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Are COVID-19 lockdowns that prohibit church services like Oregon’s ban on peyote—a neutral, generally applicable law that incidentally impedes religious freedom? Or are they more like the ban on animal sacrifice that Hialeah, Florida, imposed in 1987, which not-so-incidentally prohibited a Santeria ritual?

Those questions are at the heart of constitutional challenges to pandemic-inspired restrictions on religious services. Different federal appeals courts have answered them differently, creating a circuit split that reveals both encouraging alertness and alarming indifference to what seem like clear violations of the religious freedom protected by the First Amendment.

In the 1990 case Employment Division v. Smith, the Supreme Court upheld Oregon’s denial of unemployment benefits for two members of the Native American Church who had been fired from their jobs as drug rehabilitation counselors because they violated state law by participating in a peyote ceremony. The Court ruled that the First Amendment does not relieve Americans of the duty to obey a “neutral, generally applicable law” that prohibits religiously motivated conduct.

Three years later, by contrast, the Court overturned a local ban on animal sacrifice in Church of Lukumi Babalu v. City of Hialeah. Although the ban was framed as a general response to animal cruelty, its timing (in response to the opening of a new Santeria church) and the exceptions it included (e.g., for ritual slaughter of animals to be consumed as food) made it clear that the city was targeting a specific religious practice. The Court held that a law interfering with religious freedom can be neutral and generally applicable on its face but discriminatory in practice, making it subject to “strict scrutiny.” That test, which is very hard to satisfy, requires that a challenged policy be narrowly tailored to achieve a “compelling government interest” that cannot be achieved through less restrictive means.

In the context of COVID-19 control measures that restrict religious activities, the lesson from these two precedents seems clear. When those restrictions apply equally to conduct, whether secular or religious, that might promote virus transmission, they pass muster under Smith. But when a state or local government imposes special rules on religious activities that don’t apply to secular activities involving similar risks, they are presumptively unconstitutional under Lukumi. If, for example, a state allows businesses to continue operating or reopen subject to social distancing and other precautions, a church that is prepared to follow the same rules should be treated the same way.

Applying that analysis in an early decision involving religious freedom during the COVID-19 pandemic, a federal judge in Kentucky last month concluded that Louisville Mayor Greg Fischer’s unilateral ban on drive-in Easter services was “stunning” and “‘beyond all reason,’ unconstitutional.” U.S. District Judge Justin Walker noted that the city had not imposed general restrictions on cars in parking lots and was allowing drive-through transactions at restaurants and liquor stores. “If beer is ‘essential,'” Walker suggested, “so is Easter.”

In California, by contrast, the U.S. Court of Appeals for the 9th Circuit was unimpressed by the constitutional arguments against Gov. Gavin Newsom’s reopening plan, which provoked massive pushback from congregations across the state by arbitrarily discriminating against religious groups. Newsom has since modified that plan, although the churches that challenged it still object to some of the remaining restrictions.

“Where state action does not ‘infringe upon or restrict practices because of their religious motivation’ and does not ‘in a selective manner impose burdens only on conduct motivated by religious belief,’ it does not violate the First Amendment,” two members of a three-judge 9th Circuit panel declared last week. “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a ‘[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.'”

Both the majority’s description of COVID-19 and its invocation of Jackson’s comment were telling. A disease that kills 0.4 percent of people who suffer from it (according to a recent “best estimate” by the U.S. Centers for Disease Control and Prevention) can hardly be described as “often fatal.” And the Jackson quote comes from his dissent in Terminiello v. Chicago, a 1949 case in which he defended restrictions on speech that is apt to make people angry.

