Month: August 2022

The state of California is attempting to outlaw doctors from communicating what authorities deem COVID-19 “misinformation” to their patients.

AB 2089, which passed the California legislature earlier this week, designates the dissemination of “misinformation or disinformation” relating to COVID-19 as “unprofessional conduct” for doctors. The text of the bill explains that its aim is to prevent doctors from giving patients information that contradicts the “contemporary scientific consensus.”

If California Gov. Gavin Newsom, a Democrat, signs the bill, doctors who violate its tenets could lose their licenses. It is unclear whether the governor currently supports the bill.

“Misinformation” is a highly dubious and debatable category. The scientific consensus has often expressed views relating to COVID-19 that were later contradicted. Official guidance with respect to masks has changed frequently. During the early days of the pandemic, White House coronavirus adviser Anthony Fauci initially downplayed the need for masks. Then, for more than a year, the scientific community urged people to wear any mask at all. Today, it is widely believed that only high-quality masks are offering meaningful protection. At various stages of the masking discourse, what many scientific experts had to say on the subject turned out to be inaccurate or at least incomplete.

The same is true of the COVID-19 vaccines. While they remain remarkable tools for preventing severe disease and death, particularly among older and more vulnerable populations, they do not substantially reduce COVID-19 case counts, contrary to what was said about them in late 2020 and early 2021.

Science is a deliberative process, and medical professionals need to be allowed to dissent from mainstream orthodoxies and challenge dominant perspectives. Patients deserve expert care, but it’s unreasonable for the government to compel ideological conformity in this field.

Besides, the state has shown no particular aptitude for discerning what constitutes genuine misinformation. On the contrary, government actors have frequently instructed social media companies to be wary of perfectly legitimate points of view. This happened with the lab leak theory, which was brutally suppressed on social media at the behest of the government, and it happened with The New York Post‘s Hunter Biden laptop story, which was wrongly branded Russian disinformation by top law enforcement agents, and punished accordingly.

It’s also likely that this bill violates the First Amendment. Governments have the power to regulate medical care, but the compelled speech component of AB 2089 would probably perturb the Supreme Court. Even some legal experts who support the bill’s goals concede that it will have a hard time surviving scrutiny.

“Initiatives like this will be challenged in court and will be hard to sustain,” Michelle Mello, a professor of law and health policy at Stanford University, told The New York Times. “That doesn’t mean it’s not a good idea.”

Policing misinformation is a fraught task, and the state inserting itself between doctors and their patients is usually a recipe for disaster. Newsom should let this bill die.

The post California Tries To Make It Illegal for Doctors To Spread COVID-19 'Misinformation' appeared first on Reason.com.

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The Food and Drug Administration (FDA) has issued emergency use authorizations for updated booster shots for both Moderna and Pfizer/BioNTech’s messenger RNA (mRNA) COVID-19 vaccines. Both boosters are bivalent, containing components of the original virus strain and the currently prevalent BA.4 and BA.5 omicron variants. The shots are meant to function solely as boosters. People are eligible for the single bivalent booster shots if it has been at least two months since they have completed primary vaccination or have received a booster dose of the earlier approved vaccines. Moderna is authorized for people over age 18 and Pfizer/BioNTech for those over age 12.

Considering the speed with which the virus has been mutating and the increased infectiousness of the new variants, the FDA is approving COVID-19 booster shots in much the same way that it does seasonal influenza vaccines. Annually updated influenza vaccines do not need to undergo human clinical trials unless the vaccine makers have significantly changed the way they make the vaccines. The same situation applies to the COVID-19 boosters. The mRNA vaccines are essentially plug-and-play, where vaccine makers do not have to reformulate vaccines they already know work, but can instead switch out or add new mRNAs that produce the viral proteins that rev up our immune systems.

Given that the original COVID-19 vaccines and boosters in most cases are still effective against severe disease, some think that booster shots will not add much protection for people who have already been vaccinated or infected. Paul Offit, the director of the Vaccine Education Center at Children’s Hospital of Philadelphia, told The Atlantic that he does not plan to get a booster this fall because having been thrice vaccinated and infected. “I think I’m protected against serious illness,” he added. Offit was one of the two members of the FDA’s vaccine committee to vote against asking vaccine makers to create omicron-specific boosters.

