Latest https://reason.com/latest/ Fri, 25 Nov 2022 19:50:49 -0500 en-US hourly 1 https://wordpress.org/?v=6.1.1 © Reason 15 https://d2eehagpk5cl65.cloudfront.net/wp-content/themes/reason-dot-com-theme/dist/images/./smartformat-logo_23b612f3.png https://d2eehagpk5cl65.cloudfront.net/wp-content/themes/reason-dot-com-theme/dist/images/./smartformat-logo-inverted_fd43ce36.png Question for Mastodon Users https://reason.com/volokh/2022/11/25/question-for-mastodon-users/ https://reason.com/volokh/2022/11/25/question-for-mastodon-users/#comments Sat, 26 Nov 2022 00:50:49 +0000 https://reason.com/?post_type=volokh-post&p=8213013 Mastodon of course lets you interact with people from any other Mastodon servers; but it also has features that make it easier for you to interact with people from the same server. If you use Mastodon, do you find that you take advantage of these local-interaction features? Or do you mostly just interact with your followers and the people you follow, regardless of what server they're on?

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Teaching math through World Cup soccer https://reason.com/volokh/2022/11/25/teaching-math-through-world-cup-soccer/ https://reason.com/volokh/2022/11/25/teaching-math-through-world-cup-soccer/#comments Fri, 25 Nov 2022 22:03:07 +0000 https://reason.com/?post_type=volokh-post&p=8213009 Now that the U.S. has played England to a draw in the World Cup, it's a good opportunity to use FIFA rules to calculate how many games there have to be in a World Cup.

1. The group stage

First, we have a group stage, where the 32 qualifying teams are placed in 8 groups 4, and in each group, the 4 teams play each other round-robin (i.e., each team plays each other team); each team gets points that way (e.g., 3 for a win, 1 for a draw), and the two teams with the highest number of points in each group advance to the knockout stage. (Because teams can be tied on points, this relies on a number of tiebreaker rules.)

In a round-robin tournament, the number of ways of populating "X plays against Y" when there are n teams is n × (n–1), because you can put n teams in the first spot and n–1 teams in the second spot (because "England plays England" isn't a thing). But when you do that, you're double-counting, because "England plays the U.S." is counted differently than "The U.S. plays England". So we'll just divide by 2, and get n(n–1)/2.

In general, this is the combinatorics concept called "n choose k", where (n,k) = n!/[(n–k)!k!]; here, we're using "n choose 2", which is just equal to n(n–1)/2.

Anyway, that means each group of 4 has 4×3/2 = 6 games, and since there are 8 groups, that makes 8×6 = 48 games.

2. The knockout stage

Next, we have a knockout stage, where the 16 teams are reduced to 1. This is a single-elimination tournament, where the loser in any game is immediately eliminated. (Unlike in the group stage, you can't have ties in individual games, so this requires a way of producing a winner in each individual game, e.g., sudden death overtimes and penalty kicks.)

When the number of teams is a power of 2, then it's easy to produce brackets—and it's easy to check that with 16 teams, you get a winner with 15 games (i.e., 8 games in the round of 16, plus 4 games in the quarter-final, plus 2 games in the semi-final, plus 1 final game, and 8 + 4 + 2 + 1 = 15). But you can always produce a bracket with a non-power of 2 by using some number of byes.

So, you can ask, how many games would you need in general in a single-elimination tournament if there are n games, where n isn't guaranteed to be a power of 2? You can try creating a sample bracket and counting up the number of games, but how do you know that's the best bracket design? Could you do better? Now what if I gave you a very large number of teams, like 693? Are you going to test out various brackets?

This has long been one of my father Vladimir's favorite logic puzzles. You can cut this particular Gordian knot by observing that, when you have n games, eliminating down to 1 necessarily requires eliminating n–1 participants, and in a single-elimination tournament, playing 1 game necessarily eliminates exactly 1 participant. So the number of games is exactly n–1. If you start with 693 teams, you'll always play exactly 692 games to get a winner.

(There might still be better and worse designs of brackets: for example, the design "A plays B, and then the winner of that game plays every single other team sequentially" is probably not the best design, because then you'll be expecting the best team to play 692 games while every other team only plays 1… and if the worst team happens to play on the last day while the best team is having a bad day, you might get a perverse result. Better to approximate the power-of-2-type brackets, where every team plays up to approximately the log-base-2 of the number of teams (rounding up), and nobody wins unless they've played approximately that number of games (rounding down). But still, as far as the total number of games is concerned… the best bracket and the worst bracket will have exactly the same number of games.)

Anyway, to eliminate 16 teams down to 1, just apply the n–1 rule, and you get 15 games.

3. The third-place contest

But wait a minute, we still have one more game to play. FIFA happens to have a "third-place playoff" game: while the winners of the two semifinal games advance to the final (and are defined as first-place and second-place), the losers of those two semifinal games play one additional game (and are defined as third-place and fourth-place).

Thus, in the 2018 World Cup (which was played in seven different Russian cities), the semifinals involved France vs. Belgium (won by France) and Croatia vs. England (won by Croatia). In the final, France played Croatia (France won), but before that game, Belgium played England (Belgium won).

Now, strictly speaking, this isn't really an accurate ranking, because how do we know that Croatia is #2 while Belgium is #3? What if France and Belgium were the top 2 teams, while Belgium and England would have been ranked #9 and #10 out of the 16 teams in the knockout stage (but the brackets were arranged in such a way that the good teams were all on top but the bad teams were all on the bottom)? There's a sloppiness in defining the final-loser as #2 and the winner-of-semifinal-losers as #3. But hey, everyone likes rankings, even if they're inaccurate.

4. Putting it together?

Putting it all together, we get 48 games in the group stage, plus 15 games in the knockout stage, plus an extra game to determine third place, which makes 64.

Why not just play round-robins, which irons out the effects of having bad days and gives you a more scientific estimate of who's the better team? (Neither system is perfect: single-elimination puts a lot of emphasis on not having bad days, while round-robin involves arbitrary win-to-draw point ratios, e.g., 3:1 for FIFA and 1:0.5 for chess.)

Turns out that, because the round-robin rule is n(n–1)/2, the number of round-robin games you'd have to play increases as the square of the number of teams. With 32 teams, you'd have 32×31/2 = 496 games. That's a lot more than 64!

If you have T = nk teams and you divide those teams into k groups of n, you get kn(n–1)/2 games, but since k = T/n, you can express that as T(n–1)/2 games. With T = 32 and n = 4, that's another way of getting to 32×3/2 = 48 games for the group stage. So, holding the number of teams constant, we're basically linear in the number-of-teams-per-group. We could minimize the number of games by making n = 2, i.e., 16 games (32 games total when you add in the knockout stage and third-place game), i.e., just making it single-elimination all the way back. Or we could maximize the number of games by making n = 32 and actually playing those 496 games.

FIFA has chosen an arbitrary number of groups and then an arbitrary place to start the knockout stage, which gives us 64, a nice compromise between 32 games and 496.

The post Teaching math through World Cup soccer appeared first on Reason.com.

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What's the Original Public Meaning of "Searches" in the 4th Amendment? https://reason.com/volokh/2022/11/25/whats-the-original-public-meaning-of-searches-in-the-4th-amendment/ https://reason.com/volokh/2022/11/25/whats-the-original-public-meaning-of-searches-in-the-4th-amendment/#comments Fri, 25 Nov 2022 20:37:19 +0000 https://reason.com/?post_type=volokh-post&p=8213006 Katz test different?]]> I recently helped put together a panel, that you can watch below, on an important question of Fourth Amendment history and law: What is the original public meaning of "searches" of "persons, houses, papers, and effects" in the Fourth Amendment? And how is the Katz reasonable-expectation-of-privacy test different?  I've been very interested in this question for a few years now, and wrote my recent article Katz as Originalism about the topic (which was in turn inspired by a few blog posts I wrote here at the Volokh Conspiracy).  I was joined by the elusive Fourth Amendment historian William J. Cuddihy, author of the massive tome The Fourth Amendment: Origins and Original Meaning 602-1791, and my colleague Andrea Roth.

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Short Circuit: A Roundup of Recent Federal Court Decisions https://reason.com/volokh/2022/11/25/short-circuit-a-roundup-of-recent-federal-court-decisions-186/ https://reason.com/volokh/2022/11/25/short-circuit-a-roundup-of-recent-federal-court-decisions-186/#comments Fri, 25 Nov 2022 20:30:52 +0000 https://reason.com/?post_type=volokh-post&p=8212853 Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Friends, the feds are proposing a new, clear-as-mud rule requiring new corporate entities to identify all owners who exercise "substantial influence over important decisions." It is believed that this will help the gov't catch out drug dealers and money launderers using shell companies to hide their misdeeds, but—we promise you—the bad guys will just shift their tactics. The actual effect of the rule will be to require law-abiding small business owners to file millions of unnecessary reports, creating a honeypot of sensitive information that hackers can exploit. IJ Senior Attorney Robert Everett Johnson has more at USA Today.

  • Environmental groups sue the EPA in 2014 for failing to consider whether a pesticide it approved complies with the Endangered Species Act. The EPA concedes it did not do so. D.C. Circuit: (2017): You guys had better get on that. EPA: Yeah, we'll get around to it. D.C. Circuit: 2022: MANDAMUSED! Finish it by next September and give us updates on your progress every 60 days.
  • In October 2018 and again in March 2019, two Boeing 737 MAX 8 aircraft crashed, killing all aboard and revealing fatal defects that lead to the planes being grounded worldwide. A class of plaintiffs sue. Oh, not about those crashes—they sue about having flown on Boeing 737 MAX 8 aircraft that brought them safely to their destinations. But if they had known about the planes' alleged deficiencies, they definitely would not have paid so much for their tickets. Fifth Circuit: Airlines don't offer customers discounts for flying on riskier aircraft; if the defects had been public knowledge, the airlines would have operated no flights on the 737 MAX 8, reducing the number of available seats and increasing ticket prices. No economic injury, no case.
  • What do you do if you want to regulate, but you don't want to actually … regulate? Maybe you give a group of private people the power to regulate their peers. That's the approach Congress took in a 2020 law that gave a private association power to regulate the horseracing industry, including the power to promulgate rules, investigate violations, and impose penalties. Fifth Circuit: And that violated the cardinal rule that private parties cannot wield gov't power.
  • Man caught entering U.S. from Mexico convicted of unlawful reentry (having been deported twice before). District court: Though its predecessor, the Undesirable Aliens Act of 1929, violated equal protection, Congress's deliberation and enactment of more recent versions of the statute cured the prior discriminatory taint. You're sentenced to 30 months in prison and three years of supervised release, the latter of which allows you time to appeal the conviction. Fifth Circuit: Can't base the term of supervised release on the timing for an appeal.
  • To mitigate the economic effects of COVID-19, Congress throws a boatload of cash at the states but says they can't use the money to "directly or indirectly offset a reduction" in taxes. Ohio (in one lawsuit) and Kentucky and Tennessee (in another) claim the "offset" is unconstitutional. In response, Treasury says most tax cuts are OK as long as the total amount of spending doesn't decrease. Sixth Circuit: And because of this "credible" clarification, Ohio's suit is moot. Sixth Circuit: And so (over a dissent) is Kentucky's. But Tennessee's isn't because it will have more paperwork. And that means we can say Congress was unconstitutionally vague. (The Sixth thus splits with the Eighth Circuit, which found that Missouri lacked standing.)
  • Allegation: Weeks after Columbus, Ohio officers say man fled from traffic stop, he's arrested at his home (on Thanksgiving) and jailed for five days. Yikes! The man's roommate, who doesn't look anything like him, had borrowed his car on the night in question. The officers just looked up the car owner's photo and put his description in their report. Sixth Circuit (unpublished): "Officers lying about the basis for probable cause is the kind of 'obvious' rights violation that does not demand a catalog of factually similar cases." Moreover, "[a]n officer does not need to be on notice of a specific kind of lie he is prohibited from telling." That said, there is a case on point. No qualified immunity.
  • Plaintiffs: These Michigan counties illegally retain the surplus value of homes sold to enforce tax liens, so we sue them! Insurance company (for one of the counties): Our policy doesn't require us to cover these claims, so we sue you right back! Sixth Circuit: You can't sue somebody who hasn't asked you to do anything just because you want a declaration that you won't have to pay for a judgment they might someday perhaps obtain against a third party.
  • Illinois subscriber to Good Housekeeping finds her personal information has been sold to data miners without her permission. She sues Hearst Communications for violating the Illinois Right of Publicity Act. Seventh Circuit: The Act doesn't ban selling the personal information ("Here's everything we know about Elizabeth"), it bans using the personal information to sell things ("Elizabeth from Illinois thinks our subscriber data is the best!"). No claim.
  • Younger-abstention aficionados will know that the federal courts' overreliance on the so-called "Middlesex factors" has aged like fine milk in the decade since the Supreme Court's decision in Sprint Communications, Inc. v. Jacobs. Eighth Circuit: So why are the parties' briefs in this Younger-abstention appeal "focused almost entirely on the Middlesex factors"? Pish posh. No Younger abstention. The case—a challenge to Stone County, Mo.'s vacation rental rules—may proceed.
  • Citizen of El Salvador illegally came to the U.S. when a minor and over the next few years "accumulated a fairly lengthy criminal record." After an arrest in 2018, he's placed in removal proceedings. He asks to be let out on bond; is denied. Fourteen months later, and still in removal proceedings, he asks for another bond hearing. Does he have a due process right to the second hearing because his proceedings have been "prolonged"? Ninth Circuit: Not under the standard balancing test. Concurrence: This guy might have won if James Madison's views of immigrants had prevailed. Too bad John Marshall's did instead. Dissent: The test says yes.
  • Plaintiffs who allege they are the heirs to owners of beachfront Cuban properties that were nationalized after the 1959 revolution sue … U.S. travel websites? Indeed! The sites allow one to secure lodging at resorts the Cuban gov't built on the stolen land, and in 1996 Congress created a private cause of action allowing suits against folks who knowingly traffic in expropriated property. (The cause of action had been suspended by successive presidential decrees until 2019.) Eleventh Circuit: The district court has jurisdiction over the defendants and the plaintiffs have standing. Case undismissed.
  • And yet, says the Eleventh Circuit, a man suing cruise lines that use commercial waterfront property in Cuba that was confiscated from plaintiff's cousin's brother in 1960 cannot recover because he inherited his interest in the property in 2000, which is after 1996. Concurrence: Which is indeed the outcome the statute requires, but it sure looks like a case of sloppy drafting.
  • And in en banc news, the Ninth Circuit will not reconsider its decision upholding the Mandatory Repatriation Tax of the Tax Cuts and Jobs Act of 2017, which requires investors in foreign companies to pay taxes on unrealized investment gains. Four judges dissent, arguing that the tax is an unapportioned direct tax that exceeds Congress' power under the 16th Amendment, which applies only to realized income.
  • And in amicus brief news, IJ is asking the Second Circuit to rule that an officer pointing a gun at someone who is compliant and nonthreatening is by itself a clearly established Fourth Amendment violation. Earlier this year, a federal district court granted qualified immunity to an NYPD officer who pointed his gun at a school teacher (at a traffic stop) because the officer did not also make verbal threats or physical contact.
  • And in more amicus brief news, IJ is asking an Indiana state trial court put a stop to a troubling new trend: the state—acting through a private prosecutor—conducting civil forfeitures in virtual secrecy by redacting basic information (including the names of the defendants, descriptions of the property being forfeited, and nearly all of the probable-cause affidavit required by state law) on court documents. That violates Indiana Supreme Court rules requiring openness in judicial proceedings and also the state's civil forfeiture statute, which requires prosecutors to publicly report the very data that's being withheld.

Judges can authorize a search of your home. But they aren't supposed to personally supervise the search themselves. Indeed, that's what a federal district court ruled recently, denying absolute judicial immunity to a Raleigh County, WV family court judge who forced her way into IJ client Matthew Gibson's home under threat of arrest so that his ex-wife could remove some disputed property, including DVDs and an umbrella stand. (The judge forbade Matthew from filming the search, which she conducted barefoot.) Now, IJ is asking the Fourth Circuit to uphold the district court's ruling. Click here to learn more. Or click here for a lovingly crafted podcast episode on the history of judicial immunity.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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Brits Battle Bureaucrats https://reason.com/2022/11/25/brits-battle-bureaucrats/ https://reason.com/2022/11/25/brits-battle-bureaucrats/#comments Fri, 25 Nov 2022 15:00:35 +0000 https://reason.com/?p=8212813 greengrow

Ealing Studios is best known for the comedies made at its London facilities in the aftermath of World War II. The cycle began with Hue and Cry (1947), which celebrates the street culture of unsupervised children playing in bombed-out buildings, and it continued for a decade. Many of these movies combined a cozy community spirit with bitingly anti-authoritarian satire; they are films about people who trust their neighbors and family but are ready to revolt against any larger institution that starts encroaching on their lives. In Passport to Pimlico (1949), a London neighborhood discovers that it is technically an independent enclave and thus is free of rationing and other restrictions. In Whisky Galore! (1949), a Scottish village conceals a freighter's worth of whiskey from the Home Guard. In The Man in the White Suit (1951), corporate and union bureaucrats unite to suppress a useful invention because it threatens their bottom line. When you hear the phrase "Ealing comedy," these are the sorts of stories the speaker means.

But the spirit behind these motion pictures wasn't limited to Ealing. Elsewhere in England, other filmmakers were drinking from the same well; their movies may not have been as good as the best Ealing efforts, but they were still entertaining, and they had the same political edge. Here are two of them.

First up is Green Grow the Rushes (1951), based on a novel by Howard Clewes, directed by Derek Twist and written by Twist and Clewes. Like Passport to Pimlico, this features a semi-independent enclave ("Unfortunately, Fitchwick, these marsh people refuse to recognize any authority—they claim to have some ridiculous charter from some old king granting them independence"); like Whiskey Galore!, it culminates with a village conspiring to conceal contraband liquor from the government. If James C. Scott had written light comedies instead of political treatises, he might have made a movie like this. My favorite line comes at the end, when an official harrumphs: "These people don't deserve to be governed!"

The second half of our double feature is The Happy Family (1952), based on a play by Michael Clayton Hutton; it was scripted by Muriel and Sydney Box, with Muriel doubling as director and Sydney as producer. In this one, the authorities plan to demolish a family's home and shop so the government can build an entrance to the upcoming Festival of Britain. The family responds by barricading the property and hurling canned goods at the invaders. (Aficionados of transpartisan politics will appreciate the anti-statist alliance between the old-fashioned dad and his daughter's rabble-rousing radical fiancé.)

It isn't a flawless picture—the sudden resolution feels a bit anticlimactic—but it's a solidly good one; I can't embed it in this post, but you can watch it here. If the movie has a manifesto moment, it's the line right before the 46-minute mark, when Stanley Holloway's character offers a toast "to living quietly and being left alone, and not being led about like sheep."

(For past editions of the Friday A/V Club, go here. Mark Doyle has described The Happy Family as a precursor to Muswell Hillbillies, the Kinks' concept album on the evils of eminent domain; to read my appreciation of that record, go here.)

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Mystified by Mastodon? We're Here To Help. https://reason.com/2022/11/25/mystified-by-mastodon-were-here-to-help/ https://reason.com/2022/11/25/mystified-by-mastodon-were-here-to-help/#comments Fri, 25 Nov 2022 14:00:24 +0000 https://reason.com/?p=8212855 Mastodon app on phone with Twitter logo in background

For years we've been hearing from folks in government that Twitter is a monopoly—in need of government regulation to either cut it down to size or enable alternatives. This has never been true, as there are both established alternatives (Facebook, Reddit, Snapchat, Instagram, etc.) and newcomers (TikTok, Gab, Parler, Truth Social, Clubhouse). In light of the many alternatives already available, the recent rise of Mastodon is not that surprising.

But Mastodon's peculiar setup and history make it both an unlikely heir apparent to an imploding Twitter and an appealing one.

Founded in 2016, Mastodon has been chugging along quietly for years until Elon Musk's Twitter takeover spurred sudden mass interest in the decentralized social media service. Monthly active users are now up 576 percent, to 2.5 million, according to the Mastodon website.

Want to get on Mastodon (or at least understand what all the hubbub is about)? Here's what you need to know.

How Mastodon Works

In many ways, Mastodon works a lot like Twitter. It's a text-dominant "micro-blogging" platform designed for short posts and real-time interaction. Users create basic profiles, follow other users, and see posts from those they follow in their Mastodon feed.

But there are also a lot of differences—the biggest being that a single, centralized entity doesn't run Mastodon. Instead of one corporation owning, maintaining, and setting the rules for all of Mastodon, it consists of thousands of independent servers—or "instances"—that share the same open-source code.

These servers are run independently by individuals or groups and come with their own sign-up policies, privacy policies, codes of conduct, and other rules. Some Mastodon servers are open to anyone, some are invite-only, and some you can apply to join. Some are more general, while others are organized around a particular region, interest, profession, or common theme. For instance, Liberdon bills itself as "a Mastodon instance for libertarians, ancaps, anarchists, voluntaryists, agorists, etc." Federated.press says it's "a Mastodon instance for all who pursue the journalistic ethic." Epicure.social is "a Mastodon community with a food and wine focus." And so on.

When first joining Mastodon, you pick a particular server to join. You can search for servers on the Mastodon app or find a list of many of them here. You might seek a server whose content moderation policies you find most agreeable or one based on your interests. But don't sweat this decision too much—users can switch servers anytime and take their followers. More importantly, you can still follow and interact with people on other servers no matter which server you join.

Essentially, Mastodon is a federation of independent but interconnected servers. It's common to see Mastodon users refer to it as the "fediverse."

For the most part, folks in one part of the Mastodon fediverse can see and interact with folks in all other parts of the Mastodon fediverse. But there are some exceptions. A server may block one or multiple other servers from access for various reasons. (For instance, several servers are reportedly blocking the journa.host server.) Users from a blocked server are then unable to see posts from or interact with users on a server that has them blocked.

How to Create a Mastodon Account

To create a Mastodon account, go to joinmastodon.org or download the Mastodon app on your phone from the Apple App Store or the Google Play store. You'll be asked to pick a server first, and then choose a username and fill out some basic information.

On Mastodon, your username combines a name you pick with the server you're on (so, for instance, I'm @enbrown@journa.host).

Some servers will let you join instantly (and start posting right away), while others servers have administrators review applications before approval.

How to Use Mastodon

Once you have a Mastodon account, you can post and view posts using the Mastodon app on your phone, a desktop app (Whalebird and Hyperspace are two popular ones), or by visiting your server's URL. Some server URLs have Mastodon in the name (i.e., mastodon.pirateparty.be) while others do not (i.e., indieweb.social).

You can choose various privacy levels for posts, including public, unlisted (similar to public but not appearing in public timelines), only to your followers, or direct (only to people mentioned in the post).

To "tweet" on Mastodon used to be called to "toot," but Mastodon recently changed this to "publish," and many people simply refer to things as "posts."

How Mastodon Is Different

There are no ads; server operations are funded privately or through crowdfunded donations.

Posting large video or image files is discouraged since server space is limited and operated by groups at their own expense or through donations.

There are no algorithms—something Mastodon users often mention as a selling point, though that really depends on your perspective. (I, for one, tend to prefer an algorithmic feed when it's done right). Instead, you see posts from those you follow in chronological order or, if you toggle to different tabs, a running chronological feed of things posted by everyone on your server or on your server and all servers it knows.

There is no centralized verification process or symbol on Mastodon. But on your profile page, you can prove your own identity by verifying that you're affiliated with web pages that you link to. By inserting a line of code on those sites (your professional portfolio page, for instance), your mastodon links will show up as verified.

There's no way to search for posts by keyword, and there are no quote tweets. Again, these are features that Mastodon users tend to tout as benefits (they make it less easy to create some toxic patterns and pile-ons that define Twitter), although their utility depends on your perspective. Things like this can also make Mastodon less compelling and/or less useful, especially if you're the type to use Twitter to follow news on particular topics, to kill time following strangers' drama, or to find commentary on a specialized subject.

Hashtags do work, however—and are used more liberally on Mastodon than on current Twitter since it's the only way to get posts to a wider audience of users following a particular topic.

Mastodon also features some things Twitter users often pine for, like longer character limits (up to 500 characters) and an ability to edit posts after they're published.

But there is no threading, no in-app article or video views, and no preview of any links shared, all of which make the experience less seamless and possibly less useful from a promotional standpoint.

Mastodon also provides users with the ability to put content warnings on posts so that someone scrolling past will only see the warning at first and have to click through to see the content. This feature has been getting a lot of mockery on Twitter, but it's also something that many on Mastodon seem to use and appreciate. Whether it's used frequently or not in your Mastodon circles will largely depend on the norms of your particular server and/or communities.

This brings us to two central points about Mastodon. First, people are still very much figuring out how to use it and what the norms are. Yes, it's been around for a while, but it attracted relatively niche audiences. The influx of new users in recent weeks is shaking up all sorts of things in the fediverse. Second, Mastodon provides a lot of room for different experiences. As a decentralized platform with greater customization potential, Mastodon users will have a less uniform experience than your average Twitter user.