In Terminiello, the Supreme Court overturned the disorderly conduct conviction of a suspended Catholic priest who gave an inflammatory speech castigating Jews, Franklin and Eleanor Roosevelt, and communists. Writing for the majority, Justice William O. Douglas concluded that Chicago’s ordinance criminalizing disorderly conduct, which according to the trial court covered speech that “stirs the public to anger, invites dispute, brings about a condition or unrest, or creates a disturbance,” was inconsistent with the First Amendment. “The vitality of civil and political institutions in our society depends on free discussion,” Douglas noted. “A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

That is the position to which Jackson objected in his dissent. “The local court that tried Terminiello was not indulging in theory,” he wrote. “It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two.” When Jackson warned that the Bill of Rights, if defended too zealously, could become “a suicide pact,” he was defending the proposition that the anger aroused by speech can justify prohibiting or punishing it. That argument was based on the constitutionally dubious “fighting words” doctrine, which the Supreme Court endorsed in 1942 but subsequently narrowed so much that its viability as a defense for speech restrictions is highly uncertain.

When judges invoke Jackson’s “suicide pact” dissent, it is a clear signal that they have no intention of taking a constitutional claim seriously. True to that pattern, the 9th Circuit disposed of the challenge to Newsom’s policy in a couple of pages.

That decision inspired an 18-page dissent by Judge Daniel Collins. While California’s “highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint,” he wrote, “there is no denying that this amalgam of rules is the very antithesis of a ‘generally applicable’ prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, ‘religious services’ have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed ‘generally applicable.'”

Collins noted that “warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines.” By contrast, “in-person ‘religious services’—merely because they are ‘religious services’—are categorically not permitted to take place even if they follow the same guidelines. This is, by definition, not a generally applicable regulation of underlying physical conduct.”

In a May 16 decision rejecting a motion for an injunction pending appeal, a unanimous 7th Circuit panel made even shorter work of a challenge to a ban on religious services in Illinois. “The Executive Order does not discriminate against religious activities, nor does it show hostility toward religion,” the 7th Circuit said. “It appears instead to impose neutral and generally applicable rules….The Executive Order’s temporary numerical restrictions on public gatherings apply not only to worship services but also to the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmitting the COVID-19 virus. Worship services do not seem comparable to secular activities permitted under the Executive Order, such as shopping, in which people do not congregate or remain for extended periods.”

Two other appeals courts were more receptive to claims that banning church services violates the First Amendment.

On May 9, a unanimous 6th Circuit panel granted an injunction pending appeal to Maryville Baptist Church, which had challenged Kentucky Gov. Andrew Beshear’s lockdown orders. “The Governor’s restriction on in-person worship services likely ‘prohibits the free exercise’ of ‘religion’ in violation of the First and Fourteenth Amendments,” the 6th Circuit concluded, saying the “four pages of exceptions” to Beshear’s orders, allowing some group activities but not others, “remove them from the safe harbor for generally applicable laws” like the Oregon drug ban upheld in Smith.

“The Church and its congregants just want to be treated equally,” the appeals court observed. “They don’t seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They do not ask to share a chalice. The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.”

Last week a unanimous 5th Circuit panel temporarily enjoined a ban on church services in Holly Springs, Mississippi, sending the case back to the district court for further consideration of “a shifting regulatory regime.” The court said the injunction was based on assurances from the First Pentecostal Church of Holly Springs that “it will ‘satisf[y] the requirements entitling similarly situated businesses and operations to reopen.'”

In a concurring opinion, Judge Don Willett noted that the church “was burned to the ground earlier this week” and that the arsonists left a spray-painted message: “Bet you Stay home Now YOU HYPOKRITS.” Rather than expressing outrage at that development, Willett said, the city made the “shameful” argument that the church’s destruction rendered its motion moot. He added that a policy “singling out houses of
worship—and only houses of worship, it seems—cannot possibly be squared
with the First Amendment.”

On Sunday, when it asked Supreme Court Justice Elena Kagan for an emergency injunction against California’s restrictions, the South Bay United Pentecostal Church argued that the circuit split makes it likely that at least four justices would favor hearing the case. “According to the Fifth and Sixth Circuits, the violation of Plaintiffs’ rights is ‘indisputably clear,'” the church said, “while according to the Seventh and Ninth Circuits, no such violation occurred whatsoever.”

