipal housing agencies who come to our regular meetings,” he told Vox. “That’s gotten HUD’s attention, and we’re now talking with them about ways the federal government can support this kind of innovation.”
Atlanta’s leaders are on track to implement the Montgomery County model
Perhaps no city has run as fast with the Montgomery County idea than Atlanta, Georgia. The city’s mayor, Andre Dickens, took office in early 2022 and set an ambitious goal to build or preserve 20,000 affordable housing units within his eight-year term. The Dickens administration wanted to find ways to do this that didn’t depend on the whims of Republicans in the state legislature or federal government.
One of the key strategies Dickens’s team has embraced is making use of property the city already owns, such as vacant land. “We did not have a good sense of what we had, what we did not have, and what was the best use for any of it,” said Josh Humphries, a senior housing adviser to the mayor.
The Dickens administration convened an “affordable housing strike force” to get a better understanding of the city’s inventory and started studying affordable housing models around the world, including social housing in Vienna and Copenhagen. Atlanta leaders also participated in a national program called Putting Assets to Work and learned about the efforts in Montgomery County.
Humphries said what “really sealed the deal” on social housing for them was simply the scarcity of alternative tools to build affordable housing, since they were already exhausting all the available funding they had from the federal Low-Income Housing Tax Credit (LIHTC).
By the summer of 2023, armed with money from a city housing bond, the Atlanta Housing Authority’s board of commissioners voted to create a new nonprofit that would help build mixed-income public housing for the city. Leaders estimate it could lead to 800 new units by 2029.
Atlanta’s first bid for private-market developers to construct social housing went out last month, and Humphries says they’re excited about how their new financing could spark new partnerships. “The combination of tools that we plan to use that are similar to what they’re doing in Montgomery County, like being able to decrease property taxes and have better interest rates in your financing, is very enviable,” Humphries said. “It has allowed us to have conversations with market-rate developers who maybe otherwise wouldn’t be interested because they haven’t been able to figure out how to make their other [private-sector] projects work.”
Boston wants to move forward with social housing, and Massachusetts might help
Since 2017, Boston has been working to redevelop some of its existing public housing projects by converting them into denser, mixed-income housing. Kenzie Bok, who was tapped by the city’s progressive mayor last spring to lead the Boston Housing Authority, said that existing work helped pave the way for leaders to more quickly embrace the Montgomery County model. As in Atlanta, Bok and her colleagues have been trying to figure out how to build more affordable housing when they have no more federal tax credits available.
“I think everyone in the affordable housing community is looking around and saying, ‘Gee, we have this [low-income housing tax credit] engine for development but it doesn’t have capacity to meet the level we need,’” Bok told me. And while the federal government could increase the tax credit volume, that requires action in Washington, DC, that for years has failed to materialize.
Bok grew interested in the Montgomery County model since it seemed to offer a way for her city to augment its affordable housing production without Congress. Bok was also intrigued by the potential of the revolving fund to spur more market-rate construction in Boston, which has slowed not only because of rising interest rates but also because institutional investors typically demand such high rates of return.
“The default assumption is that affordable units are hard to build and market-rate ones will build themselves from a profit-motive perspective,” Bok said. “In fact, we have a situation now where ironically it’s often affordable LIHTC units that can get built right now and other projects stall out.”
Bok and her colleagues realized it’s not that mixed-income projects don’t generate profits — those profits just aren’t 20 percent or higher. Mixed-income affordable housing wouldn’t need to be produced at a loss, Boston leaders concluded, they just might not be tantalizing to certain aggressive real estate investors. By creating a revolving fund and leveraging public land to offer more affordable financing terms, Boston officials realized they could help generate more housing — both affordable and market-rate.
In January, in her State of the City address, Boston Mayor Michelle Wu pledged to grow the city’s supply of public housing units by about 30 percent in the next 10 years, with publicly owned mixed-income housing being one way to get there.
To help move things forward, state lawmakers are also exploring the idea. This past fall, Massachusetts’s governor put placeholder language in a draft housing bond bill to support social housing and a revolving fund. The specifics are likely going to be hashed out later this spring, but the governor’s bond bill is widely expected to pass.
In Rhode Island, too, state-level interest in supporting the notion of publicly developed affordable housing has grown. Stefan Pryor, the state’s secretary of housing, attended the Montgomery County, Maryland conference in November, and Rhode Island recently announced it would be contracting with the Furman Center, a prominent housing think tank at New York University, to study models of social housing. “We look forward to the study’s observations and findings,” Pryor told Vox.