Notes of Caution

On Mastodon, there's no separate section for seeing direct messages between users. To directly message someone using the web version of Mastodon, you go to their profile, click the three little dots in the top right corner, and click the option to message them directly. These direct posts are theoretically only for the eyes of you and whoever is mentioned in them, but they technically could be viewed by your server's administrators. So any particularly sensitive or scandalous information you might want to save for sharing elsewhere. The Electronic Frontier Foundation has more on Mastodon privacy policies and concerns here.

P.S. I asked Mastodon users what newcomers should know. Here are a few responses:

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Hayek Was a True Liberal https://reason.com/2022/11/25/hayek-was-a-true-liberal/ https://reason.com/2022/11/25/hayek-was-a-true-liberal/#comments Fri, 25 Nov 2022 13:30:22 +0000 https://reason.com/?p=8192525 a portrait of F.A. Hayek next to the word liberal

Too many on the left think of the Nobel Prize-winning economist Friedrich Hayek as "conservative," or at best "neoliberal." But Hayek was no conservative. He was a liberal, no "neo" about it. A new biography, Hayek: A Life, by the historians of economic thought Bruce Caldwell and Hansjörg Klausinger, tells the story of his first five decades in 824 pages of mind-stunning detail.

Hayek was a leader in the third generation of the so-called Austrian School of economics. Worldwide now, though a minority view, it did originate in Austria. Starting in the 1870s, the founder Carl Menger developed and defended a radical improvement in the English liberal economics of Adam Smith, David Ricardo, and J.S. Mill.

The opponents of liberalism in Menger's time were devotees of an echt German "historical school," which admired the coercive masters of old and recommended new ones. In the U.S., opponents of liberal Austrian economics were called institutionalists—they sought to impose institutions, whether you like it or not. So too nowadays do neo-institutionalists such as Douglass North and Barry Weingast and Daron Acemoglu.

The Austrian School of Menger, Ludwig von Mises, Hayek, Israel Kirzner, Murray Rothbard, and now Peter Boettke recommends instead that we stick with pretty good spontaneous orders. They arise all over the place from masterless people interacting as they do in, say, the English language, German music, American Wikipedia, Dutch friendship, French cuisine, and the world economy. Except in totalitarian countries like the one Xi Jinping fantasizes about, most of life occurs outside the state. How often, after all, do you enforce a contract in the state's courts? 

So Hayek and the Austrian School are liberal, in a modern world lurching between the fatal conceits of left and right. On the left nowadays Acemoglu and James Robinson, and more radically Thomas Piketty and Mariana Mazzucato, recommend a bigger and bigger state. They promise it will be a very nice one, you understand. On the right Donald Trump and Vladimir Putin recommend a bigger and bigger state. They make no such promises about niceness. They envision a state of the sort that Hayek opposed in Russia and then in the German lands, growing up with Viennese antisemitic politics and the street violence of Weimar Germany next door. We liberals stand apart from the usual spectrum, recommending as Hayek did a competent but small state, liberty with love.

The peculiarly American term for such a worldview is libertarianism. The usage delivers liberal over to the social democrats. Hayek and I disapprove. True liberalism adopts instead the strange and wonderful idea arising suddenly by happy accident in northwestern Europe during the 18th century that the ancient hierarchies of husband and master and king should not stand. Ordinary people were to be treated for the first time like adults. Such a liberalism could be called adultism.

In their biographical volume, which covers 1899–1950, Caldwell and Klausinger tell everything about Hayek's youth you wanted to know but were afraid to ask. From his happy childhood in Vienna and foolhardy service as a junior officer in the Austrian army on the Italian front, he went during the 1920s to university and then a research job with Mises. He shifted in his commitments from a sentimental socialism to an intellectual liberalism. So did numerous leftish intellectuals during the 20th century—Leszek Kołakowski, Robert Nozick, Thomas Sowell. I did too, though not as rapidly as Hayek did. The old joke is that if you are not a socialist at age 16, you have no heart. If you are still a socialist at age 26, you have no brain.

Hayek was partly converted as early as age 23 by Mises' 1922 book Die Gemeinwirtschaft (Collectivized Economy; published in English in 1936 as Socialism). "I had already grown very skeptical [of central planning]," he wrote, perhaps from watching the Austrians and the Italians do utterly incompetently what states are primarily formed to do, waging bloody war. Some in my generation drew the same lesson from the blood of Vietnam. Yet, like me and many others, Hayek could not for a long time fully embrace what he already knew: "I would not have said then—as I do now—that socialism is not even half right, but totally wrong."

My own conversion book was Nozick's 1974 Anarchy, State and Utopia. Back in college a dozen years earlier my roommate Derek and I, majors in the Keynesian economics on offer then, sneered loftily at our electrical engineer roommate David for reading Mises' 1949 Human Action. David, relaxing from solving second-order differential equations, would light up an unfiltered Gauloises cigarette, lean back in his office chair, and perch the old Yale Press edition on his knees. If I had not sneered but read, I would have saved at least a dozen years—more like the 30 or so it took me to grasp much of the Austrian contributions to economics, especially in its theory of markets and discovery.

Caldwell and Klausinger move through Hayek's unhappy first marriage, his rejection of Viennese antisemitism, his teaching at the London School of Economics in its creative decade of the 1930s, and his composing in the 1940s The Road to Serfdom. In April 1945, that work was condensed in a famous issue of Reader's Digest for 5 million subscribers and given free to millions of soldiers. In the harsh pro-socialist climate of the time among the intelligentsia, the book ruined Hayek's then-lofty reputation as an academic.

In 1947, he led the first Mont Pelerin meeting of the handful of anti-socialist liberals, at the high point of world socialism. Hayek served as the president of this alarming discussion group of professors from 1947 to 1961, as he turned from technical economics to political philosophy, where he at length rebuilt his reputation—but those developments await the reader in Volume 2.

That volume, to be co-authored by Klausinger and the brilliant Bulgarian-German Stefan Kolev, will have to find its way through conflicting accounts of Hayek's controversial statements on Chile and his interactions with Augusto Pinochet. (Yet the Chicago Boys, so often unfairly tarred with the sins of that Chilean strongman, were mainly taught price theory at the University of Chicago by a liberal named, uh, McCloskey.) That volume will tell of his The Constitution of Liberty (1960), his depression when he realized that few were listening, and his rise to world prominence after the Nobel Committee smiled. The Committee likes to pair opposite candidates, in a characteristically nonfunny Swedish joke. So it awarded the glittering prize in the same year to Hayek and to the Swedish socialist Gunnar Myrdal.

In 1960, Hayek wrote a persuasive appendix to his own big tome, The Constitution of Liberty, explaining "Why I Am Not a Conservative." (That didn't stop the conservative National Review from ranking it ninth among the 100 best books of the century.) Hayek noted that the political right wants to coerce us to construct a fantastic version of a lovely past and the left wants to coerce us to construct a fantastic version of a future heaven. We liberals do not want to coerce anyone. And we don't like fantasies.

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Slander Suit After "Two Wealthy … Men … Got Into a Fistfight While Trick or Treating with Their Families" https://reason.com/volokh/2022/11/25/slander-suit-after-two-wealthy-men-got-into-a-fistfight-while-trick-or-treating-with-their-families/ https://reason.com/volokh/2022/11/25/slander-suit-after-two-wealthy-men-got-into-a-fistfight-while-trick-or-treating-with-their-families/#comments Fri, 25 Nov 2022 13:01:00 +0000 https://reason.com/?post_type=volokh-post&p=8212998 From Justice Brian Hofstadt's opinion Wednesday in Kaplan v. Gimelstob, joined by Justices Victoria Chavez and Patricia Benke:

In a display that a trial court characterized as "junior high and high school" conduct, two wealthy, middle-aged men—one [Gimelstob] a former professional [tennis player, and later a coach and "broadcaster, producer, talent representative, and brand ambassador"] and the other [Kaplan] a venture capitalist—got into a fistfight while trick or treating with their families on Halloween night 2018. The men have now moved their spat into the court system….

Gimelstob and Kaplan were friends for a while, but their relationship soured when Kaplan got upset because Gimelstob did not show up to his birthday party….

{Consistent with the applicable standard of review governing anti-SLAPP motions, we set forth [the following] facts in the light most favorable to Kaplan, as the nonmoving party.} On Halloween night in 2018, both Gimelstob and Kaplan were out trick or treating in Brentwood, which is an upscale neighborhood on the west side of Los Angeles, California. Kaplan was with his wife and their two-year-old daughter; Gimelstob, with his girlfriend and his five-year-old son. Gimelstob was dressed up as "Maverick" from Top Gun.

As Kaplan's wife and child were watching, Gimelstob "ambushed" Kaplan from behind and—"unprovoked and entirely without warning"—knocked Kaplan to the ground. Gimelstob mounted Kaplan's prone body, and proceeded to punch him 50 to 100 times. The attack lasted three minutes and ended only when a passerby pulled Gimelstob off of Kaplan….

The Los Angeles County District Attorney charged Gimelstob with committing a battery inflicting serious bodily injury, which is a crime that can be charged as a felony or a misdemeanor. The District Attorney charged it as a felony.

After the trial court expressed its tentative inclination to reduce the offense to a misdemeanor if Gimelstob entered a plea to the charge as a felony, the court allowed Kaplan and Kaplan's wife to read their victim impact statements to the court. While Kaplan was speaking, Gimelstob repeatedly shook his head and said "not true," made facial expressions and otherwise engaged in "demonstration[s] of frustration," tried to get the trial court judge's attention, and glanced back at the press assembled in the courtroom gallery.

Given what the trial court perceived to be petulant and sophomoric antics by Gimelstob while Kaplan spoke, the court expressed concern that Gimelstob did not really want to accept responsibility for the charged crime and might be better suited to proceed to trial on the felony battery charge. After Gimelstob assured the court that he wanted to accept responsibility for the crime, Gimelstob entered a no contest plea to the battery crime as a felony. Consistent with its prior indication, the trial court then reduced the felony to a misdemeanor, and placed Gimelstob on probation for three years; as conditions of probation, Gimelstob was ordered to complete 60 days of community labor and take a one-year anger management course. Gimelstob thereafter was ordered to pay Kaplan $15,204.42 in restitution, which was comprised of $268 to replace the clothing Kaplan was wearing during the incident, $875 for medical expenses, $2,325 for physical therapy, and the remainder for mental health therapy….

On January 19, 2021, Gimelstob appeared on a tennis-focused podcast entitled "Control the Controllables," which was hosted by Dan Kiernan. The host asked Gimelstob for "the truth" about the Halloween 2018 incident. In response, Gimelstob stated:

  • He "neither provoked [n]or initiated any incident that evening," either "verbally or physically." According to Gimelstob, it was Kaplan who "initiated physical contact," and only after Kaplan "engaged and initiated" did Gimelstob lose "restraint." Consistent with Kaplan being the aggressor and assailant, Gimelstob stated that there was "absolutely not 100ths of the damage" Kaplan had reported suffering; this was confirmed, Gimelstob pointed out, by the police report, in which the police had checked a box indicating "no physical damage." Gimelstob nevertheless bragged—not once, but twice—that he "got the better" of Kaplan in the fight. Gimelstob characterized his plea to the felony battery crime as the "legal system" "[u]nfortunately" "hav[ing] its blind spots," including Marsy's Law allowing "a victim … to say whatever they want."
  • Kaplan had "threatened to help [Gimelstob's] ex-wife take custody of [his] son," which included "l[ying]" and "misrepresenting" the truth about the altercation as part of their joint "mission to manipulate … the legal process."

Gimelstob lamented that he had "lost everything" due to the Halloween 2018 incident and its fallout, but said, "you know what? It just makes for a better comeback." …

Kaplan sued for slander, arguing [in relevant part]:

  • Gimelstob had falsely accused Kaplan "of committing an assault upon him" on Halloween 2018, while falsely denying that Gimelstob was responsible for the attack and that Kaplan had "suffered any injuries in the assault."
  • Gimelstob had "falsely accused Kaplan of conspiring with Gimelstob's ex-wife to 'manipulate the legal process' to damage Gimelstob." …

Gimelstob filed an anti-SLAPP motion to strike … Kaplan's slander per se claim. In support of his motion, Gimelstob submitted declaration and deposition testimony (given in Gimelstob's dissolution case) from himself, from his girlfriend, and from Kaplan's former housekeeper. This testimony paints a very different picture of what happened on Halloween 2018: Kaplan approached Gimelstob, and told him, "I heard your dad just dropped dead and he was an even bigger asshole than you." Shocked and angry, Gimelstob asked Kaplan, "What the fuck is wrong with you?"

After Kaplan walked away, Gimelstob ran to catch up to Kaplan and demanded to know, "What is your fucking problem with me?" When Kaplan responded, "Fuck you" and pushed Gimelstob "hard in the chest," Gimelstob responded by "clotheslin[ing]" Kaplan with his "left arm" and thereby knocking Kaplan down to the grass, where the two got into a "wrestling scrap" as Gimelstob sat astride Kaplan "swinging" his fists for 20 to 30 seconds. In support of his motion, Gimelstob also included the police report from the incident. Although the report noted that Gimelstob had "approached victim from behind, [and] punched [him]," the reporting officer also checked the box for "no serious injury to victim."

Kaplan opposed the motion. In support of the opposition, Kaplan submitted a declaration laying out his version of what happened during the Halloween 2018 incident (and his wife submitted a similar declaration), as well as the fact that he had spoken with Gimelstob's ex-wife only on the night of the incident as well as once before in the prior five years; on neither occasion, Kaplan attested, had he "coordinate[d] or conspire[d]" with her "to help her custody case or cause harm to" Gimelstob.

The Court of Appeal concluded (I oversimplify here slightly) that the trial court was correct to deny the anti-SLAPP motion, and to allow Kaplan's claim to go forward, because "his slander per se claim had the minimal merit necessary to withstand dismissal under the anti-SLAPP statute":

Both statements made by Gimelstob on the podcast qualify as slander per se because they "[c]harge[]" Kaplan "with [a] crime." … With regard to the Halloween 2018 incident, Gimelstob stated that he "neither provoked nor initiated" and it was Kaplan who "initiated physical contact," and that it came to blows that Kaplan exaggerated. Because the only other participant in the melee was Kaplan, Gimelstob's statements insinuated that Kaplan provoked and initiated a "fight" that involved an exchange of punches. The conduct Gimelstob attributes to Kaplan constitutes both an assault and a battery. Gimelstob contends that he never used the words "assault" or "battery" and only accused Kaplan of "initiat[ing] physical contact," but this contention ignores the context of his statement and rests upon precisely the type of "'hair-splitting analysis of language'" that the courts have rejected.

With regard to Kaplan's coordination with Gimelstob's ex-wife, Gimelstob stated that the two were on a "mission to manipulate … the legal process," including through "l[ying]" and "misrepresent[ation]," to obtain a court order granting "custody of [Gimelstob's] son" to his ex-wife. This constitutes the crime of "conspir[ing]" to "[f]alsely … maintain any suit, action, or proceeding." …

Because slander does not reach "privileged" statements (§ 46), a person's statements that fall within the so-called "litigation privilege" are not actionable. The litigation privilege applies to any communication made in a judicial or quasi-judicial proceeding that (1) is made by authorized participants, (2) is made to achieve the objects of litigation, and (3) has a logical connection to the action. Gimelstob's statements regarding the Halloween 2018 incident and Kaplan's alleged conspiracy with his ex-wife are not covered by the litigation privilege because Gimelstob published those statements during a podcast wholly divorced from any litigation….

Kaplan also made a prima facie factual showing that Gimelstob's statements on the podcast were false. Both Kaplan and his wife offered declarations recounting that Kaplan did not assault or batter Gimelstob; rather, they declared, it was Gimelstob who engaged in an "unprovoked attack" by "ambushing" Kaplan from behind and without any prior "interaction or discussion" between the two men. Kaplan also declared that he did not "coordinate or conspire" with Gimelstob's ex-wife "to help her custody case or to cause harm to Gimelstob," and only contacted the ex-wife on the night of the assault "to obtain information relative to Gimelstob's whereabouts and state of mind," such as whether he possessed a gun…. Kaplan only needed to show that the claim has "minimal merit," and this standard views the evidence through a prism friendly to the plaintiff/nonmoving party…. [T]he conflicting evidence Gimelstob offers does not defeat Kaplan's evidence "'"as a matter of law"'" …

Congratulations to Matthew G. Kleiner, Norvik Azarian, and Scott W. McCaskill (Gordon Rees Scully Mansukhani), who represented plaintiff.

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Some Loudmouth Politicians Are Finally Wearing Out Their Welcome https://reason.com/2022/11/25/some-loudmouth-politicians-are-finally-wearing-out-their-welcome/ https://reason.com/2022/11/25/some-loudmouth-politicians-are-finally-wearing-out-their-welcome/#comments Fri, 25 Nov 2022 13:00:02 +0000 https://reason.com/?p=8212924 Donald Trump

In one typically funny Monty Python sketch, author Oscar Wilde walks into a drawing room and says something pithy to the Prince of Wales: "Your Highness, there is only one thing in the world worse than being talked about, and that is not being talked about." Bystanders laugh for an extended time in a sycophantic manner.

Wilde says something else and, again, he evokes laughter. Once again, Wilde says something similarly inane, but suddenly he faces stunned silence. The Python troupe apparently was poking fun at an incident in Wilde's career, but I thought of the skit in the context of Donald Trump and the midterms.

First, we have a former president who can think of nothing worse than not being talked about. Second, I'm reminded of how Trump continues to make, er, unusual comments that for years have evoked thunderous applause, but suddenly fewer people find them funny anymore. Something changed after the GOP's electoral flop.

After Trump gave his big speech on Tuesday, most networks and even Fox News downplayed the rambling talk. The New York Post—a reliably pro-Trump publication—featured this headline at the bottom of its front page: "Florida man makes announcement." Buried on Page 26, the Post published a brutal short item under the headline, "Been there, Don that."

"With just 720 days to go before the next election, a Florida retiree made the surprise announcement that he was running for president," the article explained. "Avid golfer Donald J. Trump kicked things off at Mar-a-Lago, his resort and classified-documents library." Ouch.

Perhaps Trump Fever finally has broken, which is encouraging after digesting the substance of his speech. He championed law-and-order themes that are inappropriate in a constitutional republic. He vowed to restore public safety by sending the military into cities even if cities don't want the "help."

Trump even touted China's model for handling drug dealers: "If you get caught dealing drugs, you have an immediate and quick trial. And by the end of the day, you're executed." Our Constitution assures due process for anyone accused of a crime. Only under totalitarianism can someone be accused of a crime, judged, and executed on the same day. That's childish posturing, not serious policy.

Nationally, Trump was the biggest loser on Election Day, even though he wasn't on the ballot. Fortunately, voters rebuked other politicians with a similarly un-American sense of justice. Los Angeles County voters gave the heave-ho to Sheriff Alex Villanueva. They chose former Long Beach Police Chief Robert Luna, who seems like a normal reform-oriented lawman, by a 60-percent to 40-percent margin.

Unlike Trump, Villanueva at least conceded defeat. But his concession speech contained all the whiny, self-focused blather we've come to expect. "Every adversity I've faced throughout my years in law enforcement has always propelled me to a bigger stage, a bigger audience and a bigger voice," he said. He certainly has a big voice, but perhaps voters had grown as tired of it as they've grown of Trump's.

As NBC News reported, Villanueva "blamed defeat on what he claimed was a sweeping misinformation campaign and the use of 'false narratives' focused on issues including alleged deputy gangs, his alleged resistance of oversight by the county and Civilian Oversight Commission and other allegations of internal harassment and retaliation against purported whistleblowers."

In April, Villanueva held a press conference where he pointed to a photo of a Los Angeles Times reporter and hinted that she may be a target in a criminal-leak investigation. He later relented, but instead of being observably concerned by the Times' reported allegations that "sheriff's officials attempted to cover up an incident in which a deputy knelt on the head of a handcuffed inmate for three minutes," he harangued the reporter.

Then there are the deputy-gangs allegations. Some deputies "have been accused of celebrating police brutality, intimidating and retaliating against fellow deputies, and running a shadow hierarchy that operates outside the chain of command," per LAist.

Deputy gangs undermine trust in law enforcement and could violate citizens' rights, but Villanueva calls them "cliques" and claims to have handled the problem. He defied subpoenas to testify and viewed the allegations as a political smear. He seemed unconcerned that some of his deputies may sport tattoos with alleged gang names such as Banditos and Executioners.

"I don't expect deputies to get tattoos of Hello Kitty," he said during a re-election kickoff event. "These are grown men and women and the tattoos they put on themselves. That's an expression of their First Amendment right." Wow.

Is it any wonder voters chose Luna, an outsider who has vowed to rid the department of gangs and insist on professional behavior? For a while, the public laughed at the tawdry things Villanueva and Trump have been saying about criminal justice. No more. The only thing better than watching them lose, however, is to watch better people take their place.

This column was first published in The Orange County Register.

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Today in Supreme Court History: November 25, 1757 https://reason.com/volokh/2022/11/25/today-in-supreme-court-history-november-25-1757-4/ https://reason.com/volokh/2022/11/25/today-in-supreme-court-history-november-25-1757-4/#comments Fri, 25 Nov 2022 12:00:26 +0000 https://reason.com/?post_type=volokh-post&p=8178824 11/25/1757: Henry Brockholst Livingston's birthday. He dissented in the property law classic, Pierson v. Post (NY 1805).

Justice Henry Brockholst Livingston

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Brickbat: Lesson Learned https://reason.com/2022/11/25/brickbat-lesson-learned/ https://reason.com/2022/11/25/brickbat-lesson-learned/#comments Fri, 25 Nov 2022 09:00:24 +0000 https://reason.com/?p=8212428 Gun, handcuffs and books

The Indiana State Police are investigating after a Vermillion County Sheriff's Office deputy accidentally shot a student at South Vermillion High School. Deputy Tim DisPennett was conducting a law enforcement class, and students were doing a scenario drill when DisPennett fired his weapon. The student, who wasn't identified by the media, was taken to the hospital with non-life-threatening injuries.

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Happy Thanksgiving! https://reason.com/volokh/2022/11/24/happy-thanksgiving/ https://reason.com/volokh/2022/11/24/happy-thanksgiving/#comments Thu, 24 Nov 2022 19:10:52 +0000 https://reason.com/?post_type=volokh-post&p=8212995 It's easy to take for granted all the good things we have—in our family lives, in our professional lives, in our nation, in the world—and focus on the bad. I hope that today all of you have much to be thankful for, as I very much do myself, and enjoy celebrating it.

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Thursday Open Thread https://reason.com/volokh/2022/11/24/thursday-open-thread-111/ https://reason.com/volokh/2022/11/24/thursday-open-thread-111/#comments Thu, 24 Nov 2022 16:25:04 +0000 https://reason.com/?post_type=volokh-post&p=8211915 The post Thursday Open Thread appeared first on Reason.com.

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The Promise of Living… https://reason.com/volokh/2022/11/24/the-promise-of-living/ https://reason.com/volokh/2022/11/24/the-promise-of-living/#comments Thu, 24 Nov 2022 15:44:12 +0000 https://reason.com/?post_type=volokh-post&p=8212982

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Sick of the Pilgrims? Celebrate Roger Williams Instead https://reason.com/2022/11/24/sick-of-the-pilgrims-celebrate-roger-williams-instead/ https://reason.com/2022/11/24/sick-of-the-pilgrims-celebrate-roger-williams-instead/#comments Thu, 24 Nov 2022 14:58:19 +0000 https://reason.com/?p=8212688 Roger WIlliams statue

While the Thanksgiving holiday is normally spent in memory of the semi-mythical 1621 feast between recently arrived Puritans and local Native Americans, a settler who arrived a decade later is a much better-suited hero for the more liberty-minded among us.

Roger Williams, known best as the founder of Rhode Island, was a Puritan minister, an early advocate for the separation of church and state, and, as writer Sarah Vowell describes in her 2008 book on the early Massachusetts Bay Colony, "a fully-formed crank, a man whom even Puritans dismiss as a tad too fanatical."

However, Vowell has a soft spot for the oft-zealous minister—one I and many other libertarians share. As she writes, despite William's eccentricity and fanaticism, "He is nevertheless principled, self-confident, forthright, and true to himself."

While many early Puritan colonists can stake a claim as the most influential upon the American spirit—from John Winthrop and his "city on a hill" to the enduring cultural sticking power of the Plymouth colonists—Williams, in my view, surpasses them all. Not only did his commitment to individual religious freedom influence the stridently secular government we have today, but he also modeled a classic American troupe—the liberty-loving weirdo.

In contrast to the theocratic magistrates of the 1630s Massachusetts Bay Colony, Williams was not just a religious rebel—but a political one too. While others argued that theological unorthodoxies should result in state-sanctioned punishment, Williams disagreed. Instead, while he believed along with his fellow Calvinists that religious dissenters and most of the faithful might be hell-bound, he asserted that it's not the job of the government to set them on the righteous path.