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By now almost everyone recognizes how vital it is to develop an effective coronavirus vaccine as quickly as possible. A vaccine would save many thousands of lives that are otherwise likely to be lost to the virus. In addition, developing a vaccine may well be the only way to overcome the worldwide economic crisis caused by the disease. Even if lockdown orders are lifted, many people will still be unwilling or unable to return to anything like “business as usual” for so long as the coronavirus remains a threat.

The costs here are not just narrowly “economic.” They also involve such things as foregone medical treatment leading to increased death from non-covid causes, growing hunger and poverty (especially in developing nations, and a reduction in childhood vaccinations that could imperil millions around the world. Anything that can make a vaccine available even a month or two earlier than would otherwise be the case could save a great many lives and avert much suffering.

But, in order to swiftly develop a vaccine, it may well be necessary to resort to “challenge trials”: deliberately infecting healthy volunteer test subjects with the virus in order to then determine whether candidate vaccines work on them. My George Mason University colleague, economist Alex Tabarrok explains the reasons why here:

What if we develop a vaccine for COVID-19 but can’t find enough patients to run a randomized clinical trial? It sounds absurd, but this problem has happened in the past. Ebola was identified in 1976, and candidate vaccines were proven safe and effective in mice and primates in 2004 and 2005, respectively. But no human vaccine was produced because it was extremely difficult, bordering on impossible, to trial an Ebola vaccine. The problem? Ebola is so deadly that people take precautionary measures long before a vaccine can be tested…

Vaccines are intended to prevent disease in healthy people, so they’re tested for efficacy in healthy populations. But to test a vaccine, you need a population of still-healthy people who might get sick…

When a COVID-19 vaccine is available, it will be necessary to find a large population of people who are still at high risk of contracting COVID-19. This may be difficult. In developing countries, which may not be able to contain the virus, herd immunity may have developed. In richer countries, social distancing, testing and other measures may have made the probability of infection relatively low….

Even health care workers, however, have a low enough infection rate that you either need many months to determine if there is a significant effect, or you need large populations….

There is a second, related problem. Historically, most vaccine candidates fail. Thus, in a year or two, we want many vaccine candidates, not just one. But even if we are fortunate and have, say, seven vaccine candidates available, it probably won’t be possible to run efficacy trials on all seven candidates….

The efficacy-trial bottleneck motivates the use of challenge trials. In a challenge trial, healthy individuals are split into two groups, one half vaccinated, the other not, and then both groups are infected or “challenged” with the virus. No waiting for natural infections here…

The virtue of a challenge trial is that the results would be available very quickly, within a few weeks, and using only a small population. If the vaccine is 50 percent effective, for example, then we would need around 100 volunteers or perhaps even fewer depending on how many people exposed to the virus in laboratory conditions contract the disease.

As Alex points out, these problems may foil early production and deployment of one of a promising vaccine candidate currently under development by scientists at Oxford University.  Challenge trials can fix this issue.

In this Washington Post article, philosophers Richard Yetter Chappell and Peter Singer make a strong utilitarian consequentialist case for challenge trials: the risk to the volunteers is greatly outweighed by the enormous benefits to others. There aren’t many issues where Tabarrok—a libertarian—agrees with Singer (who is far more left-wing)!

Chappell and Singer are right in so far as  they go. Any plausible cost-benefit analysis comes out the same way. But non-utilitarians might still have reservations, such as fears that paying volunteers to participate in challenge trials might lead to exploitation of the poor, “commodification” of the body, or the use of test subjects who are ignorant of the risks.

The challenge trial debate, gives me a strong sense of deja vu. For many years, I and others have argued that the government should legalize the sale of organs, so that thousands of lives can be saved—and much other suffering prevented—by increasing the number of organs available to those who need transplants. The arguments in that debate are very similar to those that can be raised against coronavirus vaccine challenge trials.

Thus, answers to standard objections to organ markets can also help justify coronavirus challenge trials. Consider, for example, the claim that paid challenge trials will exploit the poor. I answered that objection in the organ market context here:

[M]any people oppose legalizing organ markets because they believe it would lead to exploitation of the poor. But most of them have no objection to letting poor people perform much more dangerous work, such as becoming lumberjacks or NFL players. If it is wrong to allow poor people to assume the risk of selling a kidney for money, surely it is even more wrong to allow them to take much greater risks in order to increase their income.