Can mixed-income housing help those most in need?
Lawmakers intrigued by what Montgomery County is doing praise the fact that publicly owned mixed-income housing units theoretically offer affordable units to their communities forever, unlike affordable housing financed by the Low-Income Housing Tax Credit that can convert into market-rate rentals after 15 years. Leaders also like that after some initial upfront investment, the publicly owned projects start to pay for themselves, even delivering economic returns to the city down the line.
Charles Arrington
Inside an apartment unit at The Laureate complex in Montgomery County.
But while housing complexes like The Laureate can offer real relief to struggling middle-class tenants — a quarter of The Laureate’s units are restricted to those earning 50 percent or lessof the area median income — an outstanding question is whether the social housing model could also help those who are lower-income, who might require even more deeply subsidized housing.
In Washington, DC, some lawmakers have been exploring the social housing idea, and one progressive council member introduced a bill calling to support mixed-income housing accessible to those making 30 percent or less of the area’s median income. But critics of the bill say that the rents of those living in nonsubsidized units would have to be so high to make that rental math work.
A housing official speaking on the condition of anonymity told me they think it’s okay if the social housing model can only really work to support more middle-class tenants in neighborhoods that charge higher rents because leaders still have financing tools to build more deeply affordable housing in lower-cost areas. In other words, social housing can grow the overall pie of affordable units throughout a city.
Other leaders, like in Boston and Atlanta, told me they’re exploring how they could “layer” the mixed-income social housing model with additional subsidies to make them more accessible to lower-income renters.
Marks, from Montgomery County, knows there’s still a lot of stigma and reservations about American public housing, which many perceive as being ugly, dirty, or unsafe. Few understand that many of the woes of existing public housing in the US have had to do with rules Congress passed nearly 100 years ago, such as restricting the housing to only the very poor. Besides getting his message out, Marks said he likes to just have people come see for themselves what’s being done.
“The temperature immediately comes down when people can walk around, see how attractive it is, how it’s clearly a high-quality community with nice apartments,” he said. “It’s why getting proof of concept is so important.”
When big pharmaceutical companies are confronted over their exorbitant pricing of prescription drugs in the US, they often retreat to two well-worn arguments: One, that the high drug prices cover costs of researching and developing new drugs, a risky and expensive endeavor, and two, that middle managers—pharmacy benefit managers (PBMs), to be specific—are actually the ones price gouging Americans.
Both of these arguments faced substantial blows in a hearing Thursday held by the Senate Committee on Health, Education, Labor and Pensions, chaired by Sen. Bernie Sanders (I-Vt.). In fact, pharmaceutical companies are spending billions of dollars more on lavish executive compensation, dividends, and stock buyouts than they spend on research and development (R&D) for new drugs, Sanders pointed out. "In other words, these companies are spending more to enrich their own stockholders and CEOs than they are in finding new cures and new treatments," he said.
And, while PBMs certainly contribute to America's uniquely astronomical drug pricing, their profiteering accounts for a small fraction of the massive drug market, Sanders and an expert panelist noted. PBMs work as shadowy middle managers between drugmakers, insurers, and pharmacies, setting drug formularies and consumer prices, and negotiating rebates and discounts behind the scenes. Though PBMs practices contribute to overall costs, they pale compared to pharmaceutical profits.
Death is coming for the old-school gas furnace—and its killer is the humble heat pump. They’re already outselling gas furnaces in the US, and now a coalition of states has signed an agreement to supercharge the gas-to-electric transition by making it as cheap and easy as possible for their residents to switch.
Nine states have signed a memorandum of understanding that says that heat pumps should make up at least 65 percent of residential heating, air conditioning, and water-heating shipments by 2030. (“Shipments” here means systems manufactured, a proxy for how many are actually sold.) By 2040, these states—California, Colorado, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, and Rhode Island—are aiming for 90 percent of those shipments to be heat pumps.
Enlarge / Whether the toilet lid is up or down doesn't make much difference in the spread of airborne bacterial and viral particles. (credit: Peter Dazeley)
File this one under "Studies We Wish Had Let Us Remain Ignorant." Scientists at the University of Arizona decided to investigate whether closing the toilet lid before flushing reduces cross-contamination of bathroom surfaces by airborne bacterial and viral particles via "toilet plumes." The bad news is that putting a lid on it doesn't result in any substantial reduction in contamination, according to their recent paper published in the American Journal of Infection Control. The good news: Adding a disinfectant to the toilet bowl before flushing and using disinfectant dispensers in the tank significantly reduce cross-contamination.