This apparently outrageous concept, along with a series of other idiosyncratic theological disputes (let's just say there was a lot of pamphleteering involved) resulted in Williams—and by extension, his 12 children—getting booted out of Massachusetts Bay in 1636. It was wintertime, so the magistrates kindly offered to delay William's banishment for a few months, on the condition that he lay low and pipe down with those crazy ideas of his. But never one to be careful with fire when a bridge was around, Williams completely ignored this directive. More preaching got him expelled from the colony in the middle of January.

Williams thankfully managed to escape certain death in the frozen New England wilderness due to the kindness of the local Wampanoag tribe. However, come springtime, Williams decided to form a new settlement, one where his, as fellow Puritan John Winthrop put it, "diverse, new, and dangerous opinions" could thrive.

This new settlement, called "Providence Plantations," was built on land that, according to Vowell, Williams received as a gift—not conquered—from leaders of the local Narragansett tribe. "It was not price or money that could have purchased Rhode Island," Williams later wrote. "Rhode Island was purchased by love."

The colony was governed by an altogether different set of rules than the other Puritan-run settlements that dotted New England. Rather than exercising religious authority over citizens, the government of Providence pertained exclusively to "civil things," making it possibly the first place in modern history with a separation of church and state.

The settlement would eventually grow to welcome a whole host of theological misfits, from Quakers, to Jews, to my other favorite Puritan crank, Anne Hutchinson. Hutchinson had also found herself (and, like Williams, her double-digit litter of children) kicked out of Massachusetts Bay in 1638 after preaching too much for a woman (especially of the "God-talks-directly-to-me" variety). In fairness, Williams thought all these people—except maybe Hutchinson—were doomed for eternal hellfire. But as he saw it, punishing for theological wrongheadedness was a job fit only for God himself.

Williams was a unique character in America's early colonial history. Driven by, above all else, a fierce devotion to a demanding God, Williams was nonetheless unwilling to use that devotion to justify punishing dissenters. Ironically, one of the most stridently zealous Puritans ended up building one of the world's first secular governments.

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Come Next Thanksgiving, We Might Be Giving Thanks for Government-Approved, Lab-Grown Turkey https://reason.com/2022/11/24/come-next-thanksgiving-we-might-be-giving-thanks-for-government-approved-lab-grown-turkey/ https://reason.com/2022/11/24/come-next-thanksgiving-we-might-be-giving-thanks-for-government-approved-lab-grown-turkey/#comments Thu, 24 Nov 2022 13:30:13 +0000 https://reason.com/?p=8212785 A cultivation room at Upside Food's EPIC facility

People concerned about the ethics of eating meat, but still eager to participate in the typical Thanksgiving feast, might not have to choke down tofurkey for too much longer.

That's thanks to the efforts of nascent "cultivated meat" companies plugging away at the seemingly impossible task of creating real meat without the associated death and environmental damage. Seemingly more impossible still, regulators are starting to smile on the new industry's mission.

This past week, the U.S. Food and Drug Administration (FDA) (boo, hiss) completed its first-ever premarket consultation of cultivated chicken produced by Upside Foods. The agency declared that the Berkeley, California, company's process for producing lab-grown chicken from harvested live chicken cells resulted in meat that was safe for human consumption.

Pending approval from the U.S. Department of Agriculture (USDA), the company will be able being able to bring its cultivated chicken to market.

"We're in early days but the FDA greenlight is the opening of the floodgates," says Eric Schulze, Upside's vice president of regulatory and public policy. "Any meat that is commonly consumed as food, we are working on."

Schulze tells Reason that Upside can produce anywhere from 5,000 to 400,000 pounds of cultivated meat at its Engineering, Production, and Innovation Center (EPIC) production facility in the Bay Area city of Emeryville, California.

It's at the EPIC facility that the company takes small cell samples of live animal muscle, fat, and sinew tissue and sticks them in large, stainless-steel tanks where they're "fed" with water, sugar, amino acids, and other basic nutrients.

"They're grown in what looks very similar to I'd say a beer brewery or dairy operation-looking facility," says Schulze. "The goal of the entire process is to take that one cell that we've identified and grow trillions of cells."

Upside Foods' plan is to soon migrate to a commercial facility capable of producing up to 15 million pounds of cultivated meat, poultry, and seafood for sale in restaurants and grocery stores.

The budding cultivated meat industry's pitch is that it can produce a product with the same taste and nutritional value as normal meat, but without necessarily having to kill any animals. Growing meat in labs will also theoretically cut down on land needed for farms, and all the emissions and natural habitat destruction that come with them.

There are currently 42 cultivated meat companies operating in the U.S., although Upside remains the only one with any sort of government sign-off. Singapore has approved two products from one cultivated meat company. There are 151 cultivated meat companies globally, according to the Good Food Institute (GFI).

Madeline Cohen, a regulatory attorney with GFI, says that the FDA and USDA have been pretty transparent in terms of regulatory requirements that cultivated food companies have to meet in order to bring their products to market.

In 2019, the two agencies inked a joint agreement for how they'd regulate cultivated meat products.

The FDA is responsible for giving premarket verification that the processes used by cultivated meat companies create meat safe for human consumption. This is something it already does for pharmaceutical products, but generally not for foodstuffs.

The USDA is then responsible for inspecting the actual facilities and regulating the labeling of cultivated meat, poultry, and catfish products (cultivated seafood remains the exclusive domain of the FDA).

Labeling is what presents the largest regulatory risk to the industry, says Cohen.

A number of states have already passed laws restricting what plant-based and cultivated meat companies can call their products, often with the explicit intent of protecting traditional meat producers.

"Some of those laws carry stiff penalties that can be pretty financially ruinous for a company if they're facing a penalty per product per day," says Cohen. Complying with these laws isn't always easy either.

Large-scale food distributors are often regional, meaning that food producers don't necessarily know in which states their products will end up being sold.

"If you need to keep a certain product out of Missouri or you need a certain label on a cultivated meat label, you'll probably need to use the same label in the entire region so that one of your products never ends up in Missouri," Cohen says.

Such labeling laws in Louisiana and California have been successfully challenged on First Amendment grounds.

How they'll end up being labeled at the federal level remains to be seen. The FDA and USDA are still in the process of crafting standards for cultivated meat products. The USDA has said that it will approve labels on a product-by-product basis until it finalizes more formal regulations.

That doesn't give companies a lot of certainty when trying to bring products to market.

At the moment, a lot of these regulatory headaches are mostly theoretical. As mentioned, Upside is the only company to be nearing the ability to put its products in front of consumers.

Schulze says that Upside's chicken will first be served in restaurants, before hopefully making its way to grocery stores.

On when people might be feasting on cultivated turkey for Thanksgiving, he declined to make any predictions.

"I think 2023 is going to be an interesting year," says Schulze. "we'll have the first cultivate meat product on the market competing against traditional meat."

So maybe by next Thanksgiving, a trendy restaurant somewhere can serve up turkey leg while leaving the turkey it came from still standing.

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Friendsgiving Is Cultural Flourishing, Not Cultural Decay https://reason.com/2022/11/24/friendsgiving-is-cultural-flourishing-not-cultural-decay/ https://reason.com/2022/11/24/friendsgiving-is-cultural-flourishing-not-cultural-decay/#comments Thu, 24 Nov 2022 13:00:25 +0000 https://reason.com/?p=8212685 Thanksgiving dinner

Today, I'm one of the millions of Americans who will be celebrating Thanksgiving with friends instead of family.

It's not that I don't love my family. They just live hundreds of miles away in St. Louis. I'll instead be heading to downtown Los Angeles and hanging out with a whole bunch of other gay men. Some, like me, have families they adore but are perhaps separated from because they live in the city. Others, though, have been rejected by their families. And some are older men whose families have passed on, and they are not among those LGBT folks who have started families of their own now that gay marriage is legal.

We will all be celebrating what has become known as "Friendsgiving," which as far as I can tell, is mostly a marketing term. Merriam-Webster traced the first use of the word on the internet to 2007 and added it to its dictionary in 2020. A Google search today will lead to "trend" stories that are essentially brand-driven exercises in marketing food and recipe choices. Don't consider this a complaint—capitalism is awesome. My point is that my downtown group is not an outlier; Friendsgiving has a large market.

Friendsgiving is a relatively new term, but it's not a new concept. People who have been deprived of family (either by circumstance or by choice) have been gathering for their own Thanksgiving observances for decades.

In the case of my downtown group, we are a chosen family. We spend a significant amount of time together and take care of each other in some ways that conventional families take care of each other. We even somehow on Thanksgiving in 2017 got into the stereotypical big-dinner-table fight over then-President Donald Trump. (It turned out that one of us had voted for him.) I even got to say, "Don't blame me, I voted for Gary Johnson."

We are thankful for the support we provide each other, especially considering the current culture war that seems to have landed some folks back into lamenting the state of the family and the general secularity of our culture surrounding the fall holidays.

Concepts of freedom and liberty don't just apply to our relationship with our government but also our social decisions. Freedom and liberty allow for the cultural truth that each person's relationship to community is going to be different, and that it's not some sort of sign of cultural decay. That people seek out nonfamily communities during major cultural holidays is not an anomie—a breakdown of standards or connection to the world. It is, in fact, the opposite. It is an embrace of our social well-being, of our need to spend time with each other. Even among the most conservative or cultural traditionalists, concepts like Friendsgiving should be acknowledged as a valid tool for preserving and growing community ties.

And those ties may eventually lead to love connections that start new families. Again, it's not an either/or scenario where we have to choose between family and some sort of lesser, not-real family. For those who don't have family to turn to, Friendsgiving is a way to being and remaining part of a community, not some poor substitute for family or a sign that society's gone wrong.

Enjoy whomever you're with today, and be thankful if you actually had the liberty and freedom to choose to spend the time with them.

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Today in Supreme Court History: November 24, 2001 https://reason.com/volokh/2022/11/24/today-in-supreme-court-history-november-24-2001-4/ https://reason.com/volokh/2022/11/24/today-in-supreme-court-history-november-24-2001-4/#comments Thu, 24 Nov 2022 12:00:10 +0000 https://reason.com/?post_type=volokh-post&p=8178820 11/24/2001: Salim Hamdan was captured in Afghanistan. The Supreme Court would decide his case in Hamdan v. Rumsfeld (2006).

The Roberts Court (2006)

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Brickbat: No Vacancies https://reason.com/2022/11/24/brickbat-no-vacancies/ https://reason.com/2022/11/24/brickbat-no-vacancies/#comments Thu, 24 Nov 2022 09:00:22 +0000 https://reason.com/?p=8212421 Empty apartments

San Francisco voters have approved a measure that will tax the owners of some vacant housing units. Starting on Jan. 1, 2024, landlords who own three or more units that have been vacant 182 days in a given tax year will be taxed between $2,500 and $5,000 per unit. That would increase over time to $20,000 if the units remain vacant. Single-family houses and duplexes will be exempt from the tax.

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Be Thankful for Low-Skilled Workers https://reason.com/2022/11/24/be-thankful-for-low-skilled-workers/ https://reason.com/2022/11/24/be-thankful-for-low-skilled-workers/#comments Thu, 24 Nov 2022 05:01:07 +0000 https://reason.com/?p=8212939 A grocery store worker is seen holding a pumpkin pie

On Thanksgiving, we rightly give thanks. And let's be clear that, amid all the turmoil that consumes daily headlines, we Americans do indeed have a lot to be thankful for. We are still relatively free. We are also incredibly prosperous—a prosperity that would be impossible without uniquely talented and driven entrepreneurs and the courageous investors who back them. But this year I want to give special thanks to those workers we call "low-skilled."

They may not have acquired the know-how or years of education possessed by the people you see on TV, or by academics, tech gurus, or financial-market whizzes. But low-skilled workers are nevertheless among the unsung heroes of our lives.

Before I begin, I want to challenge an increasingly popular fallacy. It has become a talking point of the political left to insist there are no such thing as low-skilled workers. Rep. Alexandria Ocasio-Cortez (D–N.Y.) for example, tweeted earlier this year that "the suggestion that any job is 'low skill' is a myth perpetuated by wealthy interests to justify inhumane working conditions, little/no healthcare, and low wages." Many have since jumped on the bandwagon to make the same point. But it's utter nonsense.

If simply calling workers "low-skilled" allowed employers to underpay and overwork them, then every worker in America would be labeled as such and paid a pittance, including professional sports stars and neurosurgeons.

Now to be fair, a lot of the confusion comes from the sloppiness of the term. We tend to lump together entry-level jobs with jobs that don't require much of an education, or with jobs that require hard skills but no formal education. These are very different types of jobs, and they offer very different prospects to those doing them. The term is also complicated by the fact that some of these workers haven't yet acquired the skills necessary to perform more specialized tasks. Plenty of 16-year-olds who mop up spilled milk in supermarkets and mow people's lawns will learn to weld, program computers, or perform brain surgery. In a few years, with more education, they may very well become high-skilled.

While it shouldn't be controversial to say that some workers have fewer job skills than others, there aren't any "no-skilled" workers. In fact, many of the jobs we casually describe as "low-skilled" require important skills, know-how, and gumption. Does anyone truly believe that there isn't special knowledge and practice involved in being a nanny, a prep cook, a gardener, or carpenter's helper? Most college graduates couldn't do these jobs, either because we don't know how (proving that the jobs really require different skills) or because such work is typically terribly hard.

Identifying the workers who currently have the least valuable set of workplace skills isn't part of some scheme to perpetuate a myth; it's simply a way of speaking about, although imprecisely, a reality. That some members of Congress are oblivious to this is evidence of low-skilled thinking (or perhaps high-skilled politics).

While some on the left insist that it's wrong to assume some jobs truly are low skill, some on the right assume that low-skilled workers are somehow undesirable and worth demeaning, especially when these workers come from poor foreign countries. But this, too, is nonsense.

Close your eyes for a second and imagine what your life would be like if, overnight, all workers employed in these fields disappeared. It would be a disaster. Indeed, whether we acknowledge it or not, all of us benefit from these workers busting their butts at work, stocking shelves, picking fruits and vegetables, cleaning homes and hospitals, delivering food, watching kids at day care or home care, and so much more.

These are people who showed up for this country when the economy was shut down by the government, working in jobs labeled "essential." Your local grocery store wasn't kept open during that time by the computer class who stayed comfortably at home. Low-skilled workers were the ones who prepared your food, delivered it and kept the economy going as much as possible. And we all feel the pain right now as others have failed to return to work, leaving millions of jobs unfilled.

More important, many of these workers are part of our families. They care for our children, allow us to work and get promoted, and are an essential part of what makes our lives comfortable. So, on this Thanksgiving, we need to forget the policy and political divides and simply give thanks to these workers without whom our lives would be lesser.

COPYRIGHT 2022 CREATORS.COM.

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Court Rules Against The Gateway Pundit's Request for Press Pass https://reason.com/volokh/2022/11/23/court-rules-against-the-gateway-pundit-in-request-for-press-pass/ https://reason.com/volokh/2022/11/23/court-rules-against-the-gateway-pundit-in-request-for-press-pass/#comments Wed, 23 Nov 2022 22:12:01 +0000 https://reason.com/?post_type=volokh-post&p=8212942 From today's decision in TGP Communications LLC v. Sellers by Judge John Tuchi (D. Ariz.):

TGP is an online news and opinion publication. Founded in 2004, TGP has developed a large readership and now averages more than two- and-a-half million readers daily. It describes itself as "a trusted news source for the stories and views that are largely untold or ignored by traditional news outlets." Mr. Conradson is a reporter with TGP who covers Arizona politics. Neither TGP nor Mr. Conradson are shy about their libertarian conservative political leanings. Mr. Conradson testified that his favorite political party is the Republican Party "but I wear that on my sleeve." He noted that his readers understand his political views: "everybody who reads my work knows that I am very transparent about it."

On September 27, 2022, Mr. Conradson applied for credentials to attend press conferences given by Maricopa County officials and to access certain County facilities. The County requires reporters to obtain such credentials—a "press pass"—in order to attend press conferences at, or otherwise enter, the Maricopa County Tabulation and Election Center ("MCTEC") and the tenth floor of the County Administration building in Phoenix, Arizona.

Roy Fields Moseley, the Communications Director for the County, explained that the County instituted the press-pass requirement in light of logistics and security concerns. For example, the Board of Supervisors' conference room on the tenth floor of the County Administration building can accommodate approximately 50 seats for reporters; after the extensive media interest in the 2020 election in Maricopa County, Mr. Moseley testified it was fair to say that they were anticipating there would be a lot more people wanting to attend press conferences. He also testified that there were security issues at MCTEC after the 2020 election, including an incident in which

[s]everal people were not members of the media but perhaps might say they are, but they are not what we would call news reporters. They managed to follow legitimate news crews into the lobby of MCTEC. This was a security concern. They had to be removed. There was a large crowd gathered outside and we didn't want a repeat of that type of situation when we came up on 2022.

The County also has installed temporary and permanent fencing at MCTEC, where the Maricopa County Sheriff's Office maintains security.

Reporters can apply for a press pass through a page on the County's website. The webpage states that "[t]he official press pass will allow members of the press to attend news conferences or enter the Elections Department's office to conduct interviews, take photos, and/or video." The webpage states that the County evaluates "member of the press" based on the following criteria:

  1. Is the person requesting press credentials employed by or affiliated with an organization whose principal business is news dissemination?
  2. Does the parent news organization meet the following criteria?
    1. It has published news continuously for at least 18 months, and;
    2. It has a periodical publication component or an established television or radio presence.
  3. Is the petitioner a paid or full-time correspondent, or if not, is acting on behalf of a student-run news organization affiliated with an Arizona high school, university, or college?
  4. Is the petitioner or its employing organization engaged in any lobbying, paid advocacy, advertising, publicity, or promotion work for any individual, political party, corporation, or organization?
  5. Is the petitioner a bona fide correspondent of repute in their profession, and do they and their employing organization exhibit the following characteristics?
    1. Both avoid real or perceived conflicts of interest;
    2. Both are free of associations that would compromise journalistic integrity or damage credibility;
    3. Both decline compensation, favors, special treatment, secondary employment, or political involvement where doing so would compromise journalistic integrity; and
    4. Both resist pressures from advertisers, donors, or any other special interests to influence coverage.

This list is not exhaustive. The time, manner, and place limitations or needs of any one event may require consideration of additional factors.

Mr. Moseley testified that a team of eight County employees reviews press pass-applications, which must receive two "yes" votes to be approved.

On September 30, 2022, three days after Mr. Conradson applied for a press pass, the County notified him by email that his application was denied. The email stated that he was denied based on the following criteria: "You (a) do not avoid real or perceived conflicts of interest and (b) are not free of associations that would compromise journalistic integrity or damage credibility. Therefore, you are not a bona fide correspondent of repute in your profession." When asked to summarize, in his words, why Mr. Conradson was denied a press pass, Mr. Moseley testified that it was "because he doesn't avoid real or perceived conflicts of interest. If you look at his social media or his articles, they not only present a conflict. He doesn't seek the truth and his articles have led to direct threats to Board of Elections officials and employees."

To support the allegation about threats, the County points to Reuters articles stating that TGP was cited in highly threatening communications directed at County election employees. The County further cites to a TGP article by Mr. Conradson alleging that a County employee deleted files from the County's Elections Management Server—allegations the County denies. In the article, Mr. Conradson included the employee's name and photograph. According to one of the Reuters articles, readers left highly threatening comments about the employee in the comments section of the article. Mr. Conradson testified that he was "not aware that people got threats as a result of something I wrote."

The September 30, 2022 denial email stated that Mr. Conradson could appeal the decision by sending a reply email "stating the reasons it should be reconsidered." It also stated that "any press conference about the 2022 Election will be streamed to a Maricopa County YouTube channel and you are welcome to view it." On November 10, 2022, Mr. Conradson sent a reply email appealing the County's decision. In his email, Mr. Conradson stated that the denial violated his rights under the First Amendment and that "I will be coming in shortly to attend a press conference and receive my credentials."

The court rejected (at least at this stage, which involved a request for a temporary restraining order) plaintiff's argument that the rule was unconstitutionally vague:

Plaintiffs argue that the two criteria under which the County denied a press pass to Mr. Conradson—that he neither "avoid[ed] real or perceived conflicts of interest" nor remained "free of associations that would compromise journalistic integrity or damage credibility"—are facially unconstitutional because they fail to make sufficiently clear "what conduct is prohibited." The Court is unpersuaded at this juncture.

As an initial matter, the County has not "prohibited" reporters such as Mr. Conradson from the conduct described in the criteria, at least not in the sense of triggering any kind of civil or criminal penalties. Rather, the press-pass criteria are just that—a set of standards by which the County determines whether to grant reporters access to events and facilities that, although "public" in the sense that they are maintained for the benefit of the community, are not open to the general public as a matter of right. Moreover, the criteria that Plaintiffs challenge are only two among several characteristics of journalistic practice that the County considers. These criteria should be considered in the context of the press- pass scheme as a whole.

Undercutting Plaintiffs' argument is the fact that the County drew its press-pass criteria directly from the criteria used by the Office of the Governor of Wisconsin, which were in turn based on standards used by the Wisconsin Capitol Correspondent's Board and in the United States Congress. The Seventh Circuit upheld the constitutionality of these same criteria just last year. John K. MacIver Inst. for Pub. Policy, Inc. v. Evers (7th Cir. 2021) ("MacIver"). Seventh Circuit did not consider a vagueness challenge in that case, the court of appeals nonetheless provided detailed analysis of these criteria, indicating that their meaning is not as elusive as Plaintiffs suggest.

Regarding the first challenged criteria, Plaintiffs question whether it is sufficiently clear "what an actual conflict of interest could be for a journalist." They further argue that "it is impossible to determine how a journalist may avoid being perceived to have a conflict of interest." Conflicts of interest are familiar to the legal system. It is true that what constitutes a conflict of interest is less obvious in the journalism context—for one thing, journalists do not have clients with discernable interests in the way that lawyers do. However, the Society of Professional Journalists' ("SPJ") Code of Ethics uses the term, indicating that the term has broadly understood meaning among practicing journalists. Plaintiffs' expert, Professor Gregg Leslie, testified that conflicts of interest in the journalism context would include, for example, reporting favorably on a publicly traded company while owning stock in that company. {The Court references the SPJ's Code of Ethics as evidence only of the use and meaning of the terms in the County's criteria within the journalism community. Plaintiffs' expert, Professor Gregg Leslie, noted that the Code was not intended to establish legally enforceable rules of journalistic practice; the Code itself states that it "is not, nor can it be under the First Amendment, legally enforceable." The point is well taken.}

The County urges and employs a broader interpretation of the term that includes a reporter such as Mr. Conradson reporting on issues for which, and candidates for whom, he also advocates. There is therefore some merit to Plaintiffs' argument about a lack of consensus as to the meaning of a conflict of interest in the journalism context. But there is reason to believe that the County's interpretation is not an outlier. For example, the Arizona Senate's Media Rules state that applicants for media credentials "must not be engaged in any lobbying or advocacy, advertising, publicity or promotion of any individual, political party, group, corporation, organization or a federal, state or local government agency …."

Turning to the second challenged criteria, Plaintiffs question what it would mean to be "free of associations that would compromise journalistic integrity or damage credibility." As before, there is reason to believe these terms are more broadly understood than Plaintiffs suggest. These criteria find analogue in the SPJ's Code of Ethics, which states that "[j]ournalists should … avoid political and other outside activities that may compromise integrity or impartiality, or may damage credibility." Prof. Leslie agreed that part of being a good journalist is to "stay away from anything that makes you look biased" and "don't do anything that is going to damage your credibility," although he disputed that this was anything more than a "very broad statement" and "an aspirational goal." Further, it is not clear that these criteria "authorize[] or even encourage[] arbitrary and discriminatory enforcement," given that the County granted press passes to other publications considered to be conservative-leaning, such as Fox News and Newsmax.

Thus, while Plaintiffs have validly questioned the precise contours of the County's criteria, they have not established they are likely to succeed on their vagueness claim. Law demands clarity, of which the criteria are not a perfect model. But "'perfect clarity is not required'"—even where First Amendment rights are implicated—and "'we can never expect mathematical certainty from our language.'"

The court also concluded that, when it came to access to "nonpublic County facilities and press conferences given by County officials," press pass policies need only be reasonable and viewpoint-neutral (the rule for restrictions in a limited public forum or nonpublic forum), and that these policies appeared to qualify:

The County argues that it has "a right to set criteria for allowing people to get into buildings and to attend press conferences." This must be true given the County's well-founded safety concerns and limited space. Plaintiffs do not apparently disagree in principle, conceding that the County is not required simply to let in anyone who presents themself as a journalist. With respect to the specific criteria the County employs to further these interests, the Court agrees with the Seventh Circuit's analysis in MacIver that the first three challenged criteria are "reasonably related to the viewpoint-neutral goal of increasing the journalistic impact of the [government's] message by including media that focus primarily on news dissemination, have some longevity in the business, and possess the ability to craft newsworthy stories."