But a recent preprint analysis compared regular booster shots with variant-specific boosters like the new bivalent shots. In that analysis, getting any booster significantly enhances protection against both symptomatic and severe COVID-19 disease with variant-specific boosters providing a modest additional increase in protection. However, one other consideration, suggests University of Rochester respiratory pathogen researcher Angela Branche in Science, is that the broadened immunity that updated vaccines may confer would pay off if new variants emerge.

A better strategy than pursuing a constantly mutating virus with booster shots would be to develop a universal vaccine targeting a wide variety of coronaviruses. Walter Reed Army Institute of Research is expected to report the results of its phase one clinical trial of its pan-coronavirus vaccine candidate soon. In July, a team of vaccine researchers associated with the Francis Crick Institute in London reported in Science Translational Medicine that a vaccine targeting a far more stable protein in coronaviruses immunized mice against a wide array of those viruses.

Disclosure: I have been fully vaccinated (Moderna) and boosted twice (Pfizer). I also had a mild case of COVID-19 earlier this summer that I treated with Paxlovid and I experienced Paxlovid rebound. Nevertheless, I intend to get an updated booster in early October. Everyone should take their own circumstances into account as they update their risk preferences with respect to COVID-19 boosters this fall. 

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I am delighted to announce the publication of the free, online 2022 Supplement for the law school textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Third Edition). My coauthors on the Supplement and the third edition of the textbook are Nicholas J. Johnson, George A. Mocsary, E. Gregory Wallace, and Donald Kilmer.

The Supplement is 175 pages, and covers developments since the summer of 2021, when the textbook entered final production. The Supplement begins with 98 pages on the Supreme Court’s June 2022 decision in New York State Rifle & Pistol Association v. Bruen. Most of that material is the Bruen opinion, plus the three concurrences, and the dissent, all in full. Our version may be a little easier on the eyes than the slip opinion on the Court’s website, or versions on other sites, since we take the liberty of removing some parallel cites (e.g., to Lawyer’s Ed. 2d), and we make some adjustments to the Court’s idiosyncratic abbreviation style (e.g., we use “U.S” instead of “U. S.”).

More importantly, we also provide a six-page explanation of the “Bruen Rules,” such as Bruen‘s instructions on how to draw analogies from historic gun control laws to modern ones, and on Bruen‘s permissible limits on the right to bear arms.

In the usual pattern for textbook supplements, there are many short summaries of important new cases, statutes, and so on. Some topics that receive extended treatment include:

• The ATF’s actions against forced reset triggers.
• An in-depth analysis of the major new federal gun control law, the June 2022 “Bipartisan Safer Communities Act.” This is a guest essay by Professor Robert Leider.
• An explanation by attorney Johanna Reeves of the ATF’s new “Frame or Receiver” rule.
• A major excerpt from the 9th Circuit’s Jones v. Bonta, which upheld a California statute that young adult long gun buyers (18-20) must first obtain a hunting license, and which held unconstitutional a ban on them acquiring semiautomatic rifles.
• An essay on armed citizen defense in Ukraine.

We hope you find the Supplement useful!

 

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On June 3, in response to a grand jury subpoena served on May 11, former President Donald Trump’s lawyers gave the FBI 38 classified documents that he had taken to his residence at Mar-a-Lago, his Palm Beach resort, when he left office in January 2021. Trump lawyer Christina Bobb signed a sworn statement saying “a diligent search was conducted of the boxes that were moved from the White House to Florida.” That search, Bobb said, “was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena,” which sought material marked as classified. “To the best of my knowledge,” she said, “any and all responsive documents accompany this certification.”

Despite that certification, according to a brief that the Justice Department filed last night, the FBI found “over one hundred unique documents with classification markings” when it searched Mar-a-Lago on August 8. That discovery provided further evidence that Trump or his underlings violated three federal laws cited in the FBI’s search warrant by willfully retaining government records and deliberately obstructing  attempts to recover them. But if the Justice Department ultimately decides to prosecute Trump, proving those charges will be difficult, because his cavalier treatment of the records at Mar-a-Lago plausibly reflected habitual carelessness rather than criminal intent.