If you believe that organ markets must be banned because they exploit the poor, you must also argue that the poor should be forbidden to take jobs as lumberjacks and football players. If you believe that such considerations justify banning participation in organ markets even by the non-poor, than we must also categorically forbid monetary compensation for football players. Indeed, the case for banning the payment of football players is actually much stronger than that for banning organ markets. Unlike the ban on organ markets, a ban on professional football would not lead to the deaths of thousands of innocent people.

If you still worry that the poor will be “exploited” in either organ markets or challenge trials, I offer the second-best solution of restricting participation in such markets and  trials to the nonpoor. Simply adopt a rule that all test subjects must have incomes above whatever threshold you think is enough to avoid “exploitation” (e.g.—above the poverty line or above the average income in the participant’s country).

We do not need an infinite supply of volunteers for challenge trials. Just a few thousand. It should be possible to find them even if participation is limited to those above a certain income floor. As of this writing, the admirable “1 Day Sooner” website has already gathered over 25,000 volunteers who are willing to participate. Many, perhaps most of them, are not poor. And surely we can find more, if need be.

Here is my response to claims that paying organ donors (and by extension Covid challenge trial participants) will somehow unjustly “commodify” the body:

Other critics believe that organ markets must be banned because it is inherently wrong to “commodify” the human body. Yet most of them have no objection to letting a wide range of people profit from organ transplants, including doctors, insurance companies, hospital administrators, medical equipment suppliers, and so on. All of these people get paid (often handsomely) for helping transfer organs from one body to another.

Perversely, the only participant in the process forbidden to profit from the “commodification” of organs is the one who provided the organ in the first place. If you believe that people should be forbidden to sell kidneys because earning a profit from organs is immoral “commodification” of the body, you must either oppose paying all the other people who currently earn money from organ transplants, or explain why they, unlike the original owner of the kidney, are not also engaged in commodification…..

I would add that we pay volunteers to risk harm to their bodies in many other contexts. Soldiers, police, firefighters, lumberjacks, coal miners, and professional football players are all examples. Participants in many of these professions accept greater risks than organ donors or young, healthy Covid-19 challenge trial participants are likely to undergo. If “commodification” is fine for lumberjacks, police, and firefighters, it should be permissible for challenge trial participants, as well.

There is, of course, a danger that some participants will not be properly informed of the risk. But that can be minimized by securing “informed consent” ahead of time, as is already required for medical procedures.

The information available to participants may well be imperfect. Covid-19 only appeared a few months ago, and there are still uncertainties about its effects. But we allow people to voluntarily take imperfectly understood risks for pay in many other contexts. For example, soldiers and police often do not know ahead of time exactly what sorts of dangers they may face in the course of doing their jobs. It is notoriously difficult to predict what risks may arise in future battles. The moral requirement of informed consent can surely be satisfied if volunteers are given the best information available at the time, and also informed that there are some risks involved that experts may not yet fully understand.

It is also worth noting that there are already volunteers available who do have a solid understanding of the risk, and who are not readily dismissed as desperate poor people ripe for “exploitation.” Consider, for example, this article by Princeton student Isaac Martinez, explaining his willingness to volunteer, or this one by Bloomberg columnist Faye Flam, discussing her decision to do so.

There may be some who object to challenge trials even if the participants are not paid, on the ground that it is intrinsically immoral to deliberately subject healthy people to the risk of a deadly disease, even if they consent. But, as already discussed, we routinely allow volunteers to take risks with their lives and health in a variety of other contexts, including many where the potential benefits are far smaller than here. If it is not immoral to allow soldiers, police, and firefighters to take such risks, the same goes for challenge trial participants.

Like others who risk their lives to benefit others, challenge trial volunteers deserve our gratitude, and proper compensation for their efforts. And there is no good moral justification for forbidding them to take those risks. To the contrary, we should move ahead with challenge trials as soon as feasible. Every day of delay could literally be a matter of life and death—a great many lives and deaths.