The County further argues that it has "the right to set up criteria for ethical reporting," which broadly summarizes the fourth and fifth challenged criteria. This [is] a more controversial proposition, with which Plaintiffs and their expert, Prof. Leslie, strongly disagree. The Court agrees that this proposition is problematic insofar as it invites the government to play a role in policing the free press, whose constitutionally protected function is to hold the government to account.

Here, however, the County does not assert a right to establish criteria for ethical reporting to justify policing the practice of journalism, at least not directly. Rather, the County asserts this right to justify evaluating reporters' practices to determine whether to grant them access to press conferences and nonpublic County facilities and thereby further the County's legitimate interest in disseminating accurate information to the public. {For this reason, the Court is also not persuaded by Plaintiffs' argument that the press-pass criteria are akin to licensing regimes that "condition the exercise of First Amendment protected rights on 'obtaining a license or permit from a government official in that official's boundless discretion.'" The County is not requiring a license to gather news.} Cabined to this purpose, the Court agrees with the Seventh Circuit's analysis that the fourth and fifth criteria "are reasonably related to the viewpoint-neutral goal of increasing journalistic integrity by favoring media that avoid real or perceived conflicts of interest or entanglement with special interest groups, or those that engage in advocacy or lobbying." …

Nor is the Court persuaded that the County's denial of a press pass to Mr. Conradson was viewpoint-based. In short, Plaintiffs have not substantiated their claim that "[the County] used [its] unfettered discretion to discriminate against the Gateway Pundit because they do not want to be challenged by the Gateway Pundit's style of journalism." Plaintiffs suggest that the County's decision is related to Plaintiffs' reporting about former Maricopa County Supervisor Steve Chucri, but this is conjectural. They further suggest that the County discriminated against Plaintiffs because of a particular bias against Plaintiffs, pointing to Defendant Richer's retweet of a tweet hinting that the County instituted the press-pass restrictions to keep Plaintiffs out of press conferences. Such behavior may be beneath the dignity of the office, but Plaintiffs have not substantiated their claim that keeping them out was the animating reason behind the restrictions.

Finally, Plaintiffs suggest that the County discriminated against them based on their political leanings. While the County did take note of Mr. Conradson's political leanings—which the Court acknowledges is a fraught consideration—it did so in the context of evaluating whether he was free from associations that would compromise his journalistic integrity. Mr. Moseley denied that the County rejected Mr. Conradson's application based on his opinions and noted that the County has granted passes to other conservative leaning publications.

In sum, while Plaintiffs have raised thorny questions about the County's press-pass restrictions, they have not shown they are likely to succeed in arguing that the restrictions or their application in this case are unreasonable or constitute viewpoint discrimination.

Congratulations to Maricopa County Deputy County Attorneys Thomas P. Liddy, Charles E. Trullinger, Joseph J. Branco & Joseph E. La Rue, who represent defendants. For an amusing (though ultimately not successful) passage from the plaintiff's motion for a TRO, see this post.

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Pardon People, Not Turkeys https://reason.com/2022/11/23/pardon-people-not-turkeys/ https://reason.com/2022/11/23/pardon-people-not-turkeys/#comments Wed, 23 Nov 2022 21:33:20 +0000 https://reason.com/?p=8212895 Biden turkey pardon overlaid on prison image

President Joe Biden has recently made liberal use of his clemency power. The problem is that it's often more symbolic than it is practical.

That dilemma was displayed earlier this week when the president carried out the years-long, pre-Thanksgiving tradition of pardoning two turkeys outside the White House. Chocolate and Chip were the lucky recipients this year. "The votes are in, they've been counted and verified, no ballot stuffing," he said on Monday. "No fowl play."

It's a cute tradition. But I doubt it's funny to the thousands of human petitioners whose pleas still fall on deaf ears.

Biden's mass pardon last month for those convicted of simple marijuana possession under federal law is an example of all hat and no cattle. "I'm keeping my promise that no one should be in jail for merely using or possessing marijuana," he said in October. "None." There is no one in federal prison for simple marijuana possession anymore, but that was already the case before Biden issued his pardon.

Yes, thousands of people with misdemeanor records will have those convictions wiped. But not a single person was released from custody by the Bureau of Prisons due to Biden's proclamation.

It's not because there aren't candidates. Thousands of people are still serving time in federal prison for marijuana-related offenses, like distribution. Meanwhile, the Department of Justice seeks potential life sentences for people convicted of such offenses.

"I don't belong in prison any longer," Edwin Rubis, 54, told The Washington Post from federal prison. He's spent about 25 years behind bars for conspiracy to distribute cannabis and isn't projected to be released for another decade. "I might have belonged in prison when I first came in, the first two, three, four years, but I have done so many things that the system has asked me to do. I believe I'm truly rehabilitated." Rubis earned a master's in Christian counseling, has led bible studies, and is finishing his doctorate.

The president also granted three pardons and 75 commutations in April after a little over a year in office. "Although Biden waited more than 15 months before issuing any pardons or commutations, that delay compares favorably to those of many previous presidents," wrote Reason's Jacob Sullum after Biden's April announcement. "Even Barack Obama, who ultimately granted a record 1,715 commutations, did not approve any until the last year of his first term, and then just one."

Yet the presidential pardon power can and should be used more often. Not just for turkeys, but for the thousands of people serving decades due to draconian drug laws that Biden supported for most of his political career.

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Two Federal Judges Say New York's Presumptive Prohibition of Guns on Private Property Is Unconstitutional https://reason.com/2022/11/23/two-federal-judges-say-new-yorks-presumptive-prohibition-of-guns-on-private-property-is-unconstitutional/ https://reason.com/2022/11/23/two-federal-judges-say-new-yorks-presumptive-prohibition-of-guns-on-private-property-is-unconstitutional/#comments Wed, 23 Nov 2022 21:05:09 +0000 https://reason.com/?p=8212858 U.S. District Judge John Sinatra Jr.

After the Supreme Court upheld the right to bear arms last June, New York legislators perversely responded by imposing sweeping new restrictions on public possession of guns, banning them from a long list of locations. The broadest of those categories was "private property," including businesses as well as residences, where carry permit holders were forbidden to bring guns unless the owner had posted "clear and conspicuous signage" allowing them or had "otherwise given express consent."

Yesterday a federal judge issued a preliminary injunction against enforcement of that provision, which had already been blocked by another judge. Both judges said New York had failed to show that the private property rule was "consistent with this Nation's historical tradition of firearm regulation." That is the constitutional test prescribed by the Supreme Court's June 23 ruling in New York State Rifle and Pistol Association v. Bruen, which upheld the right to carry guns in public for self-defense and overturned New York's requirement that residents show "proper cause" to exercise that right.

New York's catch-all "private property" exclusion, which New Jersey legislators have copied, is one of many restrictions that U.S. District Judge Glenn T. Suddaby deemed unconstitutional in Antonyuk v. Hochul. It is the focus of the decision that U.S. District Judge John L. Sinatra Jr. issued yesterday in Christian v. Nigrelli, and it vividly illustrates how determined anti-gun legislators are to defy Bruen.

The plaintiffs in Christian include the Firearms Policy Coalition and the Second Amendment Foundation. The lead plaintiff is Brett Christian, an Erie County resident who has a carry permit but cannot make much use of it because New York has made it a felony for him to possess a handgun in many places he routinely visits. Before that law was enacted, Sinatra notes, Christian "would typically bring [his] firearm with [him] on private property open to the public, including weekly visits to gas stations and monthly visits to hardware stores." That is no longer allowed.

When Christian is "driving or running errands," he is "'unable to take any
bathroom breaks,' pick up food, or purchase gas while carrying his firearm." He
has to "disable and store" his handgun before driving or walking into a parking lot,
which means that he sometimes must "stop carrying for self-defense" before he
"can get physically close enough to see if any 'clear and conspicuous signage' exists." Because New York's law requires Christian to "constantly disarm" while engaged in quotidian activities, he is "left without the ability to defend" himself and is "suffering diminished personal safety on a frequent and ongoing basis."

That situation is not merely inconvenient. It makes a mockery of the right that the Supreme Court upheld in Bruen. While hundreds of thousands of New Yorkers are notionally allowed to carry concealed handguns for self-defense, the state has made it difficult or impossible for them to actually do that without risking prosecution.

New York "argues that private property owners have always had the right
to exclude others from their property and [therefore] may exclude those carrying
concealed handguns," Sinatra writes. "But that right has always been one
belonging to the private property owner—not to the State….Property owners indeed have the right to exclude. But the state may not unilaterally exercise that right and, thereby, interfere with the Second Amendment rights of law-abiding citizens who seek to carry for self-defense outside of their own homes."

As Sinatra sees it, the Second Amendment requires a default rule that guns are allowed on private property unless the owner says otherwise—the opposite of the rule that New York has established. That choice, New York argues, is consistent with the historical understanding of the right to bear arms. To support that claim, it cites eight colonial or state laws enacted in the 18th and 19th centuries that restricted gun possession on private property.

Suddaby addressed those purported analogs when he issued a preliminary injunction against several provisions of New York's law, including the private property exclusion, on November 7. He noted that "six of these eight laws appear to be what are called 'anti-poaching laws,' aimed at preventing hunters (sometimes only hunters who are convicted criminals) from taking game off of other people's lands (usually enclosed) without the owner's permission, which was a pernicious problem at the time." He added that "barring some people from openly carrying rifles on other people's farms and lands in 19th century America is hardly analogous to barring all license holders from carrying concealed handguns in virtually every commercial building now."

Suddaby said just two of the eight laws cited by New York "may fairly be characterized as being anything more than mere anti-poaching laws." A 1771 New Jersey law prohibited the carrying of "any gun" on another person's "lands" without the owner's "permission in writing." An 1865 Louisiana law barred people from "carrying fire-arms on the premises or plantations of any citizen" without "the consent of the owner or proprietor."

Suddaby did not think those two examples were sufficient to meet the historical test established by Bruen. "Even if these two lonely state laws could somehow be reasonably viewed as evidencing an established tradition (which the Court doubts they could)," he wrote, "they cannot be reasonably viewed as evidencing a representative one." He noted that New Jersey and Louisiana together accounted for 4.2 percent of the national population in 1870.

For many businesses, Suddaby noted, it is impractical to "give express consent to each license holder on their doorstep other than by posting a sign containing a controversial message that must (by definition) be visible to all persons passing by (including potential 'anti-gun' customers)." One of the plaintiffs in Antonyuk, for example, "runs a small hotel/bed and breakfast for guests and faces a loss of patronage" by "gun owners who wish to travel lawfully with their firearms if he does not post a sign." A sign is the only feasible way to meet New York's requirement because "it is entirely impractical to provide person-by-person 'express consent' to each individual who stops by." At the same time, such a sign is apt to alienate other potential customers.

Suddaby thinks that quandary raises a serious First Amendment issue because it arguably amounts to government-compelled speech. He concluded that the plaintiffs had "a strong likelihood of success" on that claim.

Suddaby said New York's private property rule "appears to be a thinly disguised version" of a policy the Supreme Court explicitly rejected in Bruen. In that case, New York argued that "'sensitive places' where the government may lawfully disarm law-abiding citizens include all 'places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.'" The Court objected that "expanding the category of 'sensitive places' simply to all places of public congregation that are not isolated from law enforcement defines the category of 'sensitive places' far too broadly."

Like Suddaby, Sinatra emphasizes the broad scope of New York's private property rule. "The vast majority of land in New York is held privately, and it encompasses homes, farms, businesses, factories, vacant land, hotels, parking lots and garages, grocery stores, pharmacies, medical offices, hospitals, cemeteries, malls, sports and entertainment venues, and so on," he writes. "These are places that people,  exercising their rights, frequent every day when they move around outside their homes. The exclusion here makes all of these places presumptively off limits, backed up by the threat of prison. The Nation's historical traditions have not countenanced such an incursion into the right to keep and bear arms across all varieties of private property."

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Biden's 'Buy American' Rules Are Hamstringing Infrastructure Investments https://reason.com/2022/11/23/bidens-buy-american-rules-are-hamstringing-infrastructure-investments/ https://reason.com/2022/11/23/bidens-buy-american-rules-are-hamstringing-infrastructure-investments/#comments Wed, 23 Nov 2022 20:25:41 +0000 https://reason.com/?p=8212839 A construction worker holds a STOP sign with dust and road work in the background

Some 55 million Americans are expected to pour over the nation's roads, rails, and airports this Thanksgiving weekend. Almost none of them will think—or care—about where the steel, concrete, and asphalt that's taking them from place to place was made.

And that's how it should be.

Unfortunately, federal law cares a lot about those things—and "Made in America" rules are making it more difficult and expensive to translate the recently passed infrastructure spending bill into actual infrastructure.

"The quick implementation of Buy America requirements for such a broad range of materials will cause delays in project delivery while states, contractors, manufacturers, and suppliers continue working to determine how best to track and verify these materials," Washington State Secretary of Transportation Roger Millar wrote in a letter to federal Department of Transportation officials this month. Millar, who also serves as president of the American Association of State Highway and Transportation Officials, a consortium of state-level officials, asked for the creation of a special exemption "to meet the intent of the expanded Buy America requirements while providing reasonable and practical exemptions to reduce the burden on transportation agencies."

In other words: Can we please not let a bumper-sticker slogan get in the way of effective government?

Biden has been touting tougher "Buy American" rules since the campaign trail, however, so it might be tough to get the White House to approve such a waiver. And the administration doesn't just see this as an infrastructure initiative—the White House brags about those rules being part of "a whole-of-government agenda designed to maximize the use of taxpayer dollars on domestic products and services, strengthen our industrial base, and create good-paying, union jobs for Americans."

But the bipartisan infrastructure bill passed last year is a major culprit for the issues now facing state departments of transportation. As Route Fifty, a state and local government trade publication, explains: "the law added more materials that must be produced in the United States on projects getting federal money. Before, for example, the Buy America provisions applied to iron and steel. Now, they'll apply to construction materials such as copper wiring, glass, fiber optic cable, and plastics."

There's nothing wrong with buying stuff made in America, of course. But there's nothing wrong with buying stuff made in other countries, either. And if you can get a ton of steel made somewhere else for a lower price than the same steel produced here, then you can afford to build more things. Which is, you know, the point of Biden's infrastructure bill.

Scott Lincicome, director of the Cato Institute's center for trade policy, points out that this was all completely predictable. Indeed, publications including Forbes, Bloomberg, The Wall Street Journaland Reason all warned about the problems with "Buy American" mandates before the infrastructure law was passed—but lawmakers expanded those mandates in other to fulfill Biden's campaign promises.

Higher prices aren't the only problem, however. Biden's new rules also give federal transportation officials more say over infrastructure projects, which means more layers of paperwork and bureaucracy and a slower rate of infrastructure repair and development.

It's another illustration of the fundamental blind spot at the center of Biden's economic agenda: he forgets that workers are consumers too. Forcing transportation projects to rely on domestic goods is supposed to be good for American workers, yet it harms those same workers when they clock out and have to commute home on poorly maintained roads and public transportation.

Maybe Biden will recognize his error now that state and local transportation officials in blue states are telling him what economists have been saying for years: Buying American means building less infrastructure for more money.

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Foreign Workers Are Losing Their Tech Jobs. Will They Have To Leave the Country Too? https://reason.com/2022/11/23/foreign-workers-are-losing-their-tech-jobs-will-they-have-to-leave-the-country-too/ https://reason.com/2022/11/23/foreign-workers-are-losing-their-tech-jobs-will-they-have-to-leave-the-country-too/#comments Wed, 23 Nov 2022 19:15:18 +0000 https://reason.com/?p=8212763 A man works on a computer against a red background and a clock

Mass layoffs have left dozens of major tech firms and startups hemorrhaging workers ahead of the holiday season, capping off a year of shrinkage at those companies. That leaves thousands of former employees rushing to find new work in a currently contracting industry—a daunting task for U.S. citizens and a predicament with potentially life-changing consequences for laid-off workers on H-1B visas.

The H-1B visa program is a temporary work pathway through which U.S. companies can employ highly skilled foreigners in "specialty occupations." Per the Department of Labor, the program is meant to serve employers who otherwise aren't able to "obtain needed business skills and abilities" from the American workforce. Visas are capped at 85,000 per year and are issued for three years, with the possibility of extensions. Once an H-1B worker has lost his job, he can only stay in the U.S. legally for 60 days unless he finds new work or reclassifies to a different visa.

Sam—who requested that Reason not use his real name, fearing retaliation—is staring down that deadline. Until Friday, he worked at Carvana, an online used car retailer. "I thought, 'OK, this is my break to enter the tech space,'" he says. "I uprooted my life…and moved to a city where I knew no one." Now, he calls the situation at the company "an unmitigated disaster."

Citing economic pressures, Carvana recently laid off 1,500 employees, amounting to 8 percent of its workforce. They're joined by over 40,000 other tech workers who have lost their jobs in November—"well over double the amount of any other month in 2022, according to Layoffs.fyi," writes Kenrick Cai for Forbes. Stripe, Salesforce, Meta, and Amazon have all announced widespread layoffs. Twitter, under new owner Elon Musk, has made waves for its very public staff-whittling, which has affected thousands.

It remains unclear how many H-1B workers are among those laid off, but these visa holders are known to comprise significant shares of many tech companies' workforces. Using U.S. Citizenship and Immigration Services data, the National Foundation for American Policy estimates that roughly 8 percent of Twitter's 7,500 employees are on H-1B visas, while 4 to 5 percent (roughly 300 to 350) of Stripe's employees are. Bloomberg reports that "at least 350 immigrants" at just Meta and Twitter were affected by layoffs, according to information compiled by employees. Forbes notes that "thousands of foreign nationals could soon be forced to leave the United States."

With the shrinkage happening at so many major companies, laid-off workers face discouraging odds of securing new jobs in tech. Firms that once hired large shares of H-1B visa holders are now wary of expanding their staffs. "If you want to get into another tech company, who's really hiring at this point?" asks Sam. "Google's hiring very, very selectively. Amazon is in a freeze."

That's sent H-1B holders rushing for a diminished pool of available tech jobs, uniquely squeezed by harsh visa rules. Though H-1B workers ostensibly have 60 days to find a new job, Sam notes that "it's not really 60, because you take about 15 days to transfer your H-1B from your old employer to your new employer." Many H-1B visa holders have "no fallback option" beyond simply going home, he says.

It isn't uncommon for foreign workers to have been on H-1B visas for years or even decades due to extreme wait times to obtain green cards. This means they have legal status as long as they're employed but still lack certainty about their continued presence in the country. Indians face especially long wait times for permanent residency since one country's nationals can only make up 7 percent of the employment-based green cards issued in a given year. "While there are almost half a million Indian nationals in the queue, only about 10,000 green cards a year are available for them," notes Bloomberg. "A congressional report estimated that Indians filing in 2020 would have to wait as long as 195 years for a green card."

In addition to the long waits, H-1B holders can face difficulties regarding their legal status in the U.S. if they leave the country, thanks to pandemic-era delays at consulates and embassies. "Even right now, the wait time for getting an appointment at a U.S. embassy in India, it's about 200–250 days," says Sam. "I know people who lost their parents during COVID who couldn't leave the country because back then, the U.S. embassies were all shut." If they got stuck abroad, "there was no guarantee whether they would still be employed" by their American companies.

H-1B restrictions also end up barring foreign workers from more lucrative or creative job opportunities. The 60-day window for finding new employment can force them to take the first job available. Facing the prospect of self-deportation if they don't remain reliably employed, some migrants who may have excelled in a role at a riskier firm—like a startup—may settle for a less fitting position.

The net effect of these delays and difficulties is that many bright workers look to migrate elsewhere rather than negotiate the American system. Sam says his employer before Carvana offered to start his green card process. "I told them not to do it because I didn't see the point in doing so," he explains. "If I'm going to get a green card 25, 30 years down the line, then it doesn't even matter, right?"

There is "a lot of brain drain among H-1B workers who are considering alternative options, Canada being the most notable, but also the U.K., a lot of European countries also have a lot easier routes," Sam continues. Though salaries might not be as high as in the U.S., "a lot of us are OK to take a financial hit just for peace of mind."

Recent tech layoffs may affect only a small share of America's immigrant workforce, but they're a sign that much reform is needed to ensure that high-skilled workers continue to come to the United States. Reforms could also address discriminatory limits on certain immigrants. Immigration analysts like David J. Bier of the Cato Institute note that employment-based green card caps "serve no purpose because nearly all wait-listed, employer-sponsored immigrants are already in the United States working in temporary statuses." The EAGLE Act, bipartisan legislation introduced in the House and Senate, would eliminate the per-country cap on employment-based green cards that has exacerbated wait times for many immigrants.

Should Sam be unable to find a new job in the U.S. soon, he says he'll focus on Canada instead. Would that calculus be different if extreme backlogs and wait times weren't a factor?

"Absolutely," he says. "100 percent, I think I would have stayed here."

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"What's Missing in the Brackeen Argument: An Indian Affairs Clause" https://reason.com/volokh/2022/11/23/whats-missing-in-the-brackeen-argument-an-indian-affairs-clause/ https://reason.com/volokh/2022/11/23/whats-missing-in-the-brackeen-argument-an-indian-affairs-clause/#comments Wed, 23 Nov 2022 19:07:06 +0000 https://reason.com/?post_type=volokh-post&p=8212890 I was chatting with Prof. Lorianne Updike Toler (Northern Illinois), and she mentioned some thoughts of hers on this subject, based on her recent University of Chicago Law Review article, The Missing Indian Affairs Clause. I encouraged her to write up a blog post, and she kindly passed along the following:

In the November 9th oral argument for Haaland v. Brackeen, which challenges the constitutionality of the Indian Child Welfare Act, Justice Amy Coney Barret's question about the impact of overruling Congress' plenary power over tribes underscores a centuries-old confusion about federal Indian Affairs.

It's not just the Court that is confused. Former Volokh Conspiracy posts on point reveal the deep academic fissures over the historical context of the Indian Commerce Clause. Unknown to the Court and most of academe is the root cause of all the confusion: that the Constitutional Convention initially forgot (and then later intentionally excluded) the Articles of Confederation's Indian Affairs Clause in the Constitution.

As I detail in this University of Chicago Law Review article, Pennsylvanian comparative constitutionalist James Wilson, tasked by the five-member Committee of Detail to draft the Constitution, initially checked off "Indian Affairs" to include as a Congressional power, but then failed to get the power into his final draft. He was not the only one to forget. Although the Convention had commissioned the Committee to include all the Congressional powers in the Articles of Confederation (where Indian Affairs featured), Edmund Randolph also forgot to include the power in his initial sketch of the Constitution. Odd, considering a Cherokee chief had met with him that summer in Philadelphia and he was then directly concerned with settler-tribe disputes on Virginia's frontier as the state's governor. It was John Rutledge, the South Carolinian chair of the committee, who remembered, scrawling the power in the margin of Randolph's sketch. Yet he later forgot this power in combing through Wilson's final draft, and it was reported out of the Committee sans Indian Affairs.

But James Madison remembered. It was he who suggested Indian Affairs be inserted back into the Constitution. This time, the Committee of Detail intentionally excluded the Clause, instead inserting "Tribes" into the Commerce Clause. No one objected. This despite that at least three Convention members had just spent their ten-day break (for the Committee of Detail to meet) fulfilling their congressional duties in New York. There, impending tribal wars in Virginia and Georgia's Creek disputes were discussed. Presumably, the Convention thought Congress' previous powers under the Article's Indian Affairs were addressed by the Indian Commerce Clause and other provisions of the Constitution—such as the power to declare war and peace and the president's shared Treaty Power.

What does this mean for the Constitution? Put simply, Congress has no Indian Affairs power, and therefore no plenary power. Early assertion of this power was justified under the tripartite powers of Indian Commerce, War and Treaty Powers. But Congress halted tribal treaty-making long ago. If it wants to re-assert power over tribes beyond the Commerce Clause, the President needs to begin treating with tribes again.

And what of any residual power? As I propose in my article linked above, the residue reverts to the sovereign tribes. Tribal sovereignty is to tribes what federalism is to the states. Powers not reserved by the Constitution to Congress and the President revert to the tribes.

This would mean that Congress lacked constitutional power to pass ICWA, however well-intentioned. ICWA was adopted in an attempt to prevent Native American erasure by allowing the community to intervene in adoption and foster cases to ensure tribal children are raised in Native American families. ICWA grants the child's tribe exclusive jurisdiction over custody proceedings and other intervention privileges. Further, it establishes placement preferences first in favor of any family members, then the tribe, and then any Native American families regardless of tribal membership.

Unless related to its Indian Commerce power (and heaven forbid if we have arrived at treating adoption of babies and children as commerce), Congress has no power over Native American adoptions. On this basis, ICWA might be unconstitutional wholesale. However, to the extent ICWA respects tribal sovereignty and refers cases to the child's tribe, it may be constitutional under a structural reading of the Constitution: The combined intratextual references to tribes as the constitutional unit of recognition— "tribes" under the Commerce Clause and the presumption that Indians are not taxed under Art I. sec. 2 of the Constitution—together with the parallel analog of federalism vis-à-vis states may permit Congress to proactively proscribe federal and state deference to tribal power. But as Congress has no plenary power over tribes and Native Americans as a people, it cannot specify adoption placement or other preferences. The Court should so rule in Brackeen.