Regarding toilet plumes, we're not just talking about large water droplets that splatter when a toilet is flushed. Even smaller droplets can form and be spread into the surrounding air, potentially carrying bacteria like E. coli or a virus (e.g., norovirus) if an infected person has previously used said toilet. Pathogens can linger in the bowl even after repeated flushes, just waiting for their chance to launch into the air and spread disease. That's because larger droplets, in particular, can settle on surfaces before they dry, while smaller ones travel farther on natural air currents.
The first experiments examining whether toilet plumes contained contaminated particles were done in the 1950s, and the notion that disease could be spread this way was popularized in a 1975 study. In 2022, physicists and engineers at the University of Colorado, Boulder, managed to visualize toilet plumes of tiny airborne particles ejected from toilets during a flush using a combination of green lasers and cameras. It made for some pretty vivid video footage:
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Reeling from one of the most catastrophic recalls in decades, Philips Respironics said it will stop selling sleep apnea machines and other respiratory devices in the United States under a settlement with the federal government that will all but end the company’s reign as one of the top makers of breathing machines in the country.
The agreement, announced by Philips early Monday, comes more than two years after the company pulled millions of its popular breathing devices off the shelves after admitting that an industrial foam fitted in the machines to reduce noise could break apart and release potentially toxic particles and fumes into the masks worn by patients.
It could be years before Philips can resume sales of the devices, made in two factories outside Pittsburgh. The company said all the conditions of the multiyear consent decree — negotiated in the wake of the recall with the Department of Justice on behalf of the Food and Drug Administration — must be met first.
The move by a company that aggressively promoted its machines in ad campaigns and health conferences — in one case with the help of an Elvis impersonator — follows relentless criticism about the safety of the machines.
A ProPublica and Pittsburgh Post-Gazette investigation found the company held back thousands of complaints about the crumbling foam for more than a decade before warning customers about the dangers. Those using the machines included some of the most fragile people in the country, including infants, the elderly, veterans and patients with chronic conditions.
“It’s about time,” said Richard Callender, a former mayor in Pennsylvania who spent years using one of the recalled machines. “How many people have to suffer and get sick and die?”
Philips said the agreement includes other requirements the company must meet before it can start selling the machines again, including the marquee DreamStation 2, a continuous positive airway pressure, or CPAP, device heralded by Philips when it was unveiled in 2021 for the treatment of sleep apnea. The settlement, which is still being finalized, has to be approved by a court and has not yet been released by the government.
The FDA said it could not comment until the agreement is finalized and filed with the court. The DOJ could not be immediately reached for comment.
It remains unclear how the halt in sales will impact patients and doctors. The company’s U.S. market share for sleep apnea devices in 2020 was about 37% — behind only one competitor, medical device maker ResMed, according to an analysis by iData Research. Philips has dominated the market in ventilator sales, the data shows.
One global market report on Monday referred to the agreement as “very punitive” and noted, “It will be very difficult for Philips to recover its U.S Respironics market position.”
After the announcement, the company’s stock prices plunged by 7% in early trading.
Philips did not address the safety of the recalled devices in its announcement, but the company has previously said that new testing shows the foam causes no “appreciable harm” to patients. The FDA has challenged those claims, saying the company’s tests are not “adequate.”
The settlement comes just weeks after federal lawmakers called for an immediate criminal probe of Philips by the DOJ, and the Government Accountability Office, the investigative arm of Congress, said it will launch an inquiry of the FDA’s oversight of medical device recalls for the first time in years.
ProPublica and the Post-Gazette identified thousands of reported cases of cancer, respiratory illnesses and liver and kidney conditions among users of the recalled machines, as well as more than 370 reports of deaths.
The news organizations found that scientists inside Philips repeatedly raised concerns about the foam and that the company’s own testing called into question its safety claims.
The news organizations also reported that a new and different foam used in the DreamStation 2 and millions of other replacement machines sent out by Philips in the wake of the recall was found to emit dangerous chemicals as well, including formaldehyde, a known carcinogen. The company has said the new foam is safe, but scientists involved in the testing have again raised alarms and the FDA has said additional safety tests are still needed.
In its announcement, the company said it would provide ongoing service and parts for machines already in the hands of doctors and patients and continue selling its devices outside the United States subject to requirements in the agreement.
