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I am very proud to announce that JoshBlackman.com has just hit post #1,000. In honor of this momentous occasion, I figured I would feature a countdown of my top 10 favorite blog posts of all time.

10. Oyez, Oyez, Oyez! JoshBlogs.WordPress.com Is Live! – This was my first blog post on September 29, 2009. For those of you who are long-time fans, originally I blogged at joshblogs.wordpress.com, and only moved to JoshBlackman.com on November 24, 2009. I launched this blog without knowing what the heck I was doing, but looking back, I am very glad I started to blog.

9. Constitutional Places: A New Coffee Table Book from the Harlan Institute for Constitutional Studies. – One of my other initiatives this year was to co-develop an illustrated book titled Constitutional Places, Constitutional faces. This book assembles photographs and narratives of the stories behind famous constitutional law cases. This project has yielded some absolutely amazing photographs, never-before-seen records, and has allowed me to interview some pretty cool people. I can’t wait to see the book in print. Stay tuned.

8. Pic: My JHNGALT License Plate. The Only Way to Go Galt! – I’ll let the picture speak for itself. Needless to say, this license plate makes me laugh every time I see it.

7. I will be a Teaching Fellow at Penn State Law during the 2010-11 Academic School Year – During the spring 2010 semester I was fortunate to search as a teaching assistant for Judge Gibson at the Penn State Law School, and was able to give several lectures to the students. I was even more fortunate to be rewarded with a teaching fellowship by the law school for the 2010-11 school year. I can’t wait!

6. JoshVlog: Interview with Atlas in Rockefeller Center. Who is John Galt? – So I was visiting Rockefeller Center with my parents and saw the Atlas statue. With my flip camera in hand, I figured, why not make an impromptu video! Though the production value is quite poor, I was happy with it.

5. McDonald v. Chicago Instant Analysis – The evening before oral arguments in McDonald, I spent the night sleeping on the sidewalk in order to ensure that I would receive a seat. Within minutes after exiting oral arguments, I blogged “The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk.” This was the first reaction to McDonald anywhere on the blogosphere, and you found it here first. This post has one of the most thorough analysis anywhere of oral arguments.

4. FantasySCOTUS.net Predictions of the 10th Justice– Relying on the votes of members of the FantasySCOTUS.net Fantasy League I launched, with the invaluable assistance of Corey Carpenter, I was able to generate predictions for almost all of the Supreme Court cases the Court considered this term with a decent degree of accuracy. Additionally, I called Elena Kagan as the nominee. This was an exciting project that spawned from a simple idea to over 5,000 members, and paved the way for my non-profit, the Harlan Institute.

3. Justice O’Connor’s iCivics and Harlan Institute Announce New Partnership – This past year I co-founded the Harlan Institute.The Harlan Institute’s mission is to bring a stylized law school experience into the high school classroom to ensure that our next generation of leaders has a proper understanding of our most fundamental laws. I spent quite some time working with the fantastic team at Justice O’Connor’s iCivics, and we developed a robust partnership to help teach the next generation about the Constitution and the Supreme Court. I am so proud of this initiative.

2. HLS Flashback from 1900: Student goes insane during Con Law Final, Dies from “Overstudy” – By far, this was my most popular blog post of all time. With links from Volokh, Above The Law, and thousands of facebook and twitter accounts, this post went viral and hit 30,000 unique pageviews in 2 days. Absolutely hilarious too.

1. Question Presented in 2nd Amendment Case Asks About Privileges or Immunities Clause – This is really where it all started. Before this post I had no real involvement in McDonald v. Chicago other than a fleeting interest in guns. After this post, it was full steam ahead. In this post, way back on September 30, I began to discuss my idea for Pandora’s Box. About 3 months later, I turned this initial blog post into a 90 page article with Ilya Shapiro published in the Georgetown Journal of Law & Public Policy. If I could locate the exact moment when I knew I had something cool, it was this blog post.

I hope to keep bringing everyone the highest quality legal analysis, humor, and insight. Thanks for visiting.

The City of Oakland has approved an ordinance that allows the industrial production of marijuana. The opening of these four factories illustrates a number of very important public choice principles.

From the LA Times:

Oakland’s City Council on Tuesday approved an ordinance that could make it the first city in the state to permit industrial marijuana production, a path-breaking decision that could spur the commercialization of a crop largely grown in hidden gardens.

The plan would authorize four potentially enormous pot factories, but makes no provision for the hundreds of growers who now supply Oakland’s four dispensaries, which sold $28 million in marijuana last year. The council, however, promised it would develop a plan for these growers before permits are awarded next year for the four large-scale marijuana operations.

Good news, right? Well not everyone is happy. In a classic case of Baptists and Bootleggers, or perhaps Baptists and Stoners in Oakland’s case, existing growers of marijuana are displeased, and oppose the opening of these factories:

The 5-2 vote came after two hours of testy debate between pot growers who argued the proposal could destroy their livelihoods and businessmen who said it could turn Oakland into the Silicon Valley of pot, create jobs and generate new tax revenues. The audience booed, hissed and talked back, causing City Council President Jane Brunner to repeatedly admonish the crowd.