The post "What's Missing in the <i>Brackeen</i> Argument: An Indian Affairs Clause" appeared first on Reason.com.

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The Best Ever Libertarian Gift Guide https://reason.com/2022/11/23/the-best-ever-libertarian-gift-guide/ https://reason.com/2022/11/23/the-best-ever-libertarian-gift-guide/#comments Wed, 23 Nov 2022 19:01:47 +0000 https://reason.com/?p=8212666 The Statue of Liberty surrounded by the New York City skyline sits in a snowy field with evergreen trees

"Eye-eye-eyeeeeee don't want a lot for Christmas," she said. "There is just one thing I need," she said. It's the secular holiday anthem for the ages. And it's based on a lie.

No shade to Mariah. But we all know that the ambiguous you is not the only thing she needs, nor the only thing needed by the masses—who can often be heard belting "All I Want for Christmas Is You" in unison in the bars and show choir concerts across the country. You can't wrap up a "you." You may get annoyed when "you" refuses to turn off football in favor of Married at First Sight. (This isn't personal.) Who is you anyway?

Since Mariah is no help, Reason is here to make it right.

We're back with our yearly gift-giving suggestions, tailored to all ages, personality types, and affinities, to the practical and the bizarre and (most) everything in between. For the Reason fan in your life, check out our swag, from shirts and hats and onesies to mugs and phone cases and even a stainless steel water bottle. Wow! And for the ones you want to convert, give a three-year gift subscription for the low, low price of $37.97. (Shorter timespans are available for gift recipients with commitment issues.)

For ideas a little more outside the box—to fill the hole Ms. Carey left—we're here for you. Happy giving! —Billy Binion, associate editor

For the dinner party host(ess) extraordinaire:

Amazon.com: MEATER Block | 4-Probe Premium Smart Meat Thermometer | Bluetooth to WiFi Range Extension | for The Oven, Grill, Kitchen, BBQ, Smoker, Rotisserie: Home & Kitchen
(Meater)

Inflation has made everything at the grocery store more expensive, but prices for meat and poultry rose even faster than average inflation for most of the past year. That means overcooking your filet doesn't just risk ruining dinner. It's a waste of money too.

Clearly, the stakes—and the steaks—have been raised. Now more than ever, a thermometer is the essential grilling accessory.

Meater+ connects via Bluetooth to any smartphone or tablet, providing real-time updates on the ambient air temperature and the internal temperature of whatever is on the grill. With it, the old "well, that looks done" method of grilling can be relegated to the dark ages where it belongs.

Even though it comes pre-loaded with the Food and Drug Administration's recommended temperatures for each type and cut of meat, Meater+ lets you freely ignore the food bureaucrats' often ridiculous edicts. That means Meater+ doesn't merely prevent the dreaded overcook, but also helps you zero in on exactly how you like different meats prepared and consistently hit the sweet spot. —Eric Boehm, reporter

Buy it for $79.96

Amazon.com: Peugeot Olivier Roellinger 5.25 Inch Pepper Mill, Chili Red: Spice Grinder: Home & Kitchen
(Peugeot)

I recently rediscovered the glory of good old pepper. It's underrated by many standards, which is unfortunate, because it's flavorful, packs a punch, and has many health benefits. But that's not all! It's a gift for the diverse palate: Whether from Europe, India, China, (or a blend of them all), whether red, black, white, soft or hard, I love them indiscriminately. And thanks to a free(-ish) trade system, we can buy most of them in the U.S.

Which leads me to my gift suggestion: the Peugeot Olivier Roellinger Pepper Mill. It comes in red or black—doubling as a beautiful fixture on the kitchen or dining room table—and you can change the setting for fine or coarse grinding. Most importantly, this is the gift for the person who already "has everything." Besides, it's a great conversation starter if you say, for instance, "pepper and libertarians have a lot in common." Spicy. —Veronique de Rugy, contributing editor

Buy it for $57.93

For the one who needs an aesthetic upgrade:

Come Back With a Warrant welcome mat

The "Come Back With A Warrant" doormat is a mainstay of liberty-minded home décor, and for good reason. It fulfills a utilitarian function—giving guests a place to wipe their feet—while also making your legal knowledge known to any state actors who might come a-knocking.

With many stylish variations of the, shall we say, un-welcome mat, there is a design for any taste. The basic version of the doormat is a classic—and it has adorned my entryway for two years, while staying in top condition. However, Etsy is replete with other options, from cutesy to, erm, aggressive

I'm personally partial to another variation—this doormat reading "hippity hoppity, get off my property," featuring a shotgun-toting cartoon frog. But as both a renter and a non-gun owner, it seemed a bit mismatched to my personal needs.

This holiday season, give the new home or apartment owner a gift that will both spiff up their doorway and remind guests—and government employees—that you are not to be trifled with. —Emma Camp, assistant editor

Buy the staple for $39.20.      Buy the frog for $26.10 0

Burpee seed starting system

Give the gift of self-sufficiency—and a side of boho-chic ambiance—with a Burpee self-watering seed starting system. The self-watering tray and pellets of coco coir make growing plants from seeds a breeze, even for anti-green-thumb millennials who still want their homes to loosely resemble a Pottery Barn catalog. Burpee also sells high-quality vegetable seeds, including container-friendly cucumber and bean varieties for those who don't have space for outdoor garden beds. Growing your own food is rewarding, especially during an inflationary period. —C.J. Ciaramella, reporter

Buy it for $24.99mamzo

For the gaming evangelists:

The Great DalmutiIf you're looking for a way to sneakily teach your friends and family the ills of taxation and central authority, you need to gift The Great Dalmuti. The game goes something like this: Players try to shed all of their cards, and at the end of each round, those trailing in last must pay taxes to the top two winners. True to form, those taxes lock the losers in a cycle of losing and the winners in a cycle of winning until a revolution happens and power dynamics shift. With no official end to the game, it can be played until your non-libertarian friends and family members become so annoyed with the state that they become libertarians. —Addie Mae Villas, Burton C. Gray Memorial Journalism Intern

Buy it for $14.99

Terraforming MarsWhile man is still trying to get back to the moon, you can take your family a few million miles further this Christmas by giving them the gift of Terraforming Mars. As the name suggests, the board game tasks players with adding plants and people to the dead, red planet until it starts to look and feel a little more like home. 

The libertarian in your life will have a blastoff assuming the role of a geoengineering mega-corporation that tries to fill the driest oceans, build the most domed cities, and smash the most temperature-raising asteroids into the planet's surface. Ample opportunity for player cooperation will ensure the competition doesn't get too heated. 

The production value of the game pieces might leave a little to be desired. The real fun is found in exploring the imaginative game's setting and endless victory strategies. —Christian Britschgi, associate editor

Buy it for $61.15 

For the coffee connoisseurs:

MoninInflation getting you down? If you're like me, you've taken to making a lot more treats at home this past year to save and scrimp. I've certainly been fine-tuning my barista skills as coffee prices rise at many big chains and local haunts. Just because the economy sucks doesn't mean your coffee has to.

Enter Monin. The syrup company has a wide variety of interesting flavors, from amaretto to toasted marshmallow to tiramisu. I love to add the brand's lavender and French vanilla offerings to my lattes, but you can truly have some fun customizing your coffees (not to mention your alcoholic drinks, lemonades, and Italian sodas). 

At around $15 per bottle of syrup—a hefty one, at that—you can try your hand at café-caliber drink combinations for pennies on the dollar. Happy mixing! —Fiona Harrigan, assistant editor

Buy it for $13.11 

Bialetti Moka PotIn 1933, Italian engineer Alfonso Bialetti invented the Moka Pot—a small, sleek, stovetop coffee maker—democratizing espresso for the masses. It's cheap, easy to use, and makes a perfectly fine cup of joe. And thanks to Italian emigration and Alfonso's marvelously mustached son, Renato, the device grew rapidly in popularity and remains ubiquitous in homes throughout Italy, South America, and Australia.

I've had one for years but have been using it more than ever for the same reason I'm recommending it to you now: Putin's war in Iraq! (Oops, I mean Ukraine.) A one-pound bag of espresso at $15 yields roughly a month of my daily addiction: about a fifth of what I pay for the same dosage from my Nespresso machine. (Let's not even talk about the $4 a day I was paying at Starbucks before the pandemic. Yikes!) And at just seven inches, you can have your bougie java wherever you go. No longer will you be that guy who shows up at the shared beach house with a legit espresso machine, a 26-piece set of Wusthof knives, and filtered ice cubes. (You could even take it camping if that's something that someone ever makes you do.) 

While the Moka Pot comes in a variety of sizes and finishes, I own the classic three-cup version. At just $30, you can gift this timeless beauty to all the caffeine junkies in your life. —Jackie Pyke, director of development

Buy it for $29.99

For the freethinking tot:

Loveevery kitIf you're shopping for young kids, I highly recommend anything from Lovevery. The toys are made of high-quality materials, are aesthetically pleasing (no garish flashing neon plastic bits!), and are able to take a battering. Best of all, they're designed around Montessori principles to support brain development and inspire independent play. 

Lovevery sells some stand-alone toys—you can find some of these on its website, while others I've only seen on Target.com—as well as toy box kits tailored to children's developmental stages. Each kit comes with six to nine different toys and costs $80 to $120 individually, or slightly less with a subscription (with new kits delivered every two to three months). —Elizabeth Nolan Brown, senior editor

Buy kits for $80-1200    Shop miscellaneous

LEGO City Roadwork Truck 60284 Toy Building KitInstead of that misconceived (and overpriced) model high-speed-rail train set, consider a copy of How To Build a Road, a children's construction book that, true to its name, walks kids through the ins and outs of roadbuilding. (It's more interesting than it sounds.) Alternatively, there's the Lego City Roadwork Truck, which gives you another holiday excuse to teach a liberty-minded little one that government coercion isn't necessary for successful public infrastructure projects. At a minimum, a firm foundation in road work terminology comes in handy when the future free thinker finds herself dorm room jousting with a "you didn't build that"-kind of collectivist.

And while we can't expect all to grow up and attain Bob Poole levels of transportation policy distinction, kids should at least know the difference between a bulldozer and an excavator if ever they're to engineer that privately owned, market-priced (and pothole-free) toll bridge to a brand new Panamanian seastead around, say, 2042? —Hunt Beaty, podcast producer

Buy the book for $8.210    Buy the Legos for $6.93 

For the survivalists:

Hakko FX-600No libertarian bunker is complete without a decent soldering iron.

Enter the Hakko FX600. Pair it with free online tutorials and tinkerers can quickly start turning boxes of old cords into practice projects.

For those who get good at it, fixing stuff will become a hedge against instability. Being able to put broken electronics and appliances back into working order during an emergency situation could literally save someone's life. Or maybe even enable them to play GameBoy during the apocalypse.  

They wouldn't be able to keep up the salvage-hacker lifestyle forever. But it doesn't take a doomsday scenario for some basic wiring skills to come in handy. It at least might help them weather the whims of a finicky supply chain, lest their replacement gadgets get stuck on a boat coming from China. —Adam Sullivan, digital marketing specialist

Buy it for $35.82

Henry US Survival AR-7First designed by ArmaLite's Eugene Stoner as a survival weapon, the AR-7 is an underappreciated semiautomatic rifle that has gone through multiple manufacturers over the years. This takedown rifle—the barrel detaches from the receiver and both can then be stored in the water-resistant stock—was featured as an assassin's tool in From Russia With Love in 1963, but it works better in the hands of outdoorsy types for small-game hunting and plinking. I like to throw mine into a daypack when I hike and bike in the desert, along with a good supply of the small, lightweight .22 LR rounds it shoots.

My rifle dates back to when Survival Arms owned the design, but current production from Henry Repeating Arms is well-reviewed, though the magazines were redesigned and aren't fully interchangeable with older models. Standard magazines hold eight rounds, but extended magazines can be purchased from other makers. —J.D. Tuccille, contributing editor

Buy it for $3350  

For the vice addict:

Campari and the CinemaYou can't make a classic Negroni without Campari, and it turns out it's pretty good in a movie, too. A lavish new book, Campari and the Cinema, traces the Italian bitter liqueur's history on screen, from a 1984 TV commercial for the brand directed by Federico Fellini—it's a love story set on a train—to a more recent short film, Killer in Red, directed by Paolo Sorrentino and starring Clive Owen as a bartender whose cocktails "express people's destiny." (He makes a lot of drinks that use Campari, of course.) One might argue that an oversized, brand-approved book like this doesn't have much practical value, but practicality isn't the point. This is a massive, gorgeous coffee table book that will appeal to fans of movies and Negronis—and even more to people who, like me, love both. —Peter Suderman, features editor

Buy it for $38.80 

Chartreuse Elixir VegetalThe home bars of true American cocktail aficionados may already be stocked with bottles of green and yellow Chartreuse, a liqueur first developed and still exclusively sold by Catholic monks in a remote valley in the French Alps. The Last Word is one (relatively) well-known drink that contains Chartreuse as an ingredient, alongside gin, maraschino liqueur, and lime juice.

But even serious imbibers may never have tasted the original iteration of Chartreuse, which the Carthusian monks' in-house apothecary perfected in 1737. That even-higher-proof liquid, made from all the same herbs and flowers as the green and yellow versions available around the world, has long been sold in France in tiny bottles labeled "Élixir Végétal." As of fall 2022, it's now available in the United States as well.

Thanks to federal regulators, though, who associate the word elixir with medicines, the same product has to be marketed here merely as "Chartreuse Vegetal." In fact, the Carthusians do consider the liqueur to have medicinal properties, but with three-letter government agencies on the prowl, their distributors find it easier to pretend otherwise. —Stephanie Slade, senior editor

Buy it for $29 

Stündenglass gravity infuserThrow away that five-gallon jug because gravity bongs just got a major upgrade.

Stündenglass combines physics, airflow, and clean design to create a contactless smoke delivery system. With a 360-degree rotatable activation, it's easy to keep herbs burning with no re-light needed. The Stündenglass gravity infuser comes in six colors and glass globes can be swapped out to match your aesthetic. This piece is truly a stunner on your bud cart.

But Stündenglass isn't just for cannabis consumers. They sell an assortment of woodchips, from hickory to apple, for all your culinary and mixology needs. Use the tray cloche to smoke out ribs or the beverage cloche for an added flavor in one of Suderman's cocktail recipes

Elevate any smoking experience with Stündenglass and leave your janky DIY gravity bong where it belongs—in your college years. —Bess Byers, digital marketing specialist

Buy the gravity infuser for $420 Buy the beverage cloche for $134.96 Buy the tray cloche for $179.96

For the crypto-inclined and the crypto-skeptic:

SatscardWhat do you get your bitcoin-crazy friend who has everything and for whom pesky Christmas gifts seem quaint? More bitcoin, of course.

SATSCARDs are Coinkite's newest vehicle for conveniently gifting bitcoin. You drop bitcoin onto the SATSCARD with a single transaction to the address displayed on the back of the card, hand it to your loved one, and they now control the balance. From there, they can sweep the funds to wherever they please. Gifting the world's hardest money doesn't get easier than this. 

Nobody has enough corn—not even your Bitcoiner bro—and you doing the work to put coin on a winter themed SATSCARD is all the more reward. Even the non-techie can pull this one off. —Joakim Book, copy editor

Buy it for $12.99 

GiveWellEffective altruism is taking a drubbing as the media covers every detail the implosion of Sam Bankman-Fried's cryptocurrency exchange, FTX. SBF, as he is known, was one of the largest funders of the effective altruism movement, which aims to maximize the impact of charitable giving. SBF's FTX shenanigans aside, effective altruism has a lot to recommend it, and the institutions that practice this type of philanthropy certainly need to diversify their donor base in a hurry. Why not do your end-of-year charity this year through GiveWell? Founded in 2007, the nonprofit is part of the O.G. crew of effective altruists who have worked diligently to find and fund powerful cheap interventions such as bed nets in malarial zones, dewormers for kids, and direct cash transfers to the world's poorest people. (They also take donations in crypto if SBF hasn't scared you off.) Too many Christmas charity donations are political or pointless. GiveWell is neither—and it won't clutter up your house. —Katherine Mangu-Ward, editor in chief

Donate with credit 0   Donate with crypto 

For the self-care obsessed:

TaTalife portable spaWhen traveling for the holidays, there's nothing like stepping off a germ-ridden plane and into a piping hot sauna, punishing your body with high temperatures to get those heat shock proteins flowing through your veins. The obvious problem: Most of us don't have easy access to saunas on the road. So if you want your loved ones to keep those sniffles at bay and escape the winter blues, buy a sauna they can take with them, like the TaTalife Portable Professional Far Infrared Sauna Dome. It's perfect for family and friends with a PhD in bro science and pairs perfectly with their ice baths and cold showers. —Hilary Hackleman, director of operations

Buy it for $299.99 

Woman sleeps with Nodpod sleep maskI'm back, baby, with another sleep mask. "Another one!?" you might ask. Hear a girl out. I'm retracting my claim from last year that lumped in any weighted eye mask with flimsy airline freebees. (The latter are still trash.) That's because the Nodpod Gentle Pressure Sleep Mask is a weighted sleep experience that any over-taxed and under-slept (who isn't?) individual needs.

I opt for the "Sedona" shade because I love a desert vibe, but there are plenty of colors to pick from for a loved one (or even just a liked one). The design gently forces any overstimulated eyeballs to get the rest we so need; until some billionaire comes up with a way for us to avoid dedicating a third of our lives to sleep, we might as well be smart about it. The 2022 holiday season doesn't have to be about Black Friday stampedes. So click the link, spend the money, and sleep well. Have a happy, restful holidays, Reason readers and viewers. —Regan Taylor, video editor

Buy it for $34  

For the comic book creatives:

Firefly: The Unification War Vol. 1Firefly is not coming back to the small screen—I'm sorry, but Nathan Fillion doesn't need the money, and it would probably just be a disappointment anyway. Yet fans of the 2002 space western with libertarian vibes can get their fix with the series of Firefly comics published by Boom! Studios. The libertarian-adjacent themes and well-drawn cast of characters continue their adventures in a series of 36 comic books and two one-off graphic novels. Those ready to jump in should start with the hardcover Firefly: The Unification War Vol. 1 which collects the first four comic books in the series. 

Unclear if Boom! Studios has put the series on hiatus (the most recent comic book was published in January 2022), but anyone who makes it through their Firefly collection can indulge in the initial Serenity comic books that were sporadically published by Dark Horse Comics from 2005–2017 (which I have not read and cannot vouch for). Whether you're interested in the comics or satisfied with the TV show's lore, just remember the theme song's opening lyrics: "Take my love / Take my land / Take me where I cannot stand / I don't care / I'm still free / You can't take the sky from me." —Jason Russell, managing editor

Buy Firefly for $19.990    Buy Serenity for $14.99  

See You At San Diego: An Oral History of Comic-Con, Fandom, and the Triumph of Geek CultureExhaustive but not exhausting, if you ever wondered how the geek cultures of comics, science fiction, and animation managed to become huge engines of money and crowds in showbiz, you'll be interested in See You At San Diego: An Oral History of Comic-Con, Fandom, and the Triumph of Geek Culture. This deep dive explores the history of San Diego Comic-Con via the voices of the curious, driven gang of nerdy weirdos and creatives who started small gatherings of fellow fanatics in San Diego hotels. Over 50 years, they took over the town and the entertainment industry. As with the best examples of spontaneous growth, it isn't because they planned or intended it: It's because their fantasies and hard work created a pulsing and paradoxically colorful black hole of attention and energy that gradually drew big money and crowds bigger than the city's convention center could hold.

The kids and their less-than-a-handful of adult mentors who started it all just wanted to hang out, talk to their pals, meet other potential pals, honor their creative heroes, and buy old comic books. When people get attracted to a wonderful dream, the shape of the dream must change. But when your idea is this attractive, it can't be helped. Both those who love and lament how success changes things will be fascinated watching these passionate feuding fans make dreams bigger than they could have imagined come true. —Brian Doherty, senior editor

Buy it for $39.99  

For the culturally indulgent:

In the Shadow of Clinch Mountain by the Carter FamilyIf you have an Americana fan on your list, consider a Carter Family product. These revered conservators of the Appalachian mountain-music tradition virtually kick-started what became the professional country music scene, providing a repertoire of timeless songs to generations of earnest folkies, dorm-room guitar hotshots, and pop outliers like Devo (who covered the Carters' "Worried Man Blues" in Neil Young's oddball 1982 movie Human Highway) and Anna Kendrick (who turned their "When I'm Gone" into a cup routine in the first Pitch Perfect film). There's a ton of variously packaged Carter Family paraphernalia available, most abundantly on a Bear Family box set called In the Shadow of Clinch Mountain, which collects 307 of the tracks the group recorded from 1927 to 1941. Unfortunately, it costs $237. 

If the thought of that sort of gifting outlay puts you in a Scroogey mood, let me suggest a fine alternative. Try Meeting in the Air, a collection of 14 Carter songs performed by Jim Watson, Tommy Thompson, and Mike Craver, all veterans of a long-running North Carolina string band, the Red Clay Ramblers. This record was recorded in 1979 and '80 and thus had the benefit of modern recording technology. The guitars (and occasional banjo and autoharp) are fuller than on the original records and the twining vocal harmonies—at which these guys truly excel—are clearer. Not all of the songs are the usual Carter "hits" (there's no "Wildwood Flower" or "Can the Circle be Unbroken"). But "Lulu Walls" and "The Wayworn Traveler' and the sublime "Give Me the Roses" are here, and they're incandescently rendered.

Meeting in the Air can be hard to find and expensive when you can. Happily, Rambler Mike Craver appears to have stashed away some reserve CDs, and he's selling them on his website for $10.95. A real deal, believe. —Kurt Loder, film critic

Buy In the Shadow of Clinch Mountain for $237.60

Buy Meeting in the Air for $10.95 

File:Wicked, oriental theater in chicago.jpg - Wikimedia Commons
(Wikimedia Commons)

Mariah left out a few things with her hit single. But she may have been onto something when she excluded stuff. So for the person who already has all the stuff they need, or whose home is cluttered with stuff they don't need, give the gift of a cultural experience.

Who doesn't love a good musical? I can already hear one response: "A lot of people." I'll counter: Most everyone likes music, and most everyone likes a good story, so there's at least one musical for everyone. And it may be coming to a city near you.

Check out the Broadway shows currently touring the country, which bring the quality of New York theatre to your backyard at a more affordable price. For the history buff, check out the schedule for 1776, Hamilton, or even Les Misérables. For the nostalgic one, look at Beetlejuice, Ain't Too Proud, Beautiful: The Carole King Musical, and Jagged Little Pill (depending on your era of choice). For the Disney princess in your life, get thee to Frozen or Aladdin. And for that person mentioned above who rolls their eyes at the idea of spending a night out at a musical, try the almost-universally crowd-pleasing Wicked. Even if they don't fall in love, at least they'll finally understand the cultural references when Ariana Grande portrays Glinda on the silver screen. Cultured and well-informed. —Billy Binion, associate editor

Buy tickets  

The post The Best Ever Libertarian Gift Guide appeared first on Reason.com.

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Making the GOP Liberty-Friendly Requires More Than Just Rejecting Donald Trump https://reason.com/2022/11/23/making-the-gop-liberty-friendly-requires-more-than-just-rejecting-donald-trump/ https://reason.com/2022/11/23/making-the-gop-liberty-friendly-requires-more-than-just-rejecting-donald-trump/#comments Wed, 23 Nov 2022 18:45:17 +0000 https://reason.com/?p=8212876 Donald Trump announced his candidacy for president in 2024

Former President Donald Trump is running for president again, seeking the nomination of a party which, for the first time in six years, isn't wholly sure it wants him back. What the GOP base decides remains a wholly open question; Trump is still the only candidate officially on offer, and history teaches polling this early in the race is useless. But the sort of Republican voter who airs his opinion in the pages of The New York Times and National Review has decided, emphatically, that the time for Trump is over. 

This may seem like a promising development to any libertarians waxing nostalgic about an earlier era of libertarian-Republican relations—a time when libertarianism was deemed, in Reason's pages, "the very heart and soul of conservatism," when the GOP's rhetorical commitment to limited government made it libertarians' preferred vehicle for political action within the two-party system, when yawning gaps between libertarians and Republicans on social and foreign policy were ignored because, uhhh, you know, communism! Taxes! 

So if the Republican Party finally rejects Trump, is that also a rejection of the authoritarian and illiberal impulses his political career has amplified? I'm open to being pleasantly surprised, but so far, the evidence answers with a resounding "no." Even if Trump loses this primary race, there's every reason to think his party will retain its present will to power.

At The Bulwark this week, Jonathan V. Last documented a telling contrast between Republicans' rationales for rejecting Trump now and their original objections to his candidacy in 2015 and 2016. Back then, GOP critiques of Trump were grounded in language about policy and governing principles or personal character, or both. Now the repudiation is openly transactional: Trump loses, and Republicans don't want to lose.