“Resolving the consequences of the Respironics recall for our patients and customers is a key focus area and I acknowledge and apologize for the distress and concern caused,” said Roy Jakobs, CEO of parent company Royal Philips. “We are fully committed to complying with the consent decree, which is an important step and provides a clear path forward.”
The announcement was the latest in a series of developments at Philips since the recall prompted a global health emergency that sent millions of patients scrambling to find replacement machines and assess the risk of long term exposure.
Philips has discontinued some of the recalled devices, including ventilators and, just last week, the widely promoted DreamStation Go, a portable CPAP.
In an online update and email to U.S. customers, Philips said the decision to pull the devices off the market in the United States was a “strategic” choice that “streamlined” its portfolio. The email reignited anger and frustration among patients and doctors.
“They used to be one of the most respected industry leaders,” said Dr. Radhika Breaden, a sleep medicine specialist in Oregon. “They have lost the trust of many of our sleep patients and many professionals in the sleep field.”
Michael Korsh of the Pittsburgh Post-Gazette contributed reporting.
Update, Jan. 29, 2024: This story has been updated with additional information provided by the FDA.
For the second time in just over a year, Popeyes has mysteriously gone dark for several weeks at Westfield Montgomery mall. Last time, when the restaurant finally reopened, employees vaguely blamed the closing on “the kitchen” and “the fryer.” This time, we’re hearing the departure will be permanent. Meanwhile: Just around the corner, another New Orleans-style fast food chain is on the way to the Dining Terrace. Kelly’s Cajun Grill, specializing in bourbon chicken, is taking over the space next to Panda Express.
Step 1: get the phone as close to your face as possible. [credit:
Google ]
Most Pixel 8 Pro owners have probably forgotten that there's an infrared temperature sensor on the back of the phone next to the LED camera flash. But it's still there, and almost four months after launch, it's getting a new feature: body temperature measurement. The four-month hold-up is because body temperature sensors are regulated as medical devices, so Google needed FDA approval to enable the feature. The company has a blog post detailing the feature, which says: "In clinical trials, our software algorithm was able to calculate body temperature in the range of 96.9°F–104°F (36.1°C–40°C) to within ±0.3°C when compared with an FDA-cleared temporal artery thermometer. In layman's terms, this means the Pixel body temperature feature is about as accurate as other temporal artery thermometers." The feature only works in the US.
Like everything about the Pixel 8 Pro's temperature sensor, the basic feature idea sounds fine (if not several years late), but the execution leaves much to be desired. Google has a support page detailing how to use the body temperature sensor, and you'll need to slowly swipe the phone across your entire face over four seconds to get a reading. The sensor needs to be extremely close to your face to work; Google says it wants the phone "as close as possible to the skin without touching." If you wear glasses, you'll need to take them off, because the phone needs to be so close to your face it will hit them. If you manage all that, you'll get a body temperature reading that you can save to your Fitbit profile.
We found the temperature sensor to be the biggest negative mark in our Pixel 8 Pro review. I'm not entirely sure a well-executed temperature sensor would be a useful feature on a phone, but the Pixel 8's temperature sensor is just such a hassle to use. Besides forehead measuring, it can also check the temperature of objects, but it only has a range of two inches. There's also no camera feed or any targeting system to be sure of what you're measuring—you get a blank screen with a "measure" button, you press it, and a number appears. Temperature sensing also stops the instant it reads any single temperature—it's not continuous. All the user experience problems made the temperature sensor instantly forgettable. The body temperature addition isn't helping and feels like a feature that would be better suited for a smartwatch.
It's almost hard to believe this is happening again, but Pixel users are reporting that an OS update has locked them out of their phones' internal storage, causing app crashes, non-functional phones, and a real possibility of data loss. Over in the Google Pixel subreddit, user "Liv-Lyf" compiled a dozen posts that complain of an "internal storage access issue" and blame the January 2024 Google Play system update.
In October, Pixel phones faced a nightmare storage bug that caused bootlooping, inaccessible devices, and data loss. The recent post says, "The symptoms are all the same" as that October bug, with "internal storage not getting mounted, camera crashes, Files app shows no files, screenshots not getting saved, internal storage shows up empty in ADB Shell, etc." When asked for a comment, Google told Ars, "We're aware of this issue and are looking into it," and a Google rep posted effectively the same statement in the comments.