Steve DeAngelo, who runs Harborside Health Center, the city’s largest dispensary, led a campaign to urge the council to accommodate these growers in the ordinance.

“These growers are not anonymous miscreants burning down houses and bringing crime to neighborhoods,” said DeAngelo, who buys marijuana from more than 400 growers. “They are real people, decent people with families to support.”

Additionally the city is erecting serious barriers to entry in order to grow marijuana. This will further keep out the mom and pop small marijuana cultivators.

The proposal has ignited a contentious debate in Oakland over whether the city should be in the business of deciding who gets to be a marijuana mogul. The annual permit fee would be $211,000, a high barrier for smaller growers. Many fear that after years of risking federal prosecution, they will be shut out just as Oakland seeks to legitimize pot cultivation.

Unsurprisingly, the 4 pot factories approved engaged in some serious rent seeking to receive those coveted licenses, and perhaps captured the council members that approved their permits.

Oakland keeps a list of people who have expressed interest in the permits. On Tuesday afternoon, Arturo Sanchez, who oversees the city’s marijuana regulations, said it had 192 names.

But much of the attention has focused on just a few successful businessmen who have been vocal about their plans and their intent to win permits. They have money, buildings, proposals and ready access to the council members, but only recently became interested in medical marijuana.

Wilcox, a retired construction firm owner, wants to convert a complex of aging industrial buildings he owns along Interstate 880 into what could be the world’s largest pot factory, raising about 58 pounds of marijuana a day, more than enough to handle Oakland’s consumption.

Two other entrepreneurs, Dhar Mann and Derek Peterson, partners in a hydroponics store called iGrow, have a team already working on designs for a multi-level operation in a 57,000-square-foot warehouse that they have an option to lease. Peterson said he had no doubt their proposal would win a permit.

And of course, the city will profit from the regulation of this industry through the form of taxation:

Bringing what has been a secretive and lucrative cash business into the open would also allow Oakland to tax it, potentially adding millions of dollars to its ailing budget. The city, which has led the state in its innovative approach to marijuana, was the first to adopt a pot tax, which is 1.8%, but is considering asking voters to approve a substantial increase.

Please take a look at this interesting new article from M. Ryan Calo, titled The Boundaries of Privacy Harm (H/T Legal Theory Blog). He attempts to “uncouple[] privacy harm from privacy violations, demonstrating that no person need commit a privacy violation for privacy harm to occur (and vice versa).” Here is the abstract:

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the unwanted perception of observation. This category describes unwelcome mental states – anxiety, embarrassment, fear – that stem from the belief that one is being watched or monitored. Examples include everything from a landlord listening in on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against that person. These are negative, external actions justified by reference to personal information. Examples include identity theft, the leaking of classified information that reveals an undercover agent, and the use of a drunk-driving suspect’s blood as evidence against him.

The subjective and objective categories of privacy harm are distinct but related. Just as assault is the apprehension of battery, so is the unwanted perception of observation largely an apprehension of information-driven injury. The categories represent, respectively, the anticipation and consequence of a loss of control over personal information.

The approach offers several advantages. It uncouples privacy harm from privacy violations, demonstrating that no person need commit a privacy violation for privacy harm to occur (and vice versa). It creates a “limiting principle” capable of revealing when another value – autonomy or equality, for instance – is more directly at stake. It also creates a “rule of recognition” that permits the identification of a privacy harm when no other harm is apparent. Finally, the approach permits the sizing and redress of privacy harm in novel ways.

Calo also notes that massive outdoor surveillance has a high degree of subjective privacy harm:

Having described the properties of subjective privacy harm, however,

we can now say that the degree of aversion is small—2 out of 10, for

instance. But we do not stop here: we must multiply the degree of aversion

by the extent of surveillance. In the case of massive outdoor surveillance

by closed circuit television camera (“CCTV”) or pervasive aerial

photography, especially where the footage is stored and processed, the

extent of the surveillance is enormous. Thus, the ultimately harm can be

quite large (8 out of 10).149

This is the essence of the term I dubbed omniveillance, which I described as “omnipresent,omniscient, digital surveillance in public, broadcasted indiscriminately throughout the Internet, without any concern for newsworthiness.” The idea of a subjective category of privacy harm, focusing on “an apprehension of information-driven injury” jives well with the nature of the privacy tort I introduced in Omniveillance.

Calo also notes that massive outdoor surveillance has a high degree of subjective privacy harm:

Having described the properties of subjective privacy harm, however,

we can now say that the degree of aversion is small—2 out of 10, for

instance. But we do not stop here: we must multiply the degree of aversion

by the extent of surveillance. In the case of massive outdoor surveillance

by closed circuit television camera (“CCTV”) or pervasive aerial

photography, especially where the footage is stored and processed, the

extent of the surveillance is enormous. Thus, the ultimately harm can be

quite large (8 out of 10).149

As I discussed in Omniveillance.