In 2015, for example, Sen. Lindsey Graham (R–S.C.) called Trump a "race-baiting, xenophobic religious bigot" and cast a skeptical eye on Trump's promises to "take all the problems of the world and put 'em in a box and make your life better." He didn't bother to spell it out, but the implication was clear: That promise was empty because it's not the sort of promise the government can fulfill.

Early the next year, before his pathetic "small hands" line, Sen. Marco Rubio (R–Fla.) likewise wondered at "people that are lifelong conservatives, or at least claim to be, who don't seem to care that Donald Trump has never been and is not now a conservative on principles." 

And National Review editorialized that "Trump is a philosophically unmoored political opportunist who would trash the broad conservative ideological consensus within the GOP in favor of a free-floating populism with strong-man overtones," bemoaning his lack of interest in limited government and his "obsession …with 'winning.'"

That kind of argument is no longer at the fore. Last quotes former New Jersey Gov. Chris Christie this month lamenting that Republicans "keep losing and losing and losing" and blaming those losses completely on Trump. 

After this year's midterms losses for the GOP, "[w]hatever purpose [Trump] was meant to serve—bringing working-class voters back to the Republican fold; restoring nationalism to conservative ideology; rejecting the authority of supposed experts—has been served," argued Bret Stephens at The New York Times in a hopeful hypothesis of where primary voters will land. "Others can now do the same thing better, without the drama and divisiveness. He's yesterday's man."

National Review's editors, once again categorically anti-Trump for the primaries, perfected the pivot to an obsession with winning of their very own. Their new editorial highlighted Trump's self-sabotage as president, his "narrow defeat to [sic] a feeble Joe Biden in 2020 in what was a winnable race," his "eminently defeatable" endorsees in 2022, and the Republican Party's overall loss of reputation, position, and power under his leadership. Reject Trump, the article argued, because you can do better. You can have a Republican who wins.

While National Review did gesture, briefly, to policy specifics, some of them in the pre-2016 style of Republican priorities, the broader hostility toward Trump for 2024 is not concerned with returning to those old orthodoxies. The argument is not: He loses, and therefore we can't limit government, cut taxes, reduce debt, slash needless regulation, and so on. It's rather: He loses, and therefore we can't wield the power of an expansive federal government to "reward friends and punish enemies." 

Particularly if we get another crowded field in 2024, it's possible some primary contenders will retain that older meta-stance on the scale and scope of the state. Whether they'll be viable, however, is another question. 

The buzziest likely challenger to Trump, Florida Gov. Ron DeSantis, is of the new authoritarian bent. Former Vice President Mike Pence, having already served as Trump's second-in-command, is clearly at least comfortable with it. Trump may no longer be the candidate best suited to advance the Republican Party's increasingly illiberal agenda, but that doesn't mean the agenda has been abandoned. If anything, leaving behind its nursemaid may be a sign of its maturity.

The post Making the GOP Liberty-Friendly Requires More Than Just Rejecting Donald Trump appeared first on Reason.com.

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Growing Up Underground With Steven Heller https://reason.com/video/2022/11/23/growing-up-underground-with-steven-heller/ https://reason.com/video/2022/11/23/growing-up-underground-with-steven-heller/#respond Wed, 23 Nov 2022 17:24:39 +0000 https://reason.com/?post_type=video&p=8212552 The New York Times.]]> growing-up 8212552

As a teenager growing up in Greenwich Village in the late 1960s, Steven Heller improbably became the art director of pioneering alternative publications such as The New York Free Press, Screw magazine, and The East Village Other before eventually moving on to work at The New York Times and teaching at the School of Visual Arts for decades.

He chronicles his youthful misadventures in Growing Up Underground: A Memoir of Counterculture New York. In November, Heller spoke at the Reason Speakeasy, a monthly, unscripted conversation with outspoken defenders of free thinking and heterodoxy in an age of cancel culture and thought police. He regaled the Manhattan audience with tales of arrests on obscenity charges, how design and aesthetics can supercharge the meaning of words and pictures, and why so many in the counterculture adopted exactly the same "uniform of alienation" in the name of individualism.

Produced by Nick Gillespie; videography by Kathleen Lakey; edited by Brett Raney and John Osterhoudt; sound editing by Ian Keyser

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Steven Heller: Growing Up Underground https://reason.com/podcast/2022/11/23/steven-heller-growing-up-underground/ https://reason.com/podcast/2022/11/23/steven-heller-growing-up-underground/#comments Wed, 23 Nov 2022 17:24:39 +0000 https://reason.com/?post_type=podcast&p=8211787 Screw magazine to The New York Times.]]> Growing Up Underground with Steven Heller

As a teenager growing up in Greenwich Village in the late 1960s, Steven Heller improbably became the art director of pioneering alternative publications such as The New York Free Press, the pioneering porn magazine Screw, and The East Village Other before eventually moving on to work at The New York Times and teaching at the School of Visual Arts for decades.

He chronicles his youthful misadventures in Growing Up Underground: A Memoir of Counterculture New York. In November, Heller spoke at the Reason Speakeasy, a monthly, unscripted conversation with outspoken defenders of free thinking and heterodoxy in an age of cancel culture and thought police. In a wide-ranging conversation with me, he regaled the Manhattan audience with tales of arrests on obscenity charges, how design and aesthetics can supercharge the meaning of words and pictures, and why so many in the counterculture adopted exactly the same "uniform of alienation" in the name of individualism.

  • The Reason Speakeasy. The Reason Speakeasy is a live, monthly, unscripted conversation with outspoken defenders of free thinking and heterodoxy in an age of cancel culture and thought police. The next one takes place in New York City on Thursday, December 1, with Nick Gillespie interviewing Kaytlin Baileythe founder of Old Pros, a sex worker rights group, host of The Oldest Profession Podcast, and the writer and performer of Whore's Eye View, a one-woman show about 10,000 years of prostitution, female emancipation, and sexual freedom. Doors open at 6:00 p.m. Tickets are $10 and include beer, wine, soft drinks, and appetizers. For more details and to buy tickets, go here now.

The post Steven Heller: Growing Up Underground appeared first on Reason.com.

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The Horseracing Case, Part 3: How Carter Coal Is Misunderstood https://reason.com/volokh/2022/11/23/the-horseracing-case-part-3-how-carter-coal-is-misunderstood/ https://reason.com/volokh/2022/11/23/the-horseracing-case-part-3-how-carter-coal-is-misunderstood/#respond Wed, 23 Nov 2022 15:37:19 +0000 https://reason.com/?post_type=volokh-post&p=8212827 This is one of a series of posts on the Fifth Circuit's recent "private nondelegation case", National Horsemen's Benevolent & Protective Ass'n v. Black, where it struck down the Horseracing Integrity and Safety Act for delegating power to a private organization, the Horseracing Integrity and Safety Authority. In Monday's post, I explained how A.L.A. Schechter Poultry Corp. v. United States (1935), the main case that proponents of a "private nondelegation doctrine" usually rely on, gives no support to any view that delegations are judged more harshly if the recipient of the delegation is private instead of public. And in Tuesday's post, I talked about how the Supreme Court upheld private delegations four times between 1905 and 1939, and cited two of those cases in Schechter Poultry as examples of cases where private delegation was unproblematic; unfortunately it mischaracterized Schechter Poultry a few times in the 1940s as being about private delegation, but fortunately that was dictum.

Today, I'll talk about the second case that people often rely on when they want to argue that there's a rule against private delegations: Carter v. Carter Coal Co. (1936). Just like Schechter Poultry, this case has been widely misunderstood: (1) if you read it as an Article I Nondelegation Doctrine case, it doesn't support any special rule against private delegations; (2) it's probably best read as a Due Process case (based on the presence of financial bias); (3) if you read it as a Due Process case, it likewise doesn't support any special rule against private delegations.


* * *

Carter v. Carter Coal Co. involved a challenge to Bituminous Coal Conservation Act of 1935. The Act imposed a 15% tax on coal, but provided that, if a producer accepted the Bituminous Coal Code, he would get a 90% rebate of that tax. And this Code involved, in part, setting minimum and maximum prices of coal, regulation of various methods of competition, collective bargaining, and workers' wages and hours. The wages and hours were to be determined by negotiation between labor and management:

"Whenever the maximum daily and weekly hours of labor are agreed upon in any contract or contracts negotiated between the producers of more than two-thirds the annual national tonnage production for the preceding calendar year and the representatives of more than one-half of the mine workers employed, such maximum hours of labor shall be accepted by all the code members. The wage agreement or agreements negotiated by collective bargaining in any district or group of two or more districts, between representatives of producers of more than two-thirds of the annual tonnage production of such district or each of such districts in a contracting group during the preceding calendar year, and representatives of the majority of the mine workers therein, shall be filed with the Labor Board and shall be accepted as the minimum wages for the various classifications of labor by the code members operating in such district or group of districts."

The Supreme Court didn't like this arrangement, which allowed some companies and workers to impose their negotiated wages and hours on other companies and workers. Here's what it wrote:

That subdivision delegates the power to fix maximum hours of labor to a part of the producers and the miners . . . . The effect, in respect of wages and hours, is to subject the dissentient minority, either of producers or miners or both, to the will of the stated majority, since, by refusing to submit, the minority at once incurs the hazard of enforcement of the drastic compulsory provisions of the act to which we have referred. To "accept," in these circumstances, is not to exercise a choice, but to surrender to force.

The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form, for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. . . . Some coal producers favor the Code; others oppose it, and the record clearly indicates that this diversity of view arises from their conflicting and even antagonistic interests.

The difference between producing coal and regulating its production is, of course, fundamental. The former is a private activity; the latter is necessarily a governmental function, since, in the very nature of things, one person may not be entrusted with the power to regulate the business of another, and especially of a competitor. And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question. [citing Schechter Poultry, Eubank v. City of Richmond (1912) and Washington ex rel. Seattle Title Trust Co. v. Roberge (1928).]

So you see why, on its face, this looks like a good anti-private-delegation opinion! It says "delegates" and "delegation", it cites Schechter Poultry, and it strikes down a delegation to private parties!

But let's look at this more closely. Clearly merely saying the word "delegation" isn't enough to make something an Article I Nondelegation Doctrine opinion. For instance, a state government can't delegate to a church the power to veto the licensing of a bar—that's the doctrine of Larkin v. Grendel's Den (1982). The verb "delegate" shows up all over that opinion, but of course it can't be an Article I Nondelegation Doctrine opinion, because that doctrine has no applicability to state delegations, only to federal ones. A bunch of other doctrines are similar: they've been described using the term "delegation", but they're not about the Article I Nondelegation Doctrine.

More specifically, Carter Coal also looks suspiciously like a Due Process opinion: it says "arbitrary" and "denial of rights safeguarded by the due process clause of the Fifth Amendment", and then it cites Due Process cases Eubank and Roberge. The focus on financial self-interest in those cases is a good fit with the concerns in Carter Coal (I'll discuss those cases in a blog post next week), so it makes more sense to read Carter Coal as a Due Process case, not an Article I Nondelegation Doctrine case.

Admittedly, Carter Coal does cite Schechter Poultry, which is indeed an Article I Nondelegation Doctrine decision . . . but maybe some commingling of doctrines is going on. And this isn't some arbitrary labeling of doctrines that only academics should care about: Due Process holdings apply against all levels of government, while Article I Nondelegation holdings apply only against congressional delegations; Due Process holdings can support damages under section 1983 and Bivens, while Article I Nondelegation holdings don't. This matters for how the holding can be used in future cases, which is why courts ought to be careful about their reasoning.

Fortunately, in later cases, the Supreme Court has come down on the Due Process side of characterizing Carter Coal. But it turns out—even though I think courts should be careful—it doesn't much matter how we read Carter Coal, because under any reading, it doesn't support any special rule against private delegations.

If we read Carter Coal as a nondelegation case, it would be explainable in completely ordinary terms: the delegation to the coal producers was unlimited; the majority of coal producers could impose whatever conditions they wanted on the dissenting minority. In other words, there was no intelligible principle. This delegation would have been struck down even if the delegates were public. (Thus, Chief Justice Hughes wrote a separate opinion relying on both nondelegation and Due Process, and his nondelegation discussion didn't even mention private status.)

So, as Article I Nondelegation Doctrine cases, neither Schechter Poultry nor Carter Coal support the idea that the Article I Nondelegation Doctrine distinguishes between public and private delegates.

O.K., but what if we read Carter Coal as a Due Process case? To answer this question, we need to look at the relevant Due Process caselaw in greater detail, which I'll do in my next post—next week, after we take some time off for Thanksgiving.

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The Pandemic Is Over, Except When Politicians Need It To Justify Their Plans https://reason.com/2022/11/23/the-pandemic-is-over-except-when-politicians-need-it-to-justify-their-plans/ https://reason.com/2022/11/23/the-pandemic-is-over-except-when-politicians-need-it-to-justify-their-plans/#comments Wed, 23 Nov 2022 14:30:59 +0000 https://reason.com/?p=8212808 COVID-19 molecule

Authorities cite COVID-19 to justify extensions of student loan payment pause, immigrant expulsion order. COVID-19 is still around, but The Pandemic—a threat so pervasive and severe it requires a wide-scale reorganizing of society—is over. That's long been Republicans' position, and lately even President Joe Biden has agreed. And yet… both sides are still using The Pandemic to excuse extraordinary political measures.

For Democrats especially but also Republicans, the COVID-19 pandemic is over except when it's politically convenient to say that it's not. It's over except when it comes to justifying programs they like and don't otherwise have the support or authority to enact.

For the Biden administration, this means suspending the requirement that student loans must be repaid. Legal challenges have halted Biden's plan to totally wipe out a lot of student loan debt, something his administration is cynically portraying as some sort of cruel obstacle to their benevolence, rather than the way our democratic process works. So the administration has once again extended a moratorium on student loan payment collection that was first issued at the start of the COVID-19 pandemic. The payment moratorium—which has now been extended nine times, including six times under President Biden—was set to expire on January 1, 2023. It will now be extended until 60 days after court cases regarding the debt forgiveness plan are resolved or, if they are not resolved by the end of next June, 60 days after that.

For Republicans, this means fighting to keep in place an immigrant expulsion measure known as Title 42—also invoked in the early days of the coronavirus pandemic to justify an extraordinary policy. Part of the Public Health Service Act, it says the federal government can take emergency steps to stop the spread of disease. The Trump administration cited it as grounds for the immediate expulsion of migrants caught crossing U.S. borders and for denying these migrants the opportunity to apply for asylum.

"Between March 2020 and August 2022, U.S. border officials carried out over 2 million Title 42 migrant expulsions," noted Reason's Fiona Harrigan recently. "Former CDC Director Robert Redfield extended the Title 42 order for one month and then indefinitely. The Biden administration sometimes fought to keep the order in place and then tried to rescind it, only to be challenged by a federal judge."

Earlier this month, the U.S. District Court for the District of Columbia vacated the order. Under the ruling, it would cease to apply on December 21.

Now, 15 states—all but one led by Republicans—filed a motion to intervene in the case, which would allow them to fight to keep the immigrant expulsion order in place. The motion was filed by the attorneys general of Alabama, Alaska, Arizona, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia, West Virginia, and Wyoming.

Even as Republican leaders have largely opposed extending public health measures based on pandemic concerns, these states are still citing COVID-19 as justification for keeping immigrants out. States have an interest in "excluding persons carrying communicable diseases," states their motion.

"The states mistakenly believe Title 42 can be used for general border enforcement," Lee Gelernt of the American Civil Liberties Union told The New York Times. "But it is a limited public health provision, and these states have not remotely shown that they need Title 42 for public health reasons."


FREE MINDS

A questionable consensus on autism treatment. In The Boston Globe, John Summers takes a fascinating look at the evidence—or lack thereof—guiding treatment for autistic kids in America. Known as Applied Behavior Analysis (ABA), it's based on discredited theories of behaviorist B.F. Skinner.

"Legislatures in most states, including Massachusetts, have responded to the rapid acceleration of autism diagnoses by mandating insurance coverage of ABA," notes Summers. "Early Intervention, a federally funded program serving children from birth to 3 years, steers children diagnosed with autism into ABA programs."

And yet there's little data on whether ABA programs are actually effective and in Summer's own experience with an autistic son, it has not been. "To my knowledge, only one large-scale outcomes analysis has been undertaken by government," writes Summers:

That is the US Department of Defense's ongoing "Autism Care Demonstration," a multiyear assessment of claims made in the military's insurance program. "The Department remains very concerned," the 2021 report concluded, as "almost half of the participants are experiencing no change or worsening symptoms after two years of ABA services." The data showed no correlation between treatment intensity and outcomes. Of the improvements that were imputed to ABA, the Pentagon's report questioned whether they were "clinically significant." ABA's own research standards, the report said, "do not meet our hierarchy of evidence standard for medical and proven care."

Read the whole thing here.


FREE MARKETS

Fauci to be deposed in social media case today. Anthony Fauci is scheduled to be deposed today in a case accusing the Biden administration of improperly pressuring social media companies to suppress information about COVID-19. The case was filed by attorneys general of Missouri and Louisiana (both Republicans). "We all deserve to know how involved Dr. Fauci was in the censorship of the American people during the COVID pandemic," Lousiana Attorney General Jeff Landry said in a statement yesterday. "Tomorrow, I hope to find out."


QUICK HITS

• Seven people were killed after a gunman opened fire at a Walmart in Chesapeake, Virginia.

• The U.S. Court of Appeals for the 5th Circuit says the Horseracing Integrity and Safety Authority, created by Congress in 2020, is unconstitutional, representing the "vesting government power in a private entity not accountable to the people."

• Mandatory life sentences for minors convicted of certain crimes are unconstitutional, says the Tennessee Supreme Court.

• Ohioan Dean Gillispie was awarded $45 million in a wrongful imprisonment lawsuit. Gillispie "sued Miami Township police and former detective Scott Moore for suppressing evidence and tainting eyewitness identifications in the 1991 rape and kidnapping case against Gillispie," notes USA Today. Moore's moves sent Gillispie to prison for more than 20 years.

• New York just enacted a two-year moratorium on cryptocurrency mining.

• "Britain's Supreme Court has ruled that Scotland's government cannot unilaterally hold a second referendum on whether to secede from the United Kingdom, in a blow to independence campaigners that will be welcomed by Westminster's pro-union establishment," reports CNN.

The post The Pandemic Is Over, Except When Politicians Need It To Justify Their Plans appeared first on Reason.com.

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Today in Supreme Court History: November 23, 1804 https://reason.com/volokh/2022/11/23/today-in-supreme-court-history-november-23-1804-4/ https://reason.com/volokh/2022/11/23/today-in-supreme-court-history-november-23-1804-4/#comments Wed, 23 Nov 2022 12:00:57 +0000 https://reason.com/?post_type=volokh-post&p=8178816 11/23/1804: President Franklin Pierce's birthday. He would appoint Justice John Archibald Campbell to the Supreme Court.

President Pierce appointed Justice Campbell to the Supreme Court

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Free Speech on Twitter? Not If Europe Has a Say https://reason.com/2022/11/23/free-speech-on-twitter-not-if-europe-has-a-say/ https://reason.com/2022/11/23/free-speech-on-twitter-not-if-europe-has-a-say/#comments Wed, 23 Nov 2022 12:00:30 +0000 https://reason.com/?p=8212697 Twitter logo and European Union flag

Elon Musk's "free speech absolutist" version of Twitter is looking more like a platform moderated with a lighter and less-partisan hand than a free-for-all, but even that is too much for critics. Some warn that free speech is dangerous. Others hint that app stores might ban Twitter to spare users from the peril of slightly less-filtered discussion. And our friends across the Atlantic are doing their best to live up to fears of the European Union as a totalitarian project by threatening old-fashioned government censorship.

Twitter "is in the process of reducing moderators, but will have to increase them in Europe," EU Internal Market Commissioner Thierry Breton huffed last week (article in French) about Musk's new regime at Twitter. "He will have to open his algorithms. We will have control, access, and people will no longer be able to say nonsense."

Breton pointed to the EU's new Digital Services Act (DSA) and a companion law addressing digital markets, which give Brussels-based regulators wide-ranging power to regulate internet businesses and, importantly, online speech. He wasn't alone.

"There are sound reasons to suggest that the standards applied by Twitter until now, may be weakened, at a time when the fight against election interference, misinformation and hate speech is more important than ever," EU lawmakers Dita Charanzová and Sophie in 't Veld wrote to the president of the European Parliament on Nov. 8.

The centrist legislators asked for Elon Musk to be summoned to a hearing to "remind Musk of his obligations under EU law and the 2022 Code of Practice on Disinformation." The European Parliament is poised to grant that request, reports Politico.eu. Musk isn't technically obligated to attend, but the EU has powerful legal weapons with which to torment those who defy official whims.

Chief among those weapons is the above-mentioned and recently enacted Digital Services Act, which threatens hefty fines of up to six percent of global turnover and even outright bans on platforms that don't toe the line. Eurocrats peddle the legislation as a safeguard, but the law's strict rules for speech and harsh penalties for failure to promptly remove "unacceptable" content are nothing of the sort.

"The DSA does not strike the right balance between countering genuine online harms and safeguarding free speech," Jacob Mchangama, executive director of Copenhagen-based human-rights think tank Justitia, warned in April. "It will most likely result in a shrinking space for online expression, as social media companies are incentivized to delete massive amounts of perfectly legal content."

The DSA "gives way too much power to government agencies to flag and remove potentially illegal content and to uncover data about anonymous speakers," agrees the Electronic Frontier Foundation.

All this huffing, puffing, and threatening of legal penalties comes in response to the new owner of a social media company who might describe himself as a "free speech absolutist" but also says he'll allow greater, but not completely unmoderated, range for discussions.

"New Twitter policy is freedom of speech, but not freedom of reach," Musk tweeted last week. "Negative/hate tweets will be max deboosted & demonetized, so no ads or other revenue to Twitter."

That's the policy that has eurocrats so hot and bothered—a promise to broaden boundaries for discussion, but to make unpleasant speech unprofitable and difficult to find. To American sensibilities, that's a rather tepid commitment to free speech.

"It's your company, so you're free to enact any policy you like," former Rep. Justin Amash, a Michigan Libertarian, responded to Musk. "But free speech includes speech that challenges and sometimes offends others. That's how people grow. Making 'negative' tweets harder to find hurts this process, and there's no way this policy can be applied evenly."

Well, many Americans find this version of free speech unimpressive; some are of a more European bent.

"For a free speech absolutist to take control of a platform like Twitter, where so many people spend their time and when there's where there's a lot of debate going on, this is not just about, you know, allowing a free speech free-for-all. This is about eventually silencing marginalized voices," fretted Nina Jankowicz, who briefly threatened to head a federal Disinformation Governance Board before the project was scrapped. "That free speech free-for-all is going to mean less speech for marginalized groups."

Jankowicz described the horrors of being publicly criticized over her interrupted government job, so perhaps she considers political appointees "marginalized." She is certainly no fan of unfettered speech.

At Fast Company, Clint Rainey wistfully speculated that "if Musk's laissez-faire approach to moderation ends up putting Twitter at odds with developer policies on the major app stores, Musk's platforming of hateful content could get Twitter itself deplatformed."

Once again, a policy of somewhat lighter moderation is characterized as free rein for nastiness, with a hint that tech companies might do what is forbidden to the U.S. government by the First Amendment. In fact, Europe's restrictive rules may ensure exactly that. It's easier for global businesses to apply Europe's regulations everywhere than to vary policies by country. Platforms like Twitter risk the wrath of EU regulators when speech inevitably bleeds across digital borders.

"The Brussels Effect entails that the EU does not need to impose its standards coercively on anyone—market forces alone are often sufficient to convert the EU standard into the global standard as multinational companies voluntarily extend the EU rule to govern their global operations," wrote Columbia Law School's Anu Bradford, author of The Brussels Effect: How the European Union Rules the World (2019).

That's unfortunate, because the international trend is towards greater censorship via rules imposed by places like Europe.

"Free speech has been on global decline for more than a decade," Denmark's Justitia notes while announcing a conference on the future of free speech for December in Copenhagen. "Even in open societies, the democratization and virality of online speech are increasingly seen as a threat rather than a precondition for well-functioning, free, tolerant and pluralist societies."

Whatever Elon Musk's ultimate plans for Twitter, EU officials seem determined to ensure that a free speech conference held on their turf will be a downbeat affair, and to nudge the global environment for exchanging information and ideas in a decidedly restrictive direction.

The post Free Speech on Twitter? Not If Europe Has a Say appeared first on Reason.com.

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Brickbat: Adding Insult to Injury https://reason.com/2022/11/23/brickbat-adding-insult-to-injury/ https://reason.com/2022/11/23/brickbat-adding-insult-to-injury/#comments Wed, 23 Nov 2022 09:00:14 +0000 https://reason.com/?p=8212415 Man in hospital bed

While attorney Matt Tucker was in a hospital bed recovering from a stroke, Clayton Country, Ga., Judge Shana Rooks Malone was attacking him on national TV, saying she was going to hold him in contempt for missing court. Tucker is representing a woman in a murder case. He had a stroke two days before jury selection was supposed to begin. Tucker claims his office emailed the judge to let her know. His client told the judge in court about Tucker's medical emergency, and Tucker said he doesn't understand why Malone didn't believe her.

