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For good reason, much attention was devoted to the Supreme Court’s oral arguments on Monday, over government pressure on social media companies to suppress speech that officialdom doesn’t like. The same day, though, justices heard arguments in another important case involving free speech principles violated when New York officials leaned on financial institutions to deny services to the National Rifle Association. Importantly, both cases involved “jawboning,” the use by government of threats to improperly coerce compliance.

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Δ When Communication Becomes Coercion

As Reason’s Jacob Sullum ably summarizes, arguments in Murthy v. Missouri involve “dueling interpretations of the Biden administration’s interactions with social media platforms regarding content it viewed as dangerous to public health, democracy, or national security,” with plaintiffs arguing that “those private contacts, combined with public statements condemning the platforms’ failure to suppress ‘misinformation,’ amounted to government-directed censorship.”

At stake is the point at which efforts to persuade private companies they ought not offer platforms to certain speakers morph into “nice business you got there; it’d be a shame if something happened to it.” Did officials cross the line when they badgered tech firms to muzzle voices skeptical of lockdowns, COVID vaccinations, and election integrity? If you’ve followed the Twitter and Facebook Files, you know there’s significant evidence they did, though it remains to be seen if Supreme Court justices agree.

Remarkably, the evidence of improper strong-arming appears even clearer in National Rifle Association of America v. Vullo. In that case, the NRA, joined by the ACLU, alleges that Maria Vullo, former Superintendent of the New York State Department of Financial Services, abused the power of her position to punish the gun rights organization for its political positions.

“Vullo met with executives at Lloyd’s of London to discuss her views on gun control and to tell them she believed the company’s underwriting of NRA-endorsed insurance policies raised regulatory issues,” according to Abby Smith of the Foundation for Individual Rights and Expression (FIRE). “She told them Lloyd’s could ‘avoid liability’but only if the company told its syndicates to stop underwriting their insurance policies, and joined her agency’s ‘campaign against gun groups.'”

There was nothing subtle about the arm-twisting. In 2018 I wrote about guidance letters New York regulators sent to banks and insurance companies, at the behest of then-Gov. Andrew Cuomo, cautioning “regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.” Given that insurance companies and banks are tightly regulated and operate largely at the pleasure of state officials, this would logically be interpreted as a threat. Subsequently, banks and insurance companies alike cut ties with the NRA.

“New York, if these facts are true, tried to circumvent the First Amendment’s ban on censorship by relying on this informal pressure campaign,” noted FIRE’s Smith. “But informal censorship violates the First Amendment, too.” Extra-Legal Threats Violate Individual Rights Protections, Say the Courts

Such informal censorship is known as “jawboning” since, as the Cato Institute’s Will Duffield wrote in 2022, it involves “bullying, threatening, and cajoling” in the place of formal legal action.

“Jawboning occurs when a government official threatens to use his or her powerbe it the power to prosecute, regulate, or legislateto compel someone to take actions that the state official cannot,” observed Duffield. “Jawboning is dangerous because it allows government officials to assume powers not granted to them by law.”

Despite formal protections for individual liberties, such as the First Amendment, the vast regulatory power wielded by government agencies in the United States is easily weaponized against people who don’t do the government’s bidding. Such abuses aren’t hypothetical but are a matter of public record already addressed by the courts.

“People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around,” the U.S. Supreme Court recognized in Bantam Books v. Sullivan (1963). That case involved Rhode Island officials hassling booksellers to refrain from stocking allegedly obscene publications. The implied threats and constant nagging of booksellers by state officials “was in fact a scheme of state censorship effectuated by extra-legal sanctions,” ruled the court.

Does “a scheme of state censorship effectuated by extra-legal sanctions” better describe the situation in the Murthy case or in the NRA case? Well, Monday was a twofer day, so why not both? A Strong Case Against New York’s Jawboning

In truth, New York regulators’ threats to insurance companies and banks that do business with the NRA and other gun groups were so overt that even commenters hostile to the NRA and self-defense rights concede that state officials went way over the line.