In the October bug, users were locked out of their system storage due to a strange permissions issue. Having a phone try to run without any user access to your own storage is a mess. It breaks the camera and screenshots because you can't write media. File Managers read "0 bytes" for every file and folder. Nothing works over USB, and some phones, understandably, just fail to boot. The issue in October arrived as part of the initial Android 14 release and only affected devices that had multiple users set up.
If Google sticks to the usual cadence of device releases, the Google Pixel 9 will come out in around nine months. That's a long way away, but still not so far away that it can't be leaked: the ever-reliable Steve Hemmerstoffer, aka OnLeaks, has a set of Pixel 9 Pro renders up over at MySmartPrice. Usually, these renders are based on the CAD files that accessory designers need before they can begin making products, so while all the major components should be correct down to the millimeter, the materials, colors, and some small details may be speculative.
There are a lot of differences in these renders. First, the renders show a flat metal band around the sides, making it look a lot like an iPhone. Samsung also adopted this design for the Galaxy S24 and S24 Plus, so everyone seems to want to look just like their biggest rival. This allows the front and back of the phone to be completely flat slabs of glass, instead of the rounded glass back of the Pixel 8. The screen is also completely flat again.
The other major visible difference is the camera bar, which used to stretch from side to side across the back of the phone, but now is a floating bar that isn't connected to the sides. That makes the camera bar closer to the Pixel Fold design. The Pixel Fold camera bar was a rounded rectangle, but this is a full-on pill shape, which, in these renders, follows the shape of the camera glass cover. Besides the camera lenses, the bar has an LED flash and a second mystery sensor circle. On the Pixel 8, the circle under the LED is a temperature sensor. I feel like the temperature sensor has been either panned or forgotten about, so it wouldn't surprise me to see it cut, but the realities of the smartphone development cycle might make it too early for that.
Baton Rouge police rush a crowd of protesters and start making arrests on July 9, 2016, in Baton Rouge, Louisiana. | Photo by Mark Wallheiser/Getty Images
The Fifth Circuit has spent years harassing a civil rights activist, and they gutted much of the First Amendment in the process.
As part of this crusade, two of the Fifth Circuit’s judges effectively eliminated the First Amendment right to organize a protest in a case known as Doe v. Mckesson.
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Civil rights activist DeRay Mckesson accepts the Best Political Podcast award for Pod Save the People onstage during the 2020 iHeartRadio Podcast Awards at iHeartRadio Theater on January 17, 2020, in Burbank, California.
In 2016, Mckesson helped organize a protest near Baton Rouge’s police department building, following the fatal police shooting of Alton Sterling in that same Louisiana city. At some point during that protest, an unknown individual threw a rock or some other hard object at a police officer, identified in court documents by the pseudonym “Officer John Doe.”
There is no excuse for throwing a rock at another human being, and whoever did so should be held responsible for their illegal act, including serious criminal charges. But even Judge Jennifer Elrod, the author of the Fifth Circuit’s most recent opinion targeting Mckesson, admits that “it is clear that Mckesson did not throw the heavy object that injured Doe.”
Nevertheless, Doe sued Mckesson, claiming that, as the organizer of the protest where this injury occurred, Mckesson should be liable for the illegal action of an unidentified protest attendee. But that is simply not how the First Amendment works. The Supreme Court held in NAACP v. Claiborne Hardware (1982) that “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”
It should be obvious why protest leaders must not be held legally responsible for the actions of random protest attendees. No one will ever organize a political protest if they know that they could face financially devastating liability if a reckless or violent individual happens to show up.
Indeed, as Judge Don Willett, a Fifth Circuit judge who dissented from Elrod’s opinion, pointed out, Elrod’s approach could potentially force protest organizers to pay for “the unlawful acts of counter-protesters and agitators” who show up for the very purpose of undermining the protest organizer’s political goals. Under Elrod’s opinion, Mckesson could be held liable if the unknown rock-thrower turns out to be a member of the Ku Klux Klan who showed up for the very purpose of undermining the Black Lives Matter movement by associating them with violence.
In their petition to the Supreme Court, Mckesson’s attorneys make an audacious ask claiming that Elrod’s “decision is so ‘flatly contrary to this Court’s controlling precedent’ to be appropriate for summary reversal.”
A “summary reversal” is the judicial equivalent of a spanking. It means that the lower court’s decision was so erroneous that the justices decided to skip a full briefing or an oral argument in a case, and issue a permanent order overturning that lower court’s decision.