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When Edward Snowden decided to reveal constitutionally dubious mass surveillance programs operated by the National Security Agency (NSA) in 2013, one of the three people he contacted was Barton Gellman, a Pulitzer Prize-winning reporter with a long history at The Washington Post. In his riveting new book, Dark Mirror, Gellman details his intense relationship with arguably the biggest whistleblower in U.S. history, the angry response of leaders of the national security community, and the ways in which the privacy of ordinary Americans remains at risk from the state.

In a wide-ranging conversation with Nick Gillespie, Gellman puts the Snowden revelations in the context of post-9/11 actions by Dick Cheney, Donald Rumsfeld, and other members of the Bush administration who ignored constitutional limits on executive power; the Obama administration’s false claims to transparency; and the understandable ambivalence of major tech companies to work with a government that is simultaneously threatening and trying to protect American lives.

Gellman also comments on the reputations of President Donald Trump and former Vice President Joe Biden in the intelligence community. Former heads of intelligence services are “much less sanguine about the government accumulating this enormous machinery of surveillance” with Trump in the White House because they openly acknowledge “it is subject to horrific potential abuse,” says Gellman. At the same time, he stresses that Biden, who served in the Senate for decades and for eight years under President Barack Obama, “has not been an apostle of transparency in the national security world. He was a strong backer of the prosecution of whistleblowers and leakers in the Obama administration and there were more prosecutions with charges of espionage against people who talked to journalists during the Obama administration than in all previous administrations combined, which had a chilling effect on national security reporting.”

Edited by John Osterhoudt, Intro by Lex Villena.

Photo credits: “Redacted Image” ID 95960034 © David Andrews | Dreamstime.com; “Bartman Gellman” Phil McAuliffe/Polaris/Newscom; “Glenn Greenwald” Gage Skidmore;
“Laura Poitras” Laura Poitras; Eyeball ID 22934579 © Gandolfo Cannatella | Dreamstime.com; “Dick Cheney” JONATHAN ERNST/picture alliance/Consolidated/Newscom

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Does the U.S. Constitution protect economic liberty, such as the right to work in an occupation of one’s choosing free from unreasonable government regulation? Pennsylvania Supreme Court Justice David Wecht thinks not. Writing in dissent last week in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania, Wecht faulted his colleagues in the majority for their “judicial intrusion into the realm of legislative value judgments” after that court allowed a legal challenge to proceed against a state occupational licensing scheme. “I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations.

In Wecht’s telling, the Pennsylvania Supreme Court is now living in its “own Lochner era,” a reference to the U.S. Supreme Court’s decision in Lochner v. New York (1905), which struck down a maximum working hours law on the grounds that it served no valid health or safety purpose and violated the right to liberty of contract protected by the 14th Amendment. “For many years, and under the pretext of protecting ‘economic liberty’ and ‘freedom of contract,’ the Supreme Court routinely struck down laws that a majority of the Court deemed unwise or improvident,” Wecht wrote of Lochner and several related cases. “Most now recognize that those decisions had nothing to do with the text or history of the Constitution; they were based upon nothing more than the policy preferences of the justices who signed on to them.”

Respectfully, I would encourage Justice Wecht to read some more legal history. He might start with the speeches of Rep. John Bingham (R–Ohio). In 1866 Bingham served as the principal author of Section One of the 14th Amendment, which, among other things, forbids the states from passing or enforcing laws which violate the privileges or immunities of citizens. As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” includes “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”

That view was widely shared at the time by those who framed and ratified the amendment. What is more, even those who opposed the passage of the 14th Amendment agreed that it was designed to protect economic liberty from overreaching state regulation—indeed, that was a big reason why they opposed the amendment in the first place. Rep. Andrew Jackson Rogers (D–N.J.), for example, complained to the House that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities….The right to contract is a privilege….I hold if that ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody embraced under this term of privileges and immunities.” The “right to contract” was of course later secured by the Supreme Court in Lochner.

