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Notes -
California v. CTRLPEW
[Complaint here]
There's a lot to be said, much of it morbid, about this case. The sticker price on each claim is already steep -- 50k+ USD per -- but the state seems to be arguing each download of each file is its own violation, and doing its own downloads; it's not just possible but likely that this is trying to slap glorified hobbyists with millions or tens of millions of dollars in fines. For even more fun, it likely passed a law specifically to make this suit more painful and with a harder standard to defend against. It's also hard to overstate what and how broad an impact banning merely making information available for someone to download is. The defense's countersuit spells out some of the more overt aspects: merely submitting evidence to a filing that ends up on PACER would run headfirst into this theory. And a malicious actor could do some absolutely hilarious stuff to violate the text of the law, excepting of course that the state will only bring charges against people it doesn't like.
A lot of other people in the 3d Printing world have, unsurprisingly, had to put together some geolocation-based blocks. It's not clear how well that would actually protect them, though.
On the upside, this is clearly protected speech. The normal slogan is about how Code Is Free Speech, and that's pretty well-established under standing precedent, but this isn't even 'just' code. The lawsuit here is overtly focusing on instructions, documentation, and image files. Whatever exceptions for crime-facilitating speech or speech integral to a crime exist, they can't possibly be stretched so far as to cover content that was lawful for a wide majority of the country to discuss or receive, right? Sure, we're talking the Ninth Circuit, so Ivan The Troll is going to have an expensive time finding lawyers, but surely cooler heads will prevail?
Well...
Code is <not> Free Speech
The Third Circuit has given an answer in Defense Distributed v. New Jersey:
There's a variety of technical frustration, here. This court case happened in the not-favorable Third Circuit at all because of some hilarious hijinks with intercircuit transfer. I'll gloss over most of the procedural ones, but if you want a dark chuckle, the official position of the Third Circuit is now that "While the complaint lists a variety of file types (e.g., (.igs), (.stl), (.skp) (.pdf) (.stp)), it is unclear which, if any, of those are CAD or CAM files." So you can take the entire concept of the educated elite and gives it the Ol' Yeller treatment. Three college-educated judges, all with the powers of their offices and modern technology and over a year to write this opinion, claim that they did not understand what a PDF was.
((For those interested and somehow browsing this site without internet access, "Initial Graphics Exchange Specification", "Stereolithography", "SketchUp", and "STEP" files are all CAD files. They show 3d-images of a firearm; they are not code that you would run on any 3d printer. Especially SketchUp, what the fuck.))
But the more damning one is that the points don't matter, the rules are all made up. This isn't an explanation of why Defense Distributed lost, just a story saying that they did. The judges are lying, they know they're lying, you know they're lying, the dog knows. Say what you will for the limits of judicial notice, but when the courts require PDFs in specific formats, judicial notice can tell what a PDF is when it wants, and this court does not want to do so. Bernstein, Junger, and Universal City Studios may well all have protected code as free speech, but the it's not that the Third Circuit has built a new standard here. After all, they refused to do that.
The Third Circuit's opinion holds that Defense Distributed did not adequately allege that their prohibited content was speech, because 3d images of a thing -- to the surprise of the Supreme Court -- could be something other than speech, and then shies away from actually distinguishing one from the other. How would you demonstrate that to the adequacy of an East Coast judge?
In theory, en banc or a SCOTUS appeal is potentially available, and either would give a more
honestfavorable draw. Were they to happen.Spoiler alert: it ain't going to happen.
Louisiana v. Pill Mills
The Guardian reports:
This is a messy case, without a lot of sympathetic actors.
Coeytaux is a prescribing doctor for Aid Access, an org that exists for the sole purpose of making abortion medications available, and while some of that reflects cases where people don't have the economic opportunity to purchase, more of it reflects cases where the law says no, and Coeytaux (or associates) filled out a package envelope for that specific address to no. Outside of the legal concerns or the moral objections to abortion, a lot of its economics depend on basically being a pill mill, and hasn't always been the most consistent about only using FDA-approved formulations, or checking out who the drugs are going to. The spectre of induced 'miscarriages' pushed by a boyfriend who doesn't want to become a father, to a mother who did, has long been a possibility anti-abortion advocates point toward, and there have been other cases that seem to have clear evidence of coercion by other family members. I'll instead point toward the lackluster available counseling about side effects or complications, a matter that's been far messier from other providers.
But a lot of those concerns are more imagined than demonstrated, in this case. The FDA's animosity for overseas generics sometimes reflects adequate skepticism, but mostly seems driven by provincialism. Like a previous case involving Coeytaux, it's unclear exactly how coercive the 'boyfriend' in question actually was. Actual serious side-effects can happen, but I'm not able to find any obvious cases where that happened involving AidAccess.