The Justice Department describes the June 3 handover in its response to Trump’s request that a “special master” be appointed to review the items seized at Mar-a-Lago. The meeting included Bobb, Trump lawyer Evan Corcoran, three FBI agents, and Jay Bratt, chief of the Counterintelligence and Export Control Section in the Justice Department’s National Security Division. Although the name of the “custodian” who signed the certification is blacked out in the DOJ’s filing, The New York Times reports that it was Bobb.

The 38 documents recovered during that meeting were in addition to 184 classified documents found in 15 boxes that Trump had given the National Archives and Records Administration (NARA) in January. The DOJ says “counsel for the former President offered no explanation as to why boxes of government records, including 38 documents with classification markings, remained at the Premises nearly five months after the production of the Fifteen Boxes and nearly one-and-a-half years after the end of the Administration.”

According to the Justice Department, the FBI sought to verify Bobb’s statement by looking in the boxes of documents that Trump was keeping in a basement storage room at Mar-a-Lago. But “the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.”

After that meeting, the Justice Department says, “further investigation indicated that the response to the subpoena was incomplete, that obstructive conduct occurred in connection with the response to the subpoena, and that classified information remained at the premises.” That investigation evidently included interviews of witnesses who had seen additional classified material at Mar-a-Lago, which would have been crucial in establishing probable cause for the search.

The search confirmed the FBI’s suspicion that Trump was still keeping classified material at Mar-a-Lago. Like the documents that Trump’s representatives gave NARA in January and the FBI in June, the classified records seized during the search ranged from “confidential” to “top secret,” with some of the latter classified as “sensitive compartmented information,” an especially restricted category.

We still know very little about the nature of the information those documents contained, or why the FBI thought they posed a threat grave and imminent enough to justify its unprecedented search of a former president’s home. The Justice Department says “the Intelligence Community” is conducting a “review of the national security risk that improper storage of these highly sensitive materials may have caused” and considering “measures to rectify or mitigate any damage that improper storage caused.”

The search also showed that, contrary to what Trump’s lawyers had indicated, some of the classified documents were kept outside the storage room, which was secured by a padlock. The Justice Department says 76 of more than 100 documents with classification markings were found in that room, which means dozens were discovered elsewhere.

According to the Justice Department, the FBI found “three classified documents” in desk drawers when it searched Trump’s office. One drawer “contained classified documents and governmental records commingled with other documents.” Additional documents with “classified cover sheets” were “recovered from a container” in Trump’s office.

The above photograph, which the Justice Department included in its brief, shows the documents found in Trump’s office. In response, Trump complains that it was “terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see.” But the Justice Department never implied that Trump threw those records on the floor; it said he should not have had them at Mar-a-Lago to begin with.

The scattered locations of conspicuously marked classified documents suggest that the search described by Bobb was not quite as “diligent” as she claimed. “That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter,” the Justice Department says.

Trump insists that the documents at Mar-a-Lago, despite their markings, were no longer classified, because he had “a standing order” as president that automatically declassified anything he happened to remove from the Oval Office. But according to the Justice Department, Trump’s representatives made no such claim when they delivered documents to NARA in January or to the FBI in June. During the latter meeting, it says, “neither counsel nor the custodian asserted that the former President had declassified the documents.” To the contrary, Corcoran “handled them in a manner that suggested [he] believed that the documents were classified: the production included a single Redweld envelope, double-wrapped in tape, containing the documents.”

It is not clear whether Trump actually issued the purported “standing order,” which he first described four days after the FBI’s search. That policy was news to John Bolton, who served as the former president’s national security adviser for 17 months in 2018 and 2019, and to Glenn Gerstell, who served as general counsel for the National Security Agency from 2015 to 2020. More to the point, the three statutes cited in the Mar-a-Lago search warrant do not hinge on whether the documents were in fact classified.