This process is rarely used, and it is distinct from the temporary orders the Court frequently hands down on its so-called shadow docket. The Supreme Court typically requires six justices to agree before summarily reversing another court’s decision.
Nevertheless, such a spanking is warranted in this case. Elrod’s opinion flouts exceedingly well-established First Amendment law. And it does so in a way that would make organized mass protests impossible, because anyone who tried to organize one would risk bankruptcy.
The Fifth Circuit’s Mckesson decision openly defies the First Amendment and the Supreme Court
To understand just how ridiculous Elrod’s decision is, and how egregiously she defies the Supreme Court’s caselaw, it’s helpful to start with the facts of the Claiborne case.
Like Mckesson, Claiborne involved a civil rights activist who organized a protest that allegedly included some violent individuals. In 1966, Charles Evers was the field secretary of the Mississippi chapter of the NAACP. In that role, he was the principal organizer of a boycott against white merchants in Claiborne County.
The Mississippi Supreme Court claimed that some of the individuals who joined this boycott also “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses. Evers, meanwhile, allegedly did far more to encourage violence than DeRay Mckesson is accused of in his case. He allegedly gave a speech to potential customers at these stores, where he said that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”
The Supreme Court nonetheless held that this “emotionally charged rhetoric ... did not transcend the bounds of protected speech.” Claiborne also warned that courts must show “extreme care” before imposing liability on a political figure of any kind.
That said, the Court’s decision also listed three limited circumstances when a protest leader may be held liable for the violent actions of a protest participant:
There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.
None of these circumstances are present Mckesson. To the contrary, the Fifth Circuit admitted in an earlier decision in this very case that Officer Doe “has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.”
So how on earth did Elrod arrive at the conclusion that Mckesson could be held liable for the actions of an unknown protest attendee? For starters, she claimed that her court could just add new items to the list of three circumstances that could justify such liability in her Mckesson opinion. According to Elrod, “nothing in Claiborne suggests that the three theories identified above are the only proper bases for imposing tort liability on a protest leader.”
This is, to put it mildly, a very unusual way to read a Supreme Court opinion that held that threats to break someone’s neck can be First Amendment-protected speech, which calls for “extreme care” before targeting protest organizers, and which laid out only three very specific circumstances that “might justify” an exception. Elrod cites no other court decision that has ever read Claiborne in such a counterintuitive way.
Then, after giving herself the power to invent new exceptions to the First Amendment, Elrod writes that this amendment does not apply “where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.”
And what are the “dangerous conditions” created by Mckesson? Mckesson “organized the protest to begin in front of the police station, obstructing access to the building.” He did not “dissuade” protesters who allegedly stole water bottles from a grocery store. And he “led the assembled protest onto a public highway, in violation of Louisiana criminal law.”
Seriously, she said that the First Amendment begins to fade the minute a protest occupies a street.
William Lovelace/Getty Images
Dr. Martin Luther King Jr. and Coretta Scott King lead marchers in “unreasonably dangerous activity,” according to Jennifer Elrod.
It’s hard to imagine a more lawless, unpersuasive, and historically ignorant decision than the one Elrod put her name on in the Mckesson case. And if the Supreme Court can’t find the votes to reverse that decision, the right to engage in mass protest will become meaningless.
Enlarge / The missing emergency door of Alaska Airlines N704AL, a 737 Max 9, which made an emergency landing at Portland International Airport on January 5 is covered and taped, in Portland, Oregon on January 23, 2024. (credit: PATRICK T. FALLON/AFP via Getty Images)
Inspections of Alaska Airlines' fleet of Boeing 737 Max 9s has turned up "many" loose bolts, according to CEO Ben Minicucci. "I'm more than frustrated and disappointed," he told NBC News, "I am angry. This happened to Alaska Airlines. It happened to our guests and happened to our people."
The inspections follow a near-disaster on Alaska Airlines flight 1282 on January 5 of this year, when a blanking plate blew off the 737 Max 9 aircraft mid-flight. The loss of the blanking plate resulted in a rapid decompression of the plane but, fortunately, did not result in loss of control of the aircraft or any physical injuries to passengers or crew.
The following day, the Federal Aviation Administration issued an Emergency Airworthiness Directive that has grounded all 737 Max 9s fitted with mid-cabin door plugs—other specifications of the plane use actual doors at that location to allow for more passengers in the cabin.
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Montgomery County’s Housing Opportunities Commission
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