“Every now and then, the Supreme Court takes up a case involving a public official who acted so foolishly…that you wish the justices could each take turns smacking them upside the head,” Vox’s Ian Millhiser, no fan of the NRA, conceded last November. “National Rifle Association v. Vullo, which the Court announced that it would hear last Friday, is such a case.”

And so far, while it’s uncertain which way the justices will jump in Murthy, the court seems inclined to agree that it’s impermissible for government officials to use regulatory threats to coerce financial firms into cutting ties with disfavored political organizations.

“The Supreme Court on Monday appeared sympathetic to the National Rifle Association’s claim that a New York official violated the group’s right to freedom of speech when she urged banks and insurance companies that worked with the NRA to cut ties with the group,” SCOTUSblog’s Amy Howe concluded. ACLU Legal Director David Cole “closed by telling the justices that ‘the notion that this is business as usual, for a government official to speak with a private party and say we’ll go easy on you if you aid my campaign to weaken the NRA. That is not business as usual. That is not ordinary plea negotiation.’ Although it was not entirely clear, a majority of the justices seemed to agree with him.”

With government reaching ever further into American life, it’s time the court reminds officials, once again, that their intrusive powers aren’t supposed to be used to bypass protections for individual rights.

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Business

M&S tells agency workers to stay at home after cyberattack

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M&S tells agency workers to stay at home after cyberattack

Marks & Spencer (M&S) has ordered hundreds of agency workers at its main distribution centre to stay at home as it grapples with the unfolding impact of a cyberattack on Britain’s best-known retailer.

Sky News has learnt that roughly 200 people who had been due to undertake shift work at M&S’s vast Castle Donington clothing and homewares logistics centre in the East Midlands have been told not to come in amid the escalating crisis.

Agency staff make up about 20% of Castle Donington’s workforce, according to a source close to M&S.

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The retailer’s own employees who work at the site have been told to come in as usual, the source added.

“There is work for them to do,” they said.

M&S disclosed last week that it was suspending online orders as a result of the cyberattack, but has provided few other details about the nature and extent of the incident.

In its latest update to investors, the company said on Friday that its product range was “available to browse online, and our stores remain open and ready to welcome and serve customers”.

“We continue to manage the incident proactively and the M&S team – supported by leading experts – is working extremely hard to restore online operations and continue to serve customers well,” it added.

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It was unclear on Monday how long the disruption to M&S’s e-commerce operations would last, although retail executives said the cyberattack was “extensive” and that it could take the company some time to fully resolve its impact.

Shares in M&S slid a further 2.4% on Monday morning, following a sharp fall last week, as investors reacted to the absence of positive news about the incident.

M&S declined to comment further.

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World

Date set for conclave to decide next pope – here’s how the secretive process works

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Date set for conclave to decide next pope - here's how the secretive process works

The conclave to elect Pope Francis’s successor will begin on 7 May, the Vatican has announced.

Some 135 cardinal electors – those under the age of 80 – will take part and vote for the new pontiff.

The rituals of the event, held in the Sistine Chapel, are elaborate and date back centuries. So how does the process work?

When Pope Francis died, the Catholic Church entered a period known as “sede vacante”, meaning “empty seat”.

His ring and seal – used to dispatch papal documents – were broken to prevent anyone else from using them.

Cardinal Kevin Farrell – the Camerlengo, or chamberlain, who announced Francis’s death – became the interim chief of the Catholic Church.

Cardinals hold their hats during a mass presided by [German Cardinal Joseph Ratzinger] in St. Peter's Basilica in the Vatican April 18, 2005. Cardinals will meet later today in the Sistine chapel for the start of the papal conclave.
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Pic: Reuters

The conclave

Cardinals travel to Rome from all over the world and stay until a new pope is chosen.

Of the 252 current ones, there are 135 cardinal electors: 53 from Europe; 23 from Asia; 20 from North America; 18 from Africa; 17 from South America; and four from Oceania.

Italy has the most cardinals who can vote, with 17, while the US has 10 and Brazil has seven. The UK has three.