Contrary to Justice Wecht’s flawed assertion, economic liberty most certainly does have something to do with the text and history of the Constitution.

Related: “Lochner Isn’t a Dirty Word.”

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From today’s opinion by Judge Brian McDonald:

On April 15, 2020, WASHLITE filed a first amended complaint alleging that Fox violated the Consumer Protection Act …. The complaint alleges that in February and March 2020, hosts and guests on Fox’s programs falsely described the coronavirus as a “hoax” and falsely minimized the threat of the coronavirus and COVID-19. According to WASHLITE, “[t]hese representations were deceptive because they caused consumers to fail to take appropriate action to protect themselves and others from the disease, mitigate its spread, and contributed to a public health crisis and a subsequent state wide shut down causing damage to businesses and the loss of employment by persons located in Washington State.”

By way of relief, WASHLITE seek an order enjoining Fox from televising any misinformation regarding COVID-19, an order directing Fox to issue specific retractions of every false and/or misleading statement, and treble damages.

WASHLITE does not dispute that the speech at issue in this case involves a matter of great public importance. Instead, it argues that Fox, as a cable programmer, does not have the same First Amendment rights accorded to newspapers and broadcast television stations. According to WASHLITE, “cable programmers do not have First Amendment rights on the cable medium” and, therefore, Fox “does not have First Amendment protections on the cable medium.”

These assertions do not hold up to scrutiny. Over 25 years ago, the United States Supreme Court held, “There can be no disagreement on an initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment.” Turner Broad. Sys., Inc. v. F.C.C. (1994). The Court observed that, “[t]hrough ‘original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,’ cable programmers and operators ‘see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.'”

The case primarily relied upon by WASHLITE, Denver Area Educ. Telcoms. Consortium v. FCC (1996), does not stand for the notion that providers of cable news programs lack First Amendment rights. The Denver decision held that a statute authorizing cable operators to refuse to carry indecent programming on leased access channels did not violate the First Amendment. In the opinion, the Court continued to acknowledge the existence of “the First Amendment interests of cable operators and other programmers.” WASHLITE’s attempt to distinguish cable programmers from other media providers is not supported by the relevant caselaw.

In its briefing, WASHLITE also argues the First Amendment does not apply because “there is no First Amendment right to lie.” The law on this issue is more nuanced than suggested by WASHLITE.

In United States v. Alvarez (2012), the United States Supreme Court held that the Stolen Valor Act, which made it a crime to falsely claim to be a Congressional Medal of Honor recipient, was unconstitutional under the First Amendment. In his plurality opinion, Justice Kennedy explained, “Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”

In Alvarez, Justice Kennedy in his plurality opinion and Justice Breyer in his concurrence set forth examples of where narrowly tailored statutes properly allowed for civil claims or criminal prosecution based upon falsehoods. For example, Justice Kennedy noted that “[e]ven when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.”

The speech in this case involves matters of public concern that is at the heart of the First Amendment’s protection, and WASHLITE does not explain how its CPA claim in this case might fall under the few categories identified in Alvarez.

Washington courts have previously rejected attempts to use the CPA to punish speech made by the media. In Fid. Mort. Corp. v. Seattle Times Co. (Wash. Ct. App. 2005), the Court of Appeals upheld the trial court’s dismissal of a CPA claim against the Seattle Times based upon an allegedly false and deceptive mortgage rate chart published in the newspaper. In doing so, the court held “the quarterly rate chart is not paid advertising. It is a news article, and as such it is not published ‘in the conduct of any trade or commerce.’ It does not fall within those activities governed by [the CPA].”

In many of the United States Supreme Court’s seminal First Amendment decisions, the motives for seeking to curtail or prohibit speech were understandable and could be considered righteous. Yet, as the Supreme Court recognized, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson (1989). WASHLITE’s professed goal in this lawsuit—to ensure that the public receives accurate information about the coronavirus and COVID-19—is laudable. However, the means employed here, a CPA claim against a cable news channel, runs afoul of the protections of the First Amendment….