The key to understanding privacy is to understand how a person chooses to change his speech and actions in varying contexts.72 Inherent in each human being is a dichotomy between what society sees of a person and what that person knows about himself.73 In fact, the “the first etymological meaning of the word ‘person’ was ‘mask,’ ” as everyone exists behind a façade.74 Generally, when a person is in public, he feels a cloak of anonymity. When no one is paying attention, people tend to act free and uninhibited.75

People may feel comfortable exhibiting certain behavior in front of one audience when anonymity exists, but not in front of another audience when privacy is lacking. A person may comfortably and freely express himself when he has the perception of anonymity, even if it is in front of a close group of friends because of the tight bonds within a social network,76 because there is less fear that what is said or done can be used against him to harm him. Anonymity allows people to act with fewer inhibitions, as they have the ability to control the risk of damage to their reputation.
The logical converse of this proposition is that when someone feels they are being watched, they tend not to act as free and uninhibited.77 When a person feels that others may be looking, he will generally act differently.78 Persistently recording a person and broadcasting the images out of context chills an individual’s ability to freely express himself. If a person knows, or even is apprehensive that he is being photographed by omniveillance, his behavior will be even further modified because the observation will be indelibly recorded forever.79 Recently, a German study analyzing how surveillance affects a citizen’s behavior found that [p]eople under surveillance behave differently than people who are not monitored—differently than free people.”80 Therefore, understanding the dynamic of people’s perception of anonymity in public is critical for promoting positive uninhibited expressions.

Privacy and free speech can be thought of as two sides of the same coin. They are complementary, rather than competing, interests.81 When properly balanced, they yield optimal results. To further explore this, it is necessary to visualize two extremes. In a world with no privacy protections and unrestricted free speech rights, where everything can be known about everyone, free expression would suffer. A person would not want to express his true thoughts for fear of embarrassment, ridicule, humiliation, or retribution.82 This fear would result in the ultimate chilling of speech.

However, in an alternate universe with absolute privacy rights and no free speech, there would be a similar outcome. A person would not be able to express his true thoughts, and would have to keep all of his emotions to himself. This restraint would also result in the ultimate chilling of speech. Therefore, rather than existing as competing interests, privacy and free speech complement one another when properly balanced to provide a symmetry to optimize people’s desire to express themselves, and at the same time, minimizes any apprehension that such an expression may cause. Without privacy, people do not comfortably speak candidly.83 Without free speech, people cannot speak candidly. For this reason, society should strive to achieve a dynamic equilibrium between free speech and privacy that can promote the optimal level of expression.

Calo also discusses the “notoriously difficult problem of ‘privacy in public”

The approach also furnishes criteria for “sizing” privacy harm and ranking their relative severity. In the case of subjective privacy harms, we can look to the degree of aversion to any observation as distinct from the extent of observation experienced. High degrees of both translate into the greatest harm, but harm is possible if either are very high.146

This insight is useful in describing the notoriously difficult problem of “privacy in public.”147 The law’s approach to privacy in public is monolithic: it generally refuses to see a privacy violation where the observation takes place in public on the theory that people in public have no reasonable expectation of privacy.148 In the absence of a privacy violation, meanwhile, we tend not even to look for privacy harm.

Perhaps focusing on a subjective privacy harm, rather than a privacy injury, to understand privacy in public is a more precise inquiry. This conception of privacy, balancing the “degree of aversion to any observation” to the “extent of observation experienced” somewhat mirrors the privacy tort I proposed:

The right to your digital identity is violated when an individual or organization records and reproduces an image of another without consent using a visual or auditory enhancing device while (1) the party recorded possessed a reasonable expectation of privacy to not be recorded; (2) the matter recorded would be offensive to a reasonable person; (3) the recording is intentionally widely transferred or disseminated through any electronic medium to any electronic format; and (4) the recording is not newsworthy, where a newsworthy recording (4a) has social value, (4b) minimally intrudes into ostensibly private affairs, and (4c) the party that is recorded voluntarily acceded to the position of public notoriety.

Excellent article. Definitely worth a read.

Not sure how I just noticed this, but in a footnote in his McDonald dissent, Justice Stevens gives a serious shot-out to Charlton Heston:

Millions of Americans have answered this question in the affirmative, not infrequently because they believe they have an inalienable right to do so——because they consider it an aspect of ““the supreme human dignity of being master of one’’s fate rather than a ward of the State,”” Indiana v. Edwards, 554 U. S. 164, 186 (2008) (SCALIA, J., dissenting). Many such decisions have been based, in part, on family traditions and deeply held beliefs that are an aspect of individual autonomy the government may not control.29

29 Members of my generation, at least, will recall the many passionate statements of this view made by the distinguished actor, Charlton Heston.

The more I read Stevens’ dissent, the more I like it (not that I agree with it). It is still befuddling by Breyer, Ginsburg, and Sotomayor did not join it.

Anyway, in honor of Charlton Heston, please watch obligatory “From my cold dead hands” clip.

LOL from Reason:

At the victory party Friday night after having had all charges against him dropped in federal court, pornographer John Stagliano, his lawyers, his family, and colleagues from the adult industry raised a toast to his freedom. But because his wife is pregnant and his daughter is underage, and because one of the films under indictment was called Milk Nymphos, the champagne flutes were filled with an unusual fluid: milk.

I know it when I see it. And that is pretty funny.