Shadows of tourists are cast across a papal crest dedicated to Pope Pius XII on the floor of Saint Peter's Basilica at the Vatican March 11, 2013. Roman Catholic Cardinals will begin a conclave on Tuesday to elect the Church's 266th pontiff and a successor to Pope Benedict, who abdicated unexpectedly last month. REUTERS/Eric Gaillard (VATICAN - Tags: RELIGION TRAVEL)
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A papal crest dedicated to Pope Pius XII. Pic: Reuters

Once the conclave begins, the cardinals will not emerge from the Vatican until a new pope has been chosen. The word “conclave” comes from Latin, meaning “with key” – a reference to the isolation in which the cardinals are kept.

While holding voting sessions in the Sistine Chapel, they sleep in the Casa Santa Marta – a guesthouse inside the Vatican’s grounds.

The longest conclave lasted almost three years, between 1268 and 1271. Several have lasted only one day. The one which elected Pope John Paul in 1978 lasted less than three days. Cardinals chose Pope Francis in around two days.

While the conclave is ongoing, cardinals are unable to communicate with the outside world. No telephones, internet use or newspapers are allowed.

Except for the first day, when only one ballot is held, the cardinals hold two daily votes until one candidate has a majority of two-thirds plus one. They are sworn to secrecy about the voting.

White smoke?

So how do we know if a decision has been reached? Yes, this is the black smoke, white smoke part.

If the cardinals have not reached a majority, the cards and the tally sheets are placed in a stove and burned with an additive to produce black smoke, showing the outside world that a pope has not yet been chosen.

A statue of an angel is silhouetted in front of black smoke rising from the chimney above the Sistine Chapel. A statue of an angel is silhouetted in front of black smoke rising from the chimney above the Sistine Chapel in the Vatican, indicating no decision has been made after the first vote for the election of a new pope, April 18, 2005. The 115 eligible cardinals began the papal conclave on Monday evening to elect a new pope following the death of Pope John Paul II. REUTERS/Max Rossi
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No pope yet… black smoke rising from the Sistine Chapel. Pic: Reuters

Watching for the tell-tale smoke arising from the top of the Sistine Chapel is a tradition, with Catholics crowding into St Peter’s Square for the spectacle.

If no result has been reached after three days, the sessions are suspended for a day to allow for prayer and discussion. More ballots are held until a two-thirds majority is reached.

When enough cardinals have agreed on a candidate, he is asked if he accepts the papacy and by which name he wishes to be known.

The ballots are burned as before, but with an additive to produce white smoke.

A Papal white skull cap and burgundy shoes are displayed in the Gammarelli's tailor shop window in Rome, April 14, 2005. Cardinals start choosing a new Pope next week, but the successor to John Paul will be all sewn up well before the secret conclave opens. Because the tailor Filippo Gammarelli has no clue as to who the new pope will be, the firm has made three versions of the same silk and wool outfit, in small, medium and large, to clothe the most lean or corpulent cardinal. Picture taken Apri
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A Papal white skull cap. Pic: Reuters

New pope proclaimed

The new pope then dons his new papal vestments – tailors keep large, medium and small sizes ready – and sits on a throne in the Sistine Chapel to receive the other cardinals who file up to pay homage and swear obedience to the church’s new leader.

The senior cardinal deacon then steps out on to the central balcony of St Peter’s Basilica overlooking the square and announces in Latin: “Annuntio vobis gaudium magnum. Habemus Papam” (I announce to you a great joy. We have a pope) and reveals the cardinal’s name and the name he has chosen.

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The new pope then appears on the balcony to deliver his first public pontifical greeting and bless the crowds in St Peter’s Square.

A few days later, he celebrates a mass that marks the beginning of his papal ministry.

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UK

Schoolgirl who attempted to murder teachers and pupil sentenced to 15 years in detention

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Schoolgirl who attempted to murder teachers and pupil sentenced to 15 years in detention

A 14-year-old girl who attempted to murder two teachers and a pupil at a school in Wales has been sentenced to 15 years in detention.