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The Pilgrims Dreamed of Socialism. Then Socialism Almost Killed Them. https://reason.com/2022/11/23/the-pilgrims-dreamed-of-socialism-then-socialism-almost-killed-them/ https://reason.com/2022/11/23/the-pilgrims-dreamed-of-socialism-then-socialism-almost-killed-them/#comments Wed, 23 Nov 2022 05:30:43 +0000 https://reason.com/?p=8212713 John Stossel dressed in a Pilgrim costume stands next to a sign that says "Happy Starvation Day"

Thursday, if you eat a nice meal, thank the Pilgrims. They made Thanksgiving possible.

They left the Old World to escape religious persecution. They imagined a new society where everyone worked together and shared everything.

In other words, they dreamed of socialism. Socialism then almost killed them.

As I explain in my weekly video, the Pilgrims attempted collective farming. The whole community decided when and how much to plant, when to harvest, and who would do the work.

Gov. William Bradford wrote in his diary that he thought that taking away property and bringing it into a commonwealth would make the Pilgrims "happy and flourishing."

It didn't. Soon, there wasn't enough food. "No supply was heard of," wrote Bradford, "neither knew they when they might expect any."

The problem, Bradford realized, was that no one wanted to work. Everyone relied on others to do the work. Some people pretended to be injured. Others stole food.

The communal system, Bradford wrote, "was found to breed much confusion and discontent and retard much employment."

Young men complained they had to "spend their time and strength to work for other men's wives and children without any recompense."

Strong men thought it was an "injustice" they had to do more than weaker men without more compensation.

Older men thought that working as much as young men was "indignity and disrespect."

Women who cooked and cleaned "deemed it a kind of slavery."

The Pilgrims had run into the "tragedy of the commons." No individual Pilgrim owned crops they grew, so no individual had much incentive to work.

Bradford's solution: private property.

He assigned every family a parcel of land so they could grow their own corn. "It made all hands very industrious, so as much more corn was planted than otherwise would have been," he wrote.

People who had claimed that "weakness and inability" made them unable to work now were eager to work. "Women now went willingly into the field, and took their little ones with them to set corn," wrote Bradford.

The Pilgrims learned an important lesson about private property.

Unfortunately, people keep repeating the Pilgrims' mistakes.

Socialism is more popular than capitalism among college students. Many want everything shared, including their student loan debt.

President Joe Biden wants to give them that by forgiving some of their student debt.

Of course, then the debt would become a common to be repaid by all taxpayers.

That would punish people who had long ago paid off their debt.

It would punish people who studied, worked hard, got jobs, and were working to pay off college loans.

It would people who went to trade school or no school at all.

It would punish poor people because student loans are mostly held by the relatively rich.

Government granted student loans already create bad incentives.

People who don't like or benefit from college are encouraged to take out loans they can't afford and go to expensive colleges anyway.

Colleges increase their tuition, knowing that government will pay what students don't.
Forgiving student debt would make all that worse.

Fortunately, Biden's student loan forgiveness program ran up against legal challenges. I hope it's dead.

Students should learn from the Pilgrims: take responsibility for your own debt, work hard to pay it off, and don't expect the public to fund your bad decisions.

Bottom line: In a common, everybody takes as much as they can. That creates shortages.

Private property creates prosperity.

Every Thanksgiving, I'm thankful for that.

COPYRIGHT 2022 BY JFS PRODUCTIONS INC.

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California's COVID-19 'Misinformation' Law Chills Constitutionally Protected Speech https://reason.com/2022/11/23/californias-covid-19-misinformation-law-chills-constitutionally-protected-speech/ https://reason.com/2022/11/23/californias-covid-19-misinformation-law-chills-constitutionally-protected-speech/#comments Wed, 23 Nov 2022 05:01:55 +0000 https://reason.com/?p=8212681 California Governor Gavin Newsom

The New Civil Liberties Alliance (NCLA), which Columbia legal scholar Philip Hamburger founded in 2017, cheekily describes itself as "a civil libertarian alternative to the ACLU that actually cares about the rights in the Constitution." It therefore may seem surprising that two California chapters of the American Civil Liberties Union (ACLU) have joined the NCLA in opposing a new California law that expands the state medical board's authority to discipline doctors for "unprofessional conduct."

That alliance is less surprising once you read A.B. 2098, which threatens to punish physicians for sharing COVID-19 "misinformation" with their patients. The law, which is scheduled to take effect on January 1, defines "misinformation" as advice "contradicted by contemporary scientific consensus"—an open invitation to suppression of constitutionally protected speech.

In a federal lawsuit it filed this month on behalf of five California physicians, the NCLA argues that A.B. 2098 is unconstitutionally vague and inconsistent with the First Amendment. The Liberty Justice Center* (LJC), which is representing two other doctors, makes similar claims in a lawsuit it filed last month.

The Southern and Northern California chapters of the ACLU concur in a brief they recently filed in support of the LJC's lawsuit. They say A.B. 2098, which the LJC calls the "Physician Censorship Law," is gratuitous and unconstitutional.

Legislators who supported A.B. 2098 said they were worried that doctors might prescribe ineffective and potentially dangerous treatments for COVID-19. But existing regulations already give California's medical board the authority to take action against doctors for "gross negligence," "repeated negligent acts," "incompetence," and "any act involving dishonesty or corruption."

California courts "have long interpreted the types of conduct the Legislature was concerned about—such as failing to provide patients with sufficient information to make informed health choices, committing medical fraud, and providing patients with medically inappropriate treatment—as falling under" that rule, the ACLU brief notes. "Indeed, when considering AB 2098, the Legislature acknowledged that the [medical board] was 'already fully capable of bringing an accusation against a physician for this type of misconduct.'"

The new law, by contrast, makes physicians subject to discipline for sharing their honest opinions regarding COVID-19 if the medical board thinks they deviate from the "scientific consensus," a term the law does not define. That nebulous standard poses a due process problem, since the law does not give doctors fair notice of which conduct it reaches. It also poses a free speech problem, since it encourages self-censorship.

Given the "ambiguities" inherent in the state's new definition of unprofessional conduct, the ACLU brief says, "physicians will be loath to speak their minds and share their opinions with patients about a rapidly evolving disease with many unknowns. At any point, the State could determine that a physician has violated AB 2098 [by] sharing an unconventional opinion and go after their medical license."

While some unconventional opinions may amount to quackery, others may ultimately be vindicated. Over the course of the COVID-19 pandemic, the conventional wisdom on subjects such as intubation of patients, the utility of cloth face masks, isolation periods, and the effectiveness of vaccines in preventing virus transmission has shifted repeatedly in response to emerging evidence.

In addition to violating doctors' freedom of speech, A.B. 2098 undermines that discovery process. It tells skeptical physicians to keep their mouths shut, lest they endanger their licenses and livelihoods by candidly sharing their opinions.

When he signed A.B. 2098 into law at the end of September, California Gov. Gavin Newsom acknowledged that legislative responses to COVID-19 "misinformation" could have a "chilling effect" on conversations between physicians and patients. But he claimed the bill was "narrowly tailored" to cover doctors "acting with malicious intent" or "clearly deviating from the required standard of care."

If that were true, the law would be redundant. But contrary to Newsom's wishful thinking, the law will be enforced as written, and that prospect should alarm anyone who actually cares about the rights in the Constitution.

© Copyright 2022 by Creators Syndicate Inc.

*CORRECTION: The name of the organization is the Liberty Justice Center, not the Justice Legal Center.

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Libel Lawsuit Filed over Finding Kendrick Johnson Documentary https://reason.com/volokh/2022/11/22/libel-lawsuit-filed-over-finding-kendrick-bell-documentary/ https://reason.com/volokh/2022/11/22/libel-lawsuit-filed-over-finding-kendrick-bell-documentary/#comments Wed, 23 Nov 2022 00:35:13 +0000 https://reason.com/?post_type=volokh-post&p=8212751 From a Complaint filed today in Bell v. Pollock (paragraph numbers omitted):

On July 30, 2021, the documentary film Finding Kendrick Johnson (the "Documentary Film") was first released, and by December 27, 2021, it was available for internet users to stream on multiple online platforms…. The Documentary purports to tell the story of the murder of Kendrick Johnson (the "Decedent"), a Lowndes County High School student whose body was discovered in a rolled-up gym mat in the high school's gym in January 2013.

Defendants maliciously exploited the mysterious death of the Decedent and the imagery and controversy surrounding the Decedent's death to fabricate a wholly false narrative and profit financially by painting the Bells as modern-day versions of those responsible for one of America's most brutal and infamous hate crimes. The Documentary Film represents that the Decedent's death was a murder. The Documentary Film further portrays that the murder was the result of criminal acts committed by Brian and Branden, two other Lowndes County High School students who it represents had "problems" with the Decedent around the time of his death. Defendants present the central thesis of the film, which is that the Decedent's murder was a second iteration of the horrific, racially motivated murder of Emmett Till….

[T]he Documentary propagates a conspiracy theory that the Decedent's death was improperly ruled an accident, and it claims that Rick, the father of Brian and Branden, who worked as an FBI agent, engaged in a cover up operation to conceal his sons' involvement in the Decedent's murder.

The Documentary Film further states that Rick met with and intimidated potential witnesses. The Documentary Film also represents that Rick exploited his FBI connections to take the focus of the investigation off his sons to conceal their involvement in the Decedent's murder…. The Documentary Film also falsely maintains that Rick was forced to resign from his position after the Department of Justice discovered evidence of his "corruption" in relation to the investigation.

The claim published in the Documentary Film that Brian, with the assistance of Branden, played a role in the Decedent's death is obviously false to anyone who has conducted any inquiry into the facts surrounding the Decedent's unfortunate and mysterious death.

Of course, these assertions are just the allegations in the Complaint (and just some of the allegations; the Complaint is long). We'll see what happens to the case in court.

UPDATE: Whoops, I accidentally wrote the plaintiff's name as part of the documentary title ("Finding Kendrick Bell"); I've corrected it now.

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Court Blocks N.Y.'s Requirement of Express Owner Permission to Carry Guns on Private Property https://reason.com/volokh/2022/11/22/court-blocks-n-y-s-requirement-of-express-owner-permission-to-carry-guns-on-private-property/ https://reason.com/volokh/2022/11/22/court-blocks-n-y-s-requirement-of-express-owner-permission-to-carry-guns-on-private-property/#comments Tue, 22 Nov 2022 23:17:42 +0000 https://reason.com/?post_type=volokh-post&p=8212747 From a decision today by Judge John Sinatra (W.D.N.Y.) in Christian v. Nigrelli:

Another one of New York's new restrictions imposed in the immediate aftermath of the Supreme Court's Bruen decision is the private property exclusion. That new provision makes it a felony for a license holder to possess a firearm on all private property, unless the relevant property holders actually permit such possession with a sign or by express consent….

Property owners indeed have the right to exclude. But the state may not unilaterally exercise that right and, thereby, interfere with the Second Amendment rights of law-abiding citizens who seek to carry for self-defense outside of their own homes. Thus, the motion for a preliminary injunction enjoining Defendants' enforcement of this private property exclusion is granted.

I have to run to class, but hope to have a bit more on this tonight or tomorrow. Congratulations to David Thompson, John Tienken, Nicolas Rotsko, and Peter Patterson of Cooper & Kirk, who represent plaintiffs. Note: One of the plaintiffs is the Firearms Policy Coalition, for which I sometimes consult; I wasn't involved in this case.

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Cities Switch From Requiring Too Many Parking Spaces To Banning Too Many Parking Spaces https://reason.com/2022/11/22/cities-switch-from-requiring-too-many-parking-spaces-to-banning-too-many-parking-spaces/ https://reason.com/2022/11/22/cities-switch-from-requiring-too-many-parking-spaces-to-banning-too-many-parking-spaces/#comments Tue, 22 Nov 2022 22:00:38 +0000 https://reason.com/?p=8212721 A full parking garage

This past week, Nashville's Metro Council approved a new ordinance that eliminates minimum parking requirements in the city's "urban zoning overlay" district. From now on, developers in those urban zones won't have to build parking spaces no one wants.

That doesn't mean Nashville builders are free to decide how much parking to construct, however. The city's new ordinance leaves the old parking standards in place but says from now on they'll be interpreted as parking maximums that cap the number of spaces developers are allowed to build.

This is part of a trend.

Across the country, jurisdictions are waking up to the high costs of mandated parking. But the reforms they enact often pair an elimination of costly parking minimums with counterproductive parking maximums.

In 2021, Berkeley, California, passed reforms that eliminated minimum parking requirements while also capping how much parking could be built by right in "transit-rich" areas. It's a similar story in Minneapolis, which has eliminated parking minimums citywide but established parking maximums in certain areas of town.

The 2016 update to the zoning code in Washington, D.C., got rid of parking minimums for some downtown areas while also establishing new limits on above-ground parking garages. In 2015, Fayetteville, Arkansas, eliminated its parking minimums while keeping maximum parking ratios.

It's, of course, true that parking minimums are costly. These near-ubiquitous rules typically establish ratios of required parking spaces per new residential unit or for a given amount of new commercial floor space. To meet those minimums, developers often have to consume more land than they would otherwise or reduce the amount of rent-generating floor space they build.

On smaller lots, meeting parking minimums can often mean building incredibly expensive parking garages where each space can cost north of $75,000. Technically legal commercial uses are often rendered practically infeasible by minimum parking requirements.

But imposing parking maximums comes with its own costs.

At best, they'll force developers to make some special showing to city officials that their buildings will require more spaces than what the parking maximum allows in order to obtain a variance. The costs and delays of that process will be paid by consumers too.

Worse still, parking maximums could prevent builders from adding parking spaces they think are necessary.

The problem with parking minimums isn't per se that they made buildings more expensive; it's that they added expenses people don't think are worth paying.

If people are willing to pay for additional parking spaces but are prevented from having them, that will reduce the utility of a new development. Residents of a new apartment might have to compete for too few parking spaces. Business owners could lose customers for lack of available parking.

Multiply those results across a whole city, and overall economic efficiency suffers.

By imposing parking maximums, cities also make the case against parking minimums weaker.

The most compelling argument for ditching those policies is that you don't need the government micromanaging the number of parking spaces buildings need. You know it's a compelling argument because even policy makers who are continuing to micromanage parking spaces keep making it.

Eliminating parking minimums "doesn't mean that they can't build parking, that just means that these developments will not be overparked," Nashville Metro Councilmember Angie Henderson told The Tennessean. Similarly, Berkeley City Councilmember Lori Droste told Berkeleyside that "We're not banning parking…. We're just trying to not require people to build parking if they don't need it."

It's nice libertarian-sounding rhetoric. It's also untrue. Both cities are, in fact, banning parking above a certain threshold. If the government is still appointing itself the regulator of parking spaces, reasonable people can wonder what's so bad about requiring a minimum number of parking spaces in the first place.

Notably, California's statewide elimination of parking minimums near transit didn't come paired with a bunch of parking maximums. If it had, it likely would have faced a lot more opposition.

Cities that have eliminated parking minimums are seeing the benefits in terms of new businesses and apartments that would have been illegal or infeasible under the old rules.

The lesson is that developers can figure out for themselves how many parking spaces the ultimate users of their buildings will actually want. But too many cities are trying to find new ways to control developers' parking decisions.

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A Possible Railroad Strike During the Holiday Season Would Risk $2 Billion Per Day https://reason.com/2022/11/22/a-possible-railroad-strike-during-the-holiday-season-would-risk-2-billion-per-day/ https://reason.com/2022/11/22/a-possible-railroad-strike-during-the-holiday-season-would-risk-2-billion-per-day/#comments Tue, 22 Nov 2022 21:10:35 +0000 https://reason.com/?p=8212671 A train passes through a railroad crossing

A threatened railroad worker strike that appeared to have been derailed by the Biden administration is now back on track and chugging quickly toward the holiday season.

Four of the 12 unions representing workers on America's freight rail lines have voted to reject a new contract proposed by a special presidential mediation board, once again raising the possibility of an economy-crippling strike next month. The unions that rejected the deal are now indicating that they want additional concessions from the railroads beyond what was negotiated by the Biden administration during the summer, The Wall Street Journal reports.

Those last-second negotiations by the Presidential Emergency Board (PEB) seemed to have averted a threatened strike. Though the details of the proposed contract were not made public, the unions reportedly scored several of their top priorities, including graduated pay increases of 24 percent that will be doled out over several years and five annual payments of $1,000 to all union members (a major carrot to get workers to approve the new deal). However, the unions did not receive paid sick leave—which the Biden administration opposed for being "very costly."

The lack of paid sick leave in the contract seems to be the major sticking point for the unions that are once again threatening to strike.

"This is the railroads' last chance to do the right thing by voluntarily agreeing to provide paid sick leave to all employees," warned the Brotherhood of Maintenance of Way Employes (BMWE), one of the four unions that rejected the deal, in a statement. "If the railroads fail to give up one penny of every dollar of profit for paid sick leave for their highly valued employees by December 8th, and there is either a strike or lockout or both, then the railroads will be responsible for the imposition of a shutdown of their operations and the economic harms to its customers, the country's economic supply chain and the entire U.S. economy."

The unions have asked for 15 paid sick days per year, but the railroads settled on giving one additional personal day on top of existing vacation allowances, Reuters reports. A potential shutdown—the result of either a strike or a lockout—could cost the U.S. economy as much as $2 billion per day, according to the news agency.

It is possible that the conflict gets settled without further intervention from the federal government, but both the White House and Congress could put more pressure on the two sides. Sens. Richard Burr (R–N.C.) and Roger Wicker (R–Miss.) have introduced a bill that would prohibit a strike and force the unions to accept the PEB-authored contract, which could be the ultimate last-gasp plan to avoid a devastating strike.

"There's no counterproposal in Congress to rewrite the PEB's agreement to give the unions what they want," notes Sean Higgins, a research fellow at the Competitive Enterprise Institute, a free market think tank. "In short, the holdout unions don't have a strong hand to play this time. They probably know this and are just pushing things as far as they can."

Indeed, the U.S. Chamber of Commerce responded to the new strike threats by immediately asking Congress to get involved. "Congress must now impose the deal President Biden negotiated, and the railroads and union leadership agreed to," Suzanne P. Clark, president and CEO of the chamber, said in an emailed statement. "If Congress fails to do so, a rail strike would substantially exacerbate inflation and the economic challenges Americans are facing today."

Everything at this stage is a negotiating tactic, but it is hard to believe that Congress and the White House would allow the unions to hold a huge swath of the U.S. economy hostage in the weeks before Christmas.

That's especially true because even the labor-friendly Biden administration has shunned the unions' request for 15 days of paid sick leave. That proposal would be "an overly broad and very costly proposal," Biden's PEB wrote in its final report on the agreement that the unions recently voted on. If adopted, it "would create 15 paid days a year that, while nominally labeled as sick leave days, would be structured to be used on demand as a means of permitting employees to better balance work-life needs and would effectively be personal days."

The four unions that rejected that proposal are probably hoping that the railroads will offer a more limited sick leave package in order to avoid a strike. It would obviously be preferable to see the two sides come to an agreement that does not require further intervention from the federal government. But there's no doubt that the unions are playing a dangerous game by putting a strike back on the timetable.

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Oregon Governor Pardons 45,000 Marijuana Offenders https://reason.com/2022/11/22/oregon-governor-pardons-45000-marijuana-offenders/ https://reason.com/2022/11/22/oregon-governor-pardons-45000-marijuana-offenders/#comments Tue, 22 Nov 2022 18:18:53 +0000 https://reason.com/?p=8212674 beautiful purple and green marijuana bud

Democratic Oregon Gov. Kate Brown announced yesterday she will pardon 45,000 people convicted of simple possession of marijuana, in one of the largest uses of the pardon power by a governor to wipe weed offenses off the books.

Brown's office says the pardons will remove 47,144 convictions for possession of a small amount of marijuana from individual records and forgive more than $14 million in associated fines and fees.

"No one deserves to be forever saddled with the impacts of a conviction for simple possession of marijuana—a crime that is no longer on the books in Oregon," Brown said in a press release. "Oregonians should never face housing insecurity, employment barriers, and educational obstacles as a result of doing something that is now completely legal, and has been for years. My pardon will remove these hardships."

Brown's announcement follow similar actions by President Joe Biden, who announced in October that he was pardoning roughly 6,500 people with prior federal convictions for simple possession of marijuana.

As Reason's Jacob Sullum wrote, Biden's pardons were a welcome step, but the actual impact of his orders will be modest:

His blanket pardon for low-level marijuana offenders, while long overdue, will affect a small percentage of people with federal drug records. Without new legislation, marijuana use will remain a crime under federal law, as will growing and selling marijuana. And while rescheduling marijuana will make medical research easier, it will not make cannabis legally available to patients unless and until the Food and Drug Administration (FDA) approves specific products as safe and effective….

To put the impact of Biden's mass pardon in perspective, about 400,000 people are currently incarcerated for drug offenses in the United States, including about 67,000 federal prisoners. During the last two decades, police typically made between 1.5 million and 1.9 million drug arrests every year. In recent years, marijuana arrests have accounted for more than a third of the total, and the vast majority of those cases (92 percent in 2019) involved possession rather than cultivation or trafficking.

Still, the broad, largely unencumbered clemency powers wielded by governors and the president are one of the fastest and most direct ways to alleviate the injustices of the drug war. In 2019, Democratic Illinois Gov. JB Pritzker granted roughly 11,000 pardons for low-level marijuana convictions, and in 2021 Democratic Colorado Gov. Jared Polis pardoned 1,351 convictions for possession of two ounces or less of marijuana.

Civil liberties groups applauded Brown's actions and urged other governors to follow suit.

"By embracing the power of clemency, Governor Brown and President Biden have taken significant first steps in addressing unfair sentences and racial disparities in our criminal legal system," Cynthia W. Roseberry, acting director of the ACLU's justice division, said in a press statement. "But we cannot stop here. We call on other governors with clemency authority to correct past wrongs, and embrace the power of redemption."

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The Horseracing Case, Part 2: Private Delegation Before and After Schechter Poultry https://reason.com/volokh/2022/11/22/the-horseracing-case-part-2-private-delegation-before-and-after-schechter-poultry/ https://reason.com/volokh/2022/11/22/the-horseracing-case-part-2-private-delegation-before-and-after-schechter-poultry/#comments Tue, 22 Nov 2022 15:47:48 +0000 https://reason.com/?post_type=volokh-post&p=8212648 This is one of a series of posts on the Fifth Circuit's recent "private nondelegation case", National Horsemen's Benevolent & Protective Ass'n v. Black, where it struck down the Horseracing Integrity and Safety Act for delegating power to a private organization, the Horseracing Integrity and Safety Authority. In yesterday's post, I explained how A.L.A. Schechter Poultry Corp. v. United States (1935), the main case that proponents of a "private nondelegation doctrine" usually rely on, gives no support to any view that delegations are judged more harshly if the recipient of the delegation is private instead of public.

Today, I'll talk about private delegations before and after Schechter Poultry—the bottom line is that the Supreme Court has actually upheld private delegations on at least four occasions. Two of those were before Schechter Poultry, and Schechter Poultry actually mentioned them as examples of cases where private delegations were acceptable. Two of them were after Schechter Poultry. In two of the cases, the Court explained why the delegation was unconstitutional by analogizing the delegation to a delegation to a public party—which shows that the private nature of the delegate wasn't relevant. None of these cases—neither Schechter Poultry nor the other four—has ever been overruled, and some of them (particularly Schechter Poultry, which approved of two of those cases) continue to be cited regularly.

And this makes sense: the Article I Nondelegation Doctrine is about how Congress can't give up too much power; so far, the formulation it's used is whether the delegate is limited by an "intelligible principle". Provided that's present and Congress hasn't given up too much power, what does it matter who has been the recipient of the power? There might be other principles at work (I'm looking at you, Due Process Clause or Appointments Clause), but the Article I Nondelegation Doctrine doesn't seem to be one of them.

Alas, Schechter Poultry has been mischaracterized since then. In a couple of cases since Schechter Poultry, the Court has mischaracterized that case—when it has upheld a delegation, it has sometimes distinguished Schechter Poultry on the ground that it involved a private delegation. This was clearly wrong, but fortunately it's only dictum, and fortunately I've only found a handful of instances of this in Supreme Court caselaw. So the strongest case that there's a private Article I nondelegation doctrine stems from dictum in a couple of 1940s cases.


* * *

Let's look at these four cases in detail. (I won't do this in chronological order, but in an order that makes sense for explaining the principles involved.)

First, there's Currin v. Wallace (1939). Currin concerned a challenge to the Tobacco Inspection Act of 1935. The Act authorized the Secretary of Agriculture to establish uniform standards for tobacco, and designate tobacco markets where no tobacco could be sold unless it was inspected and certified according to those standards. But the Secretary couldn't designate a market unless two-thirds of the growers in that market voted in favor of the designation in a referendum. Industry members thus held an "on-off" power to decide whether predetermined regulations would go into effect.