18 USC 2071 makes it a felony, punishable by up to three years in prison, to “willfully and unlawfully” conceal, remove, or destroy a U.S. government document. That would include unclassified documents that belonged in the National Archives under the Presidential Records Act. That law says “the United States shall reserve and retain complete ownership, possession, and control of Presidential records.”

18 USC 793(e) makes it a felony, punishable by up to 10 years in prison, to improperly retain “defense information.” As relevant here, that provision applies to anyone who has “unauthorized possession” of “information relating to the national defense” that he “has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” and who “willfully retains” that information and “fails to deliver it to the officer or employee of the United States entitled to receive it.”

18 USC 1519 makes it a felony, punishable by up to 20 years in prison, to conceal “any record, document, or tangible object” with the intent to “impede, obstruct, or influence” a federal investigation. Even if Trump declassified all of the documents at Mar-a-Lago when he still had the authority to do, intentionally withholding the material demanded by the subpoena could qualify as obstruction.

Still, all of these offenses require proof of intent. Given what we know about Trump, it is entirely plausible that he thought the records he took belonged to him, did not know or care about the relevant laws, and responded lazily and haphazardly when NARA and the FBI tried to recover the documents.

According to the redacted search warrant affidavit, NARA first requested the return of missing presidential records on May 6, 2021, three and a half months after Trump left office. In a February 18 letter to Rep. Carolyn Maloney (D–N.Y.), who chairs the House Committee on Oversight and Reform, U.S. Archivist David Ferriero reported that “NARA had ongoing communications with the representatives of former President Trump throughout 2021, which resulted in the transfer of 15 boxes to NARA in January 2022,” two years after Trump left office.

What was happening in the meantime? While Trump’s advisers “tried to help the National Archives retrieve the material,” the Times reports, “the former president repeatedly resisted [their] entreaties,” because he mistakenly thought he had a right to keep mementos such as his pardon for Roger Stone, letters from North Korean dictator Kim Jong-un, and the note that former President Barack Obama left for his successor when Trump took office. “It’s not theirs; it’s mine,” Trump repeatedly insisted, according to “several advisers” interviewed by the Times.

Given that attitude, Trump’s foot-dragging is not surprising. But if Trump sincerely believed that the National Archives had no right to “his” records, it would be hard to prove that he “willfully” retained or concealed government documents.

The fact that Trump’s response to NARA’s requests was incomplete likewise does not necessarily prove that he intentionally broke the law. Maybe he did not know exactly what he had and did not bother to find out. Such sloppiness would be consistent with his behavior as president.

In June 2018, Ferriero said in his letter to Maloney, “NARA learned from a press report in Politico that textual Presidential records were being torn up by former President Trump and that White House staff were attempting to tape them back together.” When NARA asked the president’s lawyers about that, “the White House Counsel’s Office indicated that they would address the matter.”

After Trump left office, Ferriero said, “NARA learned that additional paper records that had been torn up by former President Trump were included in the records transferred to us. Although White House staff during the Trump Administration recovered and taped together some of the torn-up records, a number of other torn-up records that were transferred had not been reconstructed by the White House.”

Trump’s purported policy of declassifying material that he removed from the Oval Office likewise suggests he was careless with government documents. By Trump’s account, his “standing order” applied to anything he decided to study in his residence in preparation for the next day’s work. But such decisions are not supposed to be based on presidential convenience; they are supposed to be based on a careful determination that declassifying any particular document would not endanger national security. The fact that records supposedly declassified by Trump still bore labels that indicated otherwise underlines how irregular and arbitrary such a policy would have been.

Bolton, who says he never heard anything about Trump’s “standing order,” cautions the former president’s critics against assuming that he had sinister motives in deciding which classified material to grab. “I think he just had an inquisitive instinct,” Bolton said in SiriusXM interview this week. “He would see things in intelligence briefings, a picture, a graph, something like that—usually not lengthy written material, that’s for sure. But he’d say ‘Well, I want to keep that,’ and it would sort of end up in a pile on his desk.”