I think this is generally quite right, certainly as to the “cable television is unprotected” argument (see this post) and likely also as to the “false statements about epidemics are unprotected” argument (see this post). I also think the alleged misinformation on Fox’s part consisted of expressions of opinion, not false statements of fact (see this post), but the judge’s reasoning here made it unnecessary for him to decide that.

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If there is one thing the coronavirus pandemic has shown, it’s that regulation gets in the way. 

Americans for Tax Reform, a conservative non-profit that advocates for lower taxes, has compiled a running—and growing—list of federal and state rules and regulations relaxed or suspended during the crisis. As of this writing, the list is up to 561 regulations. Unsurprisingly, many of the rollbacks are specifically related to the provision of health care services, one of the most heavily regulated sectors of the economy. But the regulatory rollbacks span the gamut, from legalizing cocktails to-go and relaxing rules governing distillery production of hand sanitizer to small business lending reforms to allowing “remote marriage” in a number of states. 

Each of these rules formerly made it more difficult to conduct one’s business or personal affairs, and each made it more difficult to respond, or merely live, in a pandemic. It’s both sad and telling that it took a unique global health crisis for policymakers to decide that they were not worth the costs they imposed.  

One reason why is that the costs of regulation are not always obvious. The nature of rulemaking is to impose hidden costs, especially when, at the federal level, the writing of regulations is largely delegated to executive branch agencies not subject to the same budgetary processes and pressures that govern Congress. 

Instead, to calculate the cost of these sorts of rules, we must turn to independent estimates like The Ten Thousand Commandments, an annual survey of the cost of the federal regulatory state produced by Clyde Wayne Crews, the vice president for policy at the Competitive Enterprise Institute, a libertarian think tank. 

The latest edition of the report, out today, tabulates the total yearly cost of federal regulation at $1.9 trillion. That’s equal to about 9 percent of the total national economy. In addition, the federal government spent about $72 billion to administrate these rules, according to an estimate by The Weidenbaum Center at Washington University in St. Louis and the George Washington University Regulatory Studies Center in Washington, D.C. That breaks down to an average of about $14,000 per household annually. If it were a tax, the total burden would be larger than all corporate and personal income taxes combined. 

The majority of these rules come from just a handful of federal agencies, according to the report: The Departments of Commerce, Defense, Health and Human Services, the Interior, Transportation, the Treasury, and the Environmental Protection Agency, which together account for a little more than half of all conventional federal regulations. It is not too hard to see the impact these agencies have on nearly every aspect of life: Although unelected, they have become de facto lawmaking entities, setting legally enforceable rules whose costs Congress never explicitly considered. On average, in 2019, each federal law resulted in 28 new rules—up from 11 per law in 2018. 

Courts, meanwhile, have adopted a doctrine that amounts to presumptive deference to agency interpretations of rules under which any “rational basis” will do. Federal agencies not only get to make rules that act as laws, they are granted considerable leeway to decide what those rules mean. 

CEI has been tabulating these costs since 1993; since then, federal agencies have issued more than 107,000 rules. President Trump has, to his credit, taken steps to reduce the flow of federal regulation, implementing a two-in, one-out rule. But even that effort is slowing, with the Trump administration claiming only 1.7 rules “out” for every one rule “in” in 2019. 

And Trump’s own impulses threaten his successes: As Crews writes, the president “has pruned rules and costs and held down regulatory output with more enthusiasm than other presidents,” but his administration has also pushed forward with new rules concerning antitrust, hospital pricing, social media regulations, trade restrictions, vaping, farming and agriculture, the telecom industry, immigration, and more. “When all is said and done,” the report concludes, “the administrative state cannot be said to have fundamentally changed under Trump.”

The same can be said about the regulatory rollbacks spurred by the coronavirus. Although some rule changes are likely to be made permanent, the various governmental pipelines that produce them are likely to remain in place, and, in some cases, empowered. Still, the hundreds of rollbacks are a reminder of the myriad regulations that rule and restrict our lives every day—how onerous they are, how unnecessary, and how easy it is to live without them. 

Disclosure: I worked at the Competitive Enterprise Institute from 2005 through 2007. 

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