The girl, who cannot be named for legal reasons, was previously found guilty of attempting to murder teachers Fiona Elias and Liz Hopkin and a pupil at Ysgol Dyffryn Aman in Ammanford.

Emergency services were called to the school on 24 April last year, in what the trial heard was a “serious episode of violence” during the mid-morning break after the girl took her father’s fishing “multi-tool” to school.

She had admitted to three counts of wounding with intent and possession of a bladed article on a school premises, but a jury found her guilty of attempted murder in February after a week-long trial.

Following her arrest, the teenager told officers she was “pretty sure” the incident would be on the news, and added “that’s one way to be a celebrity”.

Both Mrs Elias and Mrs Hopkin “received significant and serious injuries”, Swansea Crown Court heard.

Mrs Hopkin was airlifted to the University Hospital of Wales in Cardiff after she sustained “four stab wounds”, while Mrs Elias and the pupil also attended hospital for treatment.

Ammanford in Carmarthenshire
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Ammanford in Carmarthenshire

‘Changed my life forever’

Reading her victim personal statement from the witness box on Monday, Fiona Elias said the incident had shown her that life was “fragile” and had been “a steep learning curve”.

“Walking out on duty that day would change my life forever,” she said – a moment which “replays itself over and over no matter how much time passes”.

“It’s not easy, and I know I’ll continue to face challenges, but every day I’m taking step towards healing,” Mrs Elias said.

Addressing the defendant, Mrs Elias said “your motive was clear, you intended to murder me” but that she was stopped “thanks to Liz’s selfless actions”.

She said she was not “ruling out the possibility of a meeting with [the pupil] in the future,” but that she first needed to know she would “engage with the interventions that will be put in place”.

Outlining her plans to campaign for safer working conditions at schools, Mrs Elias said: “I never expected to give my blood, but I will always give my heart to Ysgol Dyffryn Aman and to the world of education.”

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The teenager, who can’t be named, is due to be sentenced in April.

‘Right place at the right time’

Liz Hopkin said it had been “the worst experience of [her] life” but that she was “glad” she was “in the right place at the right time” to protect Mrs Elias.

“I’m still here, I’m still alive, though at the time I was sure that I was going to die,” she told the court.

“Physically, my wounds have healed but the scars remain.”

Mrs Hopkin added that the thought of returning to a career in teaching now filled her with “anxiety and dread”.

“You were prepared to kill someone you did not know,” she said, addressing the defendant, who sat in the court for proceedings, until she moved to the dock for sentence.

“The decision to end my life was never yours to make.”

But Mrs Hopkin said she worried about the defendant’s future, adding: “I don’t want you to be punished forever but I do want you to take every opportunity to make your life better.”

Concluding her victim personal statement, Mrs Hopkin said: “It has changed me in ways I never wanted and that is something I will have to live with for the rest of my life.”

Pic: PA
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Pic: PA

‘Very complex young girl’

Prosecuting, William Hughes KC said aggravating factors in the case included use of a knife, the fact two of the victims were “carrying out a public service” and that the offending took place in public.

In mitigation, Caroline Rees KC said the defendant was “a very complex young girl”.

She said she had shown remorse, had a “difficult background” and also the fact there were two trials.

Handing down his sentence, Judge Paul Thomas said the defendant would serve half of the 15-year sentence before she can be considered for release.

Addressing the defendant, he said: “What you did in school almost a year ago the day has caused a large number of people a great deal of harm and upset. It has hugely affected many lives, including, of course, your own.”

“The simple fact is you tried to kill three people, two teachers and another pupil,” he added.

“I think that it is very important here that what you did you did in full of so many other pupils…In my view you wanted as many of your fellow pupils as possible to see what you intended to do.”

The Judge added that “for one reason or other, [the defendant wasn’t] really listening” to the victim impact statements of Mrs Elias and Mrs Hopkin.

He said he did not think the teenager was “genuinely sorry” for what she did, adding: “You showed no emption or even interest in how they felt that day or ever since.”

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