Although “a lot of Trump’s critics have great theories about how he’s gonna use this information to blackmail people,” Bolton said, “I think that gives Trump too much credit. I just think he brought things into his possession thinking…it’d be interesting to look at it later, and that’s how it happened. That doesn’t excuse it. But I think when you overstate your case against Trump, and by really giving him powers and mental ability that doesn’t match the reality, you’re setting up a target that you can’t possibly get to.”

Assuming that Trump deliberately concealed classified documents at Mar-a-Lago with the intent of impeding the FBI’s investigation likewise may give him too much credit. Even by the Justice Department’s account, Trump would casually toss sensitive records into desk drawers, where they were mixed together with other material and perhaps forgotten. The idea that he knew exactly what the boxes in the storage room contained and consciously decided to hide classified documents from the FBI seems inconsistent with this picture of impulsive negligence.

The behavior of Trump’s lawyers, by contrast, seems more deliberate. Unlike Trump, they were legal professionals confronted by a federal subpoena seeking every document at Mar-a-Lago that was marked as classified. Although they had more than three weeks to make sure they had identified all such documents, they somehow missed more than 100. It is hard to come up with an innocent explanation for that failure.

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Monday is Labor Day. Will you celebrate unions?

The media does. “Unions are cool again,” reports CBS News. They suggest unionization is booming.

“Reporters” practically cheered when a Starbucks in Buffalo, New York, became the first Starbucks to unionize. “A big symbolic win for labor,” The New York Times called it.

Since then, more than 180 Starbucks voted to unionize, and 300 filed for union elections.

Starbucks already offers better benefits than many companies: health benefits, even for part-time workers, free college tuition, maternity leave, and more. Their minimum wage is $17/hour. But activists want more.

Apple Store employees and Google workers are also starting unionization efforts. In the first half of 2022, union election petitions increased by 57 percent.

They have political support. President Joe Biden promised he’d be “the most pro-union president you’ve ever seen,” and he probably has been. He supports the PRO Act, which would override state right-to-work laws and fine employers that fire workers for trying to unionize.

The Washington Post claims there is a “wave of labor activism sweeping the country.”

But despite all political support and media hype, unionization is down.

Unionization did increase during the pandemic but fell as the pandemic waned. In 2021, 15.8 million workers were represented by a union, a decline of half a million since 2019.

There are many reasons.

The Janus Supreme Court decision in 2018 declared it unconstitutional to force government workers to pay union dues. Now 28 states no longer force any workers to pay union dues. That’s a good thing. No one should be forced to join groups they don’t want to join.

In 1973, when I first went to work for CBS, I was forced to join AFTRA, the American Federation of Television and Radio Artists. I didn’t want to. I didn’t want to pay dues to a union that didn’t appear to do much, but I had no choice.

At work, I saw how union rules routinely slowed work down—sometimes in ridiculous ways. I couldn’t just press a button and watch a video. I had to find a union editor and ask him to press the button.

One reason Fox News grew faster than CBS, NBC, and ABC’s news operations is that non-union Fox is more flexible. They are able to try new things. They didn’t have to obey all the stupid rules.

This is another reason why the number of union workers has declined. Union rules limit their employers’ ability to change, adapt, and grow.

Non-union Toyota and Honda outgrew unionized companies like General Motors (GM). They hired more people, created more jobs. That was good for labor, just not unionized labor.

Unionization helps some. But it hurts more.

Some GM workers got higher pay and more time off. But lots of potential workers never got a chance. Toyota and Honda helped more people simply by growing faster.

Today activists claim unions built the middle class. Without unions, they say, there would be no weekend and no eight-hour day.

But that’s not true.

Workers’ lives improved in America mostly because of competition, not union rules. Competition is what does the most for workers.

In 1914, Henry Ford doubled his employees’ wages to $5 a day and cut their workday to eight hours. People claim he was forced to do it by union pressure. That’s a myth. He did it because his company had high turnover. Raising wages helped him keep good workers.

Free market competition forces everyone to do better. What workers need is not a union’s rigid rules, but competition.

Today there’s lots of competition for workers. It’s driven companies like Costco to offer a $17-an-hour starting wage.

Unions help some, but a free market helps more.

COPYRIGHT 2022 BY JFS PRODUCTIONS INC.

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