Is this a delegation subject to the Article I Nondelegation Doctrine? Yes: an "on-off" power to determine the applicability of legal norms isn't a trivial power, and it becomes a (forbidden) delegation of legislative authority if not adequately circumscribed. At least once—in Panama Refining Co. v. Ryan (1935)—the Supreme Court struck down a delegation of an "on-off" power to the president on those grounds, holding that the president lacked statutory guidance as to whether to exercise the power. In other cases, the Supreme Court has upheld the delegation of such an "on-off" power, but it was clear that the validity of the delegation had to be analyzed under the Article I Nondelegation Doctrine.

The Currin Court upheld the delegation to the industry members. The Court held that the delegation was comparable to the delegation to the president of the power to determine the difference in production costs between countries and set tariffs that equalized those costs—which had been upheld in J.W. Hampton, Jr., & Co. v. United States (1928). Therefore, the delegation of power to industry did "not involve any delegation of legislative authority."

Did the Currin Court say anything negative about the industry members' being private citizens? No, and in fact it implied the contrary: in analogizing the case to J.W. Hampton, it explicitly treated a federal official (the president!) and private citizens as equivalent in terms of whether Congress could delegate an "on-off" power to them:

Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an executive, or, as often happens in matters of state legislation, it may be left to a popular vote of the residents of a district to be affected by the legislation.

In upholding this private delegation, the Currin Court closely followed its earlier analysis from St. Louis, Iron Mountain, & Southern Railway Co. v. Taylor (1908). A statute authorized a private group, the American Railway Association, to "designate to the Interstate Commerce Commission the standard height of drawbars for freight cars." The ICC was then directed to promulgate that height as law. This was challenged as "an unconstitutional delegation of legislative power to the railway association and to the [ICC]."

The Supreme Court rejected this argument in one paragraph, analogizing the case to Buttfield v. Stranahan (1904)—a case about delegating tea-inspecting authority to the Secretary of the Treasury. Here, too, it was clear that the Court didn't consider the delegate's private status relevant. Decades later (a few years before Currin), in Schechter Poultry, the Court explicitly listed this case as one where private delegations were unproblematic.

Another case cited in Schechter Poultry as an example of an unproblematic private delegation was Butte City Water v. Baker (1905). There, the Supreme Court upheld the power of Congress, as part of its power to make regulations for public lands, to delegate rulemaking authority to miners in local mining districts.

Finally, a few months after Currin, the Supreme Court upheld another private delegation in United States v. Rock Royal Co-operative, Inc. (1939). Rock Royal concerned a challenge to the Agricultural Marketing Agreement Act of 1937, a statute aimed at assisting in the marketing of agricultural commodities. The Act authorized the Secretary of Agriculture to make orders restoring parity prices for farmers of specific farm products. Orders could become effective in two ways: (1) consent of the handlers; or (2) two-thirds support from the producers (if the Secretary of Agriculture, with the president's approval, determined that the handlers' failure to consent obstructed the policy of the act). The Court held that a delegation to private parties of this "on-off" power to put an order into effect didn't violate the nondelegation doctrine. Again, no mention of private status.

In short, the Supreme Court has upheld delegations to private parties against Article I Nondelegation challenges at least four times, twice before Schechter Poultry and twice after. In Schechter Poultry, it explicitly cited the two prior cases as examples of unproblematic private delegations. And none of these cases have been repudiated. So there's no per se rule against such delegations.

And because, in Currin and St. Louis Railway, the Court upheld the private delegations by explicitly analogizing them to delegations to public officials, without expressing any reservations based on private status, the Article I Nondelegation Doctrine doesn't distinguish between public and private parties. This makes sense: it's all about how much power Congress has given up, not who gets the power.

* * *

The Supreme Court has sometimes forgotten this history, and has even forgotten what Schechter Poultry was about.

Remember yesterday's post: there was no private delegation in Schechter Poultry; the industry associations' power was limited to proposing "codes of fair competition". The codes didn't go into effect unless approved by the president; the president wasn't required to approve the codes; he was allowed to modify them in various ways; and he was also allowed to promulgate codes on his own motion or on complaint if a code hadn't been approved. So the industry groups had no formal power at all (though admittedly their ability to propose codes gave them a lot of informal power).

Accordingly, the Supreme Court—after a burst of rhetoric against delegation to private groups—went on to analyze the delegation to the president; the conclusion is that, even if we took the case as holding that unconstrained industry delegations are unconstitutional, the holding of the case says: so are unconstrained delegations to the president. (The administration of the codes did involve "industry advisory committee[s]" to be appointed by industry members, but the Court's nondelegation discussion concerned the promulgation of the codes themselves, not their administration.)

Still, in Yakus v. United States (1944), the Supreme Court said, in upholding a wartime price control statute:

The Act is unlike the National Industrial Recovery Act . . . considered in Schechter Corp. . . . . [That act] prescribed no method of attaining that end save by the establishment of codes of fair competition, the nature of whose permissible provisions was left undefined. It provided no standards to which those codes were to conform. The function of formulating the codes was delegated not to a public official responsible to Congress or the Executive, but to private individuals engaged in the industries to be regulated. Compare Sunshine Coal Co. v. Adkins.

The reference to Sunshine Anthracite Coal Co. v. Adkins is funny. The signal "Compare" indicates that Sunshine Anthracite doesn't suffer from the problems that plagued Schechter Poultry. Here, the Court upheld a delegation to an agency on the grounds that the agency had sufficient standards. But the Court also denied that there was a delegation to industry: "Nor has Congress delegated its legislative authority to the industry. The members of the code function subordinately to the Commission. It, not the code authorities, determines the prices. And it has authority and surveillance over the activities of these authorities. Since lawmaking is not entrusted to the industry, this statutory scheme is unquestionably valid." Fair enough . . . but this is not too different from industry's subordinate position in Schechter Poultry.

Then, in Rice v. Board of Trade of City of Chicago (1947), it upheld a delegation by saying, in a footnote: "We therefore have no attempt here to endow private groups with lawmaking functions. Cf. Schechter Poultry [and two other cases involving antitrust, not con law]."

Then, in Fahey v. Mallonee (1947), the Court distinguished the delegation in that case from Schechter Poultry and Panama Refining Co. v. Ryan, the two 1935 cases where the Court struck down statutes under the nondelegation doctrine: "Both cited cases dealt with delegation of a power to make federal crimes of acts that never had been such before and to devise novel rules of law in a field in which there had been no settled law or custom. [Schechter Poultry] also involved delegation to private groups, as well as to public authorities."

That's three mentions in 1940s cases—fortunately all dictum. (I could add a mention in a Brennan concurrence in the result in United States v. Robel (1967) and another mention in a Breyer dissent in Clinton v. City of New York (1998).) So the strongest case that the Supreme Court has established a "private nondelegation doctrine" rooted in Article I and Schechter Poultry comes from dictum in three cases from the 1940s (as well as popular understandings of Schechter Poultry that are unsupported by the actual case).

The post The Horseracing Case, Part 2: Private Delegation Before and After Schechter Poultry appeared first on Reason.com.

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Alabama's Governor Calls for a Moratorium on Executions in the State https://reason.com/2022/11/22/alabamas-governor-calls-for-a-moratorium-on-executions-in-the-state/ https://reason.com/2022/11/22/alabamas-governor-calls-for-a-moratorium-on-executions-in-the-state/#comments Tue, 22 Nov 2022 15:17:01 +0000 https://reason.com/?p=8212641 Alabama Governor Kay Ivey

On Monday, Alabama Governor Kay Ivey (R) announced that she was seeking a moratorium on executions in the state, following the third botched lethal injection execution in recent months. While Ivey is still a stringent supporter of the state's death penalty, this pause in executions will likely continue until an internal investigation into the state's practices is concluded.

In a press release sent Monday, Ivey wrote that she had requested that Alabama Attorney General Steve Marshall withdraw pending motions attempting to schedule the execution dates of two inmates, as well as requested that he refrain from scheduling additional executions until the state's Department of Corrections can conduct a "top-to-bottom review of the state's execution process."

Over the past several months, Alabama has faced an unusually high number of unsuccessful attempts at lethal injection executions. The state has attempted to execute three men, each with considerable difficulty locating the inmate's veins. While the state did successfully execute Joe Nathan James in July, they did so only after a three-hour delay. While the state remains tight-lipped on what exactly happened, an investigation published in The Atlantic argued that the state likely spent hours jabbing James with needles, possibly resorting to physically cutting his arm open in an attempt to find a vein. Following James' death, two more men—Kenneth Eugene Smith and Alan Eugene Miller—had their executions halted after prison officials were unable to successfully place a line for the lethal injection.

These attempted executions have brought increased scrutiny to the state's prison system, apparently motivating Ivey to call for the moratorium. However, anti-death penalty advocates should not mistake Ivey's pause on executions to mean she no longer approves of the practice.

"For the sake of the victims and their families, we've got to get this right," Ivey wrote in Monday's press release. "I don't buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here."

In her statement, Ivey further emphasizes that the review of execution practices will be to make Alabama better at killing death row inmates—seemingly to help victims' families—writing "I simply cannot, in good conscience, bring another victim's family to Holman [Correctional Facility] looking for justice and closure, until I am confident that we can carry out the legal sentence."

However, Ivey forgets that crime victims' families are not universally in favor of the death penalty. In fact, the family of Joe Nathan James' victim were in fact deeply opposed to his execution and called on the state to spare him. Like other politicians favoring the death penalty, Ivey relies on concern for victims' families only when they agree with the state's goal: killing death row inmates. When they disagree with the government's desires, they seem to not exist.

While Alabama's moratorium on executions comes as a welcome reprieve for those opposed to the death penalty—Ivey's continued support for the practice makes it clear that she seeks only a temporary pause in executions, not an end to the policy.

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Mastodon.com Is Not the Home of the Mastodon Social Network https://reason.com/volokh/2022/11/22/mastodon-com-is-not-the-home-of-the-mastodon-video-network/ https://reason.com/volokh/2022/11/22/mastodon-com-is-not-the-home-of-the-mastodon-video-network/#comments Tue, 22 Nov 2022 14:45:43 +0000 https://reason.com/?post_type=volokh-post&p=8212608 I inadvertently went there a few days ago instead of going to our Mastodon host, liberdon.com, and realized that the site is all about this:

Awesome, especially starting at about 1:25.

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Alabama Jails Woman for Endangering Her Fetus. She Wasn't Pregnant. https://reason.com/2022/11/22/alabama-jails-woman-for-endangering-her-fetus-she-wasnt-pregnant/ https://reason.com/2022/11/22/alabama-jails-woman-for-endangering-her-fetus-she-wasnt-pregnant/#comments Tue, 22 Nov 2022 14:32:32 +0000 https://reason.com/?p=8212612 negative pregnancy test

Lawsuit alleges false imprisonment after arrest for endangering fetus that didn't exist. Another Alabama woman has been jailed for using drugs while pregnant. But this time there's a twist: she wasn't actually pregnant. Her young child merely told a social worker that she was, according to the woman's lawsuit against local law enforcement in Etowah County.

There's an easy way to tell if someone is pregnant, of course, but authorities reportedly failed to administer a pregnancy test before booking Stacey Freeman into jail for about one and a half days. "Freeman offered to take a pregnancy test and Etowah County Department of Human Resources employees entered an order for one," according to AL.com. "However, she never took the test and Etowah County Sheriff Investigator Brandi Fuller issued a warrant for her arrest, according to the lawsuit."

Freeman was arrested for alleged "chemical endangerment of a child." Alabama's chemical endangerment of a child statute is frequently used against women who use any drugs, including marijuana, while pregnant. Convictions can mean up to 20 years in prison.

Etowah County is especially bad, according to the group Pregnancy Justice (formerly known as National Advocates for Pregnant Women). The county "has prosecuted more than 150 women on pregnancy-related charges in recent years," Pregnancy Justice said. "Of the more than 1,700 pregnancy-related criminalization cases Pregnancy Justice has documented from 1973 through 2020, Alabama leads the nation with more than 600 cases, and Etowah County leads the state."

Freeman is now suing Fuller and Etowah County Sheriff Jonathon Horton.

Fuller personally has made "an obscene number of arrests for pregnant and postpartum women," states Freeman's lawsuit. It alleges that "the Sheriff's department and its employees have been reckless in investigating in making arrests of women for chemical endangerment and then encouraging their prosecution."

Freeman claims she was menstruating when she was arrested and jailed—something that should have either been a telltale sign that she was not pregnant or warranted medical attention if she was. Freeman further alleges that jail staff would not give her feminine hygiene products.

Freeman's charges were eventually dropped, but not expunged. That means the case is still part of public record, stating that Freeman tested positive for alcohol, amphetamines, and marijuana while pregnant.

"It's good that the charges were dropped," Freeman's lawyer, Martin Weinberg, told AL.com. "But there's harm in someone even being arrested and spending two days in jail. Wrongful arrest and malicious arrest is problematic on its own."

Until recently, pregnant women jailed in Etowah County for chemical endangerment wouldn't be released unless they put up a $10,000 bond and agreed to enter in-patient rehab. The county changed this practice in September, following action from Pregnancy Justice and reporting from AL.com about Ashley Banks.

Banks was held in jail for three months after admitting to smoking pot on the day she found out she was pregnant. She and others "remained indefinitely jailed before trial because no treatment beds were available," noted Pregnancy Justice in September. "In Ms. Banks' case, she was found ineligible for inpatient drug treatment because she did not have a substance use disorder but still remained jailed for three months during her high-risk pregnancy."

Under the county's new policy, women must pay a $2,500 bond in order to be released, as well as fees for pretrial monitoring. They also have to submit to drug testing every 48 to 72 hours, according to Pregnancy Justice.


FREE MINDS

Jack Daniels can't take a joke. Talk about a self own: Liquor brand Jack Daniels is apparently worried that people will mistake a plastic bottle covered in dog poop jokes for its whiskey. The company has sued the maker of "Bad Spaniel," a dog toy designed to parody Jack Daniels. From CBS News:

The toy that got Jack Daniel's so doggone mad mimics the square shape of its whisky bottle as well as its black-and-white label and amber-colored liquor while adding what it calls "poop humor." While the original bottle has the words "Old No. 7 brand" and "Tennessee Sour Mash Whiskey," the parody proclaims: "The Old No. 2 on Your Tennessee Carpet."

Instead of the original's note that it is 40% alcohol by volume, the parody says it's "43% Poo by Vol." and "100% Smelly."

The toy retails for about $13 to $20 and the packaging notes in small font: "This product is not affiliated with Jack Daniel Distillery."

The Supreme Court has agreed to hear the case.


FREE MARKETS

Oregon has pardoned around 45,000 people with convictions for marijuana possession. Gov. Kate Brown announced yesterday that she is pardoning 47,144 convictions for possession of one ounce or less of marijuana, a move which will impact an estimated 45,000 people. The state will also forgive about $14 million in fines.


QUICK HITS

• The percentage of Americans supporting stricter gun laws has decreased since the summer. In a new Gallup poll, 57 percent of respondents said they favor stricter gun laws, down from 66 percent in June but up from 52 percent around this time last year.

• "Alabama Gov. Kay Ivey sought a pause in executions and ordered a 'top-to-bottom' review of the state's capital punishment system Monday after an unprecedented third failed lethal injection," the Associated Press reported.

• The U.S. needs more housing than anyone can imagine, suggested Annie Lowrey at The Atlantic.

• New York has started issuing licenses for recreational marijuana dispensaries.

Mother Jones makes the case that it's time to "free the pill."

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Oregon's Newly Legal Magic Mushroom Industry Could Be Strangled by Restrictive Zoning Regulations https://reason.com/2022/11/22/oregons-newly-legal-magic-mushroom-industry-could-be-strangled-by-restrictive-zoning-regulations/ https://reason.com/2022/11/22/oregons-newly-legal-magic-mushroom-industry-could-be-strangled-by-restrictive-zoning-regulations/#comments Tue, 22 Nov 2022 14:10:04 +0000 https://reason.com/?p=8212553 Glowing mushrooms

Magic mushrooms are starting to win the war on drugs in Oregon. Now comes the harder task of winning approval from local zoning officials.

Back in 2020, Beaver State voters passed the first-ever ballot initiative allowing adults 21 and up to consume psilocybin (the psychoactive ingredient in magic mushrooms) in special "psilocybin service centers" with a licensed "facilitator" present. Come January, the Oregon Health Authority will start accepting license applications for such centers.

To get ahead of the game, businesses have started acquiring rural properties that could serve as ideal mushroom retreat locations. Existing rural hospitality businesses have also expressed interest in expanding their operations to include psilocybin retreat services.

Many of these would-be operators are now running into a wall of local red tape.

The initiative that legalized magic mushroom businesses allows cities and counties to ban them via ballot initiative. Local governments also retain the power to craft "time, place, and manner" regulations over psilocybin businesses.

This past election, 25 of Oregon's 36 counties voted to ban psilocybin businesses, including four that voted to legalize psilocybin in 2020. Only two counties that put the questions to voters, Deschutes and Jackson counties, kept these businesses legal.

And this week, those two counties will consider new land use regulations that could severely restrict where newly legal "psilocybin service centers" can set up shop.

That includes Silo Wellness. The Canada-headquartered company already operates one psilocybin retreat in Jamaica, and it plans to open another one on a 960-acre ranch in unincorporated Jackson County.

Mike Arnold, founder of Silo Wellness, has said the property is ideal for his business given its physical beauty and minimal investments needed to make it trip-ready.

But earlier this month, Jackson County's planning commission almost axed that plan by proposing zoning regulations that would have restricted psilocybin businesses to the county's handful of "general commercial" zoned properties adjacent to Interstate 5.

"Highway noise and sirens aren't exactly the best setting for psychedelic therapy," said Arnold in a statement.

Testimony from Arnold and other pro-psilocybin residents and aspiring entrepreneurs saw the planning commission reverse itself slightly, reported Oregon Business. Following a November 10 meeting, commissioners produce a revised ordinance that would allow psilocybin businesses as home occupations and in rural areas.

These are just recommendations, however.

This week, the Jackson County Board of Commissioners will take up psilocybin zoning regulations. They could choose to adopt the planning commission's relatively light regulations or they could revert to the original plan to restrict these businesses to highway-adjacent commercial areas.

That means Silo Wellness isn't out of the woods yet. Arnold said in a press release that his company would consider litigation if more restrictive regulations are passed.

A similar process is playing out in Deschutes County, where the county Board of Commissioners held a public hearing on psilocybin regulations Monday.

There too, the county planning commission has recommended a relatively light-touch approach to regulating psilocybin centers. They've suggested allowing psilocybin businesses in large swaths of the county, including at existing resorts. They've also recommended allowing overnight stays at psilocybin centers, and permitted these centers to offer ancillary services like yoga and meditation.

But the Board could ultimately choose to adopt more restrictive regulations. And even the planning commission's recommended ordinance would still require psilocybin centers to go through expensive, discretionary site plan and conditional use approval processes.

Those requirements would come on top of all the Oregon Health Authority's regulations.

When marijuana was legalized in Oregon, it went through a similar journey. Voters approved a relatively liberal legalization ballot initiative. The legislature followed this up with more constricting regulations. Then a long list of local governments opted not to allow marijuana businesses. Those that did often imposed zoning regulations that made a lot of prime real estate off-limits to the new industry.

Given that history, it's perhaps unsurprising that local governments would want to tightly regulate legalized psychedelics facilities—given how novel and new they are.

Subjecting new industries to heavy regulation is nevertheless a great way to strangle them in the crib. A business as weird as legalized shrooms requires a lot of experimentation. And we shouldn't trust county commissions to design the perfect trip.

The post Oregon's Newly Legal Magic Mushroom Industry Could Be Strangled by Restrictive Zoning Regulations appeared first on Reason.com.

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Threatening Political Condemnation for Political Opposition Isn't Criminal Coercion https://reason.com/volokh/2022/11/22/threatening-political-condemnation-for-political-opposition-isnt-criminal-coercion/ https://reason.com/volokh/2022/11/22/threatening-political-condemnation-for-political-opposition-isnt-criminal-coercion/#comments Tue, 22 Nov 2022 14:03:38 +0000 https://reason.com/?post_type=volokh-post&p=8212351 In People v. Cannata, decided a year ago but just posted on Westlaw, defendant was being prosecuted for violating New York's third-degree coercion law, which in relevant part reads,

A person is guilty of coercion in the third degree when he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, …

by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will [among other things, such as causing physical injury,]

[5.] Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule;  or …

[9.] Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships.

New York City Court judge Nichelle Johnson threw out the charge:

The accusatory instrument alleges that on or about April 9, 2021 the defendant engaged in a telephone conversation with [Janice Duarte] during which defendant attempted to "broker" a political deal which is commonplace in politics. The Defendant stated in sum and substance that there were consequences for [Duarte's] brother's objection to defendant's petition to be on the Mount Vernon City Council ballot; that he took the objections personally; that if Ms. Duarte did not withdraw the petition objection it would be his singular focus between then and June 22nd to work against her individually and that he would do everything he could to tell every democrat they should not vote for her; that he would be ruthless and would send out weekly emails blasting her every chance he got; if he was off the ballot he would be attacking her personally by attacking what she had done on the council specifically mentioning her name; and he also stated that if his demand was not met he would bring a lawsuit against Duarte pursuant to the Mount Vernon City Charter, for waste.

He went on to state that he spent a lot of time and money and wanted to stay in the race for City Council and if she would withdraw the objections that would allow him to stay in the race in exchange, he would refrain from attacking her personally as to her political record as a city council person—a right he had but would not engage in if she agreed to withdraw. [Duarte] stated that others had challenged his signatures and the defendant informed her that the other party that had also objected to his petition had withdrawn his objections.

The accusatory instrument further alleges that on or about April 9, 2021 the defendant sent [Duarte] a sample of the email he referenced in the phone conversation. In the email the defendant informed the recipients that [Duarte] had attempted to get him thrown off the ballot instead of facing off with him in the race. He then went on to specify actions taken by the city council which included specifically mentioning [Duarte] by name and accusing her of waste and inaction. In addition, on or about April 11, 2021 the defendant sent [Duarte] a text message that stated the first political letter "will go out at 4:00 pm tomorrow if the objection is not withdrawn". On or about April 12, 2021 the defendant sent a mass email identical to the one forwarded to [Duarte] to registered democrats in the City of Mount Vernon. Again, a right he had as a candidate and citizen engaged in the political process.

While these allegations provide reasonable cause to believe that the defendant tried to compel or induce the complainant to engage in conduct which the complainant had a legal right to engage in by instilling in her a fear that, if the demand was not complied with that defendant would subject her to ruthless political and personal political attack they failed to provide reasonable cause to believe that the fear was that the defendant would 1) expose a secret or publicize an asserted fact, whether true or false, that would subject her to hatred contempt or ridicule; and 2) perform an act that would not, in itself, materially benefit defendant, but was calculated to harm complainant with respect to her health, safety, business, calling, career, financial condition, reputation or personal relationships. As a result, the accusatory is facially insufficient….

[T]he threat of exposing political misfeasance or malfeasance is protected political speech and is not the type of speech the crimes herein were targeting when it indicated hatred, contempt, or ridicule. This court agrees with the defense that while the political targeting of [Duarte] may expose her to political backlash from the public at large such is not the type of speech anticipated to be criminalized under this criminal statue. The prosecution in trying to posit that the speech was not all political by arguing that the Defendants use of the words "ruthless" and "personally" were words referencing something other than political speech, this court can only opine that this tenuous argument is being made because if the speech is only political the prosecution understands that they will have problems with the life of their dubious accusatory. However, a review of their own accusatory, and a complete review[—]one that follows the federal rule of completeness[—]establishes the fact that the defendant's threat was to expose only political issues regarding [Duarte]….

While the prosecution argued that it was the Defendant's action not his speech that they have a problem with—his threat to harm—the crime requires not just a threat but that it subject the person to hatred ridicule or contempt and if the speech is political, and this court finds that it was, then this court opines as the Defense asserts that there is no way the legislature meant for this political speech where opposing candidates subject each other to exactly what the statue criminalizes political hatred, ridicule and contempt. That is exactly what candidates for office attempt to do to each other….

With respect to [coercion under subsection 9], the Court finds that the threatened conduct as alleged would materially benefit the defendant. The defendant threatened that he would personally attack [Duarte] and would be ruthless in sending weekly emails to voters harshly criticizing her. Defendant then did, in fact, send an email that specifically targeted Ms. Duarte and her actions as a Mount Vernon City council member. This court finds that defendants conduct of attacking the complaining witness' political actions as a council member would enhance defendant's political candidacy to secure a coveted office of significance in the City of Mount Vernon…. The securing of a political office within a city especially wherein one gets elected by the residence of that City, brings much notoriety and prestige. Indeed, if the Defendant was successful in his political race, he would earn the title of "Honorable" and would be paid for his services as well….

Therefore, when considered, Defendants constitutional rights would be infringed if the allegations in the information establish that the attack towards Ms. Duarte from a political perspective intended to subject her to "hatred, contempt, or ridicule" as prescribed by the statute….

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