That is, as often highlighted, a series of questions for the jury. Which seems unlikely to ever happen. Louisiana issued an extradition request for Coeytaux, who resides in California. The governor has given a precise and formal response:
In theory, this is settled law: since 1987, there are extremely limited grounds to refuse extradition, and 'don't like the public policy of the state in question' isn't one of them. In practice, the New York doctor from the case where a pregnant minor was alleged forced to abort a pregnancy she wanted to keep wasn't extradited, either.
Somewhat counterintuitively, this is probably a better defense as an individual in a criminal case than a civil one. For civil trials, not showing up just gets you a default judgment. The confrontation clause strictly limits American criminal trials in absentia; there are a few rare exceptions if someone stops showing up (or needs to be removed from court) once the trial has started with them present, but none before then. Of course, that just kicks the can down the road one step: I don't think anyone would be happier if Louisiana just gave abortion providers civil liability that requires Knuth's Up-Arrow Notation to write down, then arrested them when they showed up for their day in court for the criminal trial.
SCOTUS has original jurisdiction over lawsuits between two states. There is not, as far as I can tell, a Louisiana v. New York or Louisiana v. California docket on this question.
Trans vs. Detrans
The Atlantic reports:
Sorry, that's as close to left-leaning coverage as I can find without getting unmoored from the facts (compare the New York Times tries to reframe it as mere miscommunication). Most coverage in serious detail seems to be from right-wing sources speaking to right-wing readers, including the reporter that The Atlantic is highlighting here.
As do the facts of the case. Varian's situation does seem to have been on the harder end -- both in terms of what procedures happened when, and in the rhetoric from medical professionals justifying them. When WPATH advocates think you need to slow things down a notch, and are willing to testify so in court, you're gonna have a bad time. Benjamin Ryan has a list of other detransitioner (or -adjacent) cases, and it's a single page, and most of them are either more complicated or much less clear-cut.
But, at the same time, the facts are not that extreme. The psychologist in question denies telling Varian's parents that delaying transition might result in suicide risk, but it's... hard to believe that, given its prevalence as a topic of discussion. WPATH's advocate says that the doctors in question were pushing too hard and too fast, but the process here didn't actually breaking any explicit rules from the most recent WPATH SoC. It's hard to get numbers on how many trans people get a masectomy or orchidectomy before the age of 18 -- most eyepopping numbers of 'surgeries' include laser hair removal -- but Varian near-certainly isn't the only one.
And those distinctions matter, because a lot of trans-skeptical people have been pointed to this lawsuit as the first pebble in an avalanche. Whether people who aren't already trans-skeptical even hear about it, and whether there are other pebbles, control some part of that avalanche.
Because ultimately, to medical insurers, a couple million here and there only starts being 'real money' in plural. Successful lawsuits against psychologists are rare, but medical lawsuits are not, and doctors don't stop offering a procedure because of a single misuse or serious side effect, even far worse ones. Moreover, there's an opposing force: depending on who's in charge of the government, it can violate federal law to not act, with a bunch of fun questions when those regulations change after the action or inaction happens. Failure to treat or medical discrimination lawsuits are harder to bring as an individual, but they're not implausible concerns, either.
More broadly, because of how market forces work, I'm skeptical that the trans-skeptical position clears the board even of the specific matter of minors undergoing large-scale surgery, without using either regulatory force, persuading the other side, or completely delisting trans-related care from medical assistance. At the same time, they're likely to consider it a major victory every marginal clinic that drops the service, and every person they dissuade. And, on the flip side, there's some obvious countermanuevers that are going to come down the beltway soon enough.
The problem with that idea is that by forcing the doctors to provide treatment, politicians will be taking ownership of the entire scandal. Which can be fine if the treatment is actually good for people, and the odd malcontent is just a result of occasional incompetence or weird allergies. If, on the other hand, it's bad, politicians will have tied their own rope.
The idea reminds me of some Reddit post I saw, where transgenders were gloating that their doctor got around some red state ban by using the ICD code for an endocrine disorder, instead of gender dysphoria. Good for them, I guess. I totally can't imagine how this could come back and bite the doctor in the ass.
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To my eyes, far bigger than this case itself was the announcement that came a few days later, when the American Society of Plastic Surgeons recommended against carrying out gender-affirming procedures on people under the age of 19.
With the exception of hormone therapy which falls under the domain of endocrinology, almost everything we call "gender-affirming care" falls under plastic surgery. When the body in charge of that discipline is recommending against gender-affirming care for minors, that does indeed suggest we've hit an inflection point. And it's not just the US, with the UK and several Scandinavian countries also hitting pause on this prolonged experiment.
I'll caveat that the Position Statement specifically constrained to:
This would still leave some 'surgeries' (like laser hair removal) or surgeries on the table, and the median 16-18-year-old trans person is afaict going to be focused more on them. And there's definitely a lot of the endocrinology stuff that's Controversial. But it might not stop there, and yes, that's likely to have a larger impact in the short term.
I mean, I don't think even the TERFiest TERFs really have any objection to 16-year-olds undergoing laser hair removal, even if it's nominally under the auspices of "gender-affirming care".
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