Category: reason

Missouri is considering legislation to ban trans medical treatments for minors, and lawmakers and one psychologist who testified at a hearing last week suggested forcing even legal adults to wait until they’re 25 years old.

The Hill took note of that suggestion from a Thursday hearing for H.B. 2649, but to be clear, the bill as it stands would not prohibit trans adults from getting any form of medical treatment or therapy. Much like similar bills passed in Alabama and Arkansas, it prohibits any sort of “gender transition procedures” being offered to anybody under the age of 18, with exceptions for those with verified genetic disorders and an exception for treatment for “any infection, injury, disease, or disorder that has been caused by or exacerbated by the performance of gender transition procedures.”

Nowhere in the bill does it consider the rights of parents, the expertise of medical professionals, or the desires of the minors, in any way. Like other bills of this type, H.B. 2649 is culture war fodder that dismisses individual liberty out of fear of trans ideological contagion. The bill is named the “Missouri Save Adolescents from Experimentation (SAFE) Act,” not so subtly suggesting what the bill’s sponsor, Rep. Suzie Pollock (R–Lebanon), thinks of trans medical treatment.

In case it’s not clear, Pollock has also introduced a companion bill that would change the state’s medical malpractice laws to allow extra time for a lawsuit for treatments for gender dysphoria. Missouri law gives a two-year window for medical malpractice suits, but Pollock’s bill would allow a person who received trans medical treatments until the age of 28 to sue. It would also mandate that before anybody (even a consenting adult) can get medical trans treatment, they must be provided with the latest research on detransitioners (those who return to their birth sex), data on “satisfaction rates” of various types of gender treatments, and information on potential therapeutic, nonmedical approaches.

In case it’s still not clear, here’s a direct quote from Pollock from Thursday’s hearing: “These drugs can sterilize children and never allow them to experience an orgasm. Do you want to do that to a child, do you want to strip them of that? If they go all the way through it, they are never content. [emphasis added] People who are fully trans, they don’t have normal sexual function.” This isn’t about ascertaining whether a child is truly trans before providing him or her access to medical transition treatment. This is a complete rejection of the validity of using medical treatment to resolve trans issues.

It is very tempting to see bills like this as a response to the very real concerns that teens and kids who are questioning their gender identities are being pushed by adults with their own agendas into rushing into medical treatments with long-term or irreversible effects. But this bill isn’t an expression of concern; it’s an application of political power over a small group of people. It is a war between two polarizing agendas with trans kids and their families trapped in the middle and with strangers on both sides screaming that kids’ lives are at stake if they make the wrong choice—and the wrong choice is, of course, whatever the other side is proposing.

The suggestion from conservative quarters that adults should perhaps have to wait until 25 for medical treatment is just a skewed version of progressive attempts to infantilize young adults by raising the smoking age to 21 or stopping them from buying guns until they are 21. It makes a mockery of the idea of self-ownership. And it undermines claims that this anti-trans legislation is about protecting impressionable kids from rashly disrupting puberty.

If there’s any doubt these bills are about dismissing trans medicine entirely, take a look at who was brought in for the hearing: a psychologist named Laurie Haynes. St. Louis’ NBC affiliate KSDK describes her simply as a board member of the neutral-sounding International Federation for Therapeutic and Counseling Choice (IFTCC). The story notes that at one point Haynes does mention during the hearing that she supports conversion therapy, the practice of attempting to “cure” somebody of homosexual or trans feelings.

To be clear, conversion therapy is the entirety of what the IFTCC stands for. This vaguely-named U.K.-based organization’s primary goal is to lobby in favor of conversion therapy not just for trans folks but also for gay and lesbian people. This is not a neutral organization operating out of concern for youths who incorrectly or rashly conclude they’re trans and start medical treatment early. This is a group that believes that even those who are gay or trans can be “cured” of these urges and exists to lobby against legal bans against conversion therapy.

Mind you, legal bans against conversion therapy are themselves bad because they suppress free speech and the exchange of ideas—even those considered disreputable or junk science. Those who consent to it have every right to consult somebody to try to “cure” them of their homosexuality or gender dysphoria, regardless of whether it’s actually effective (which it is not).

This element of the culture war is, ultimately, the consequence of putting lawmakers in charge of deciding what sort of treatment for trans and gay people is “legitimate.” Lawmakers don’t have the ability to determine which trans treatments are actually “legitimate;” they only have the power to decide which treatments are legal. And that’s not the same thing.

It’s particularly telling that the IFTCC has a declaration on its site that it’s an infringement on human rights and freedoms to ban conversion therapy while at the same time a member of its board is advocating for a legal ban on a different sort of medical therapy for the same concerns. That’s not what support for freedom looks like.

The post Missouri Lawmakers Suggest Infantilizing Trans Adults and Depriving Them of Treatment Until Age 25 appeared first on Reason.com.

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Colorado’s Jared Polis might be the most libertarian governor in America, at a time when his big-state Democratic colleagues are getting exposed as hypocrites while presiding over historic population declines or getting kicked out of office for sexual harassment and sending COVID infected patients back to nursing homes and then lying about it. I’m not sure that Polis’ 2014 claim in the pages of Reason that “libertarians should vote for Democratic candidates” because they’re “more supportive of individual liberty and freedom” has held up, but he’s certainly leading by example.

The 46-year-old governor is presiding over one of the fastest-growing states in the country and a place that has one of the lowest death rates during the pandemic. He pushed back against members of his own party to remove mask mandates, and he consistently argued that public health decisions should be made at as local a level as possible. Last fall, at a conference held by the conservative Steamboat Institute, he declared that the state income tax rate “should be zero” and has supported ballot initiatives that reduced the rate. Polis has embraced occupational licensing reform and was an outspoken defender of bitcoin back in 2014 when Sen. Joe Manchin (D–W.Va.) called on then-head of the Federal Reserve Janet Yellen to ban it.

The openly gay, married father of two recently signed a free-range parenting bill that effectively relegalizes the sort of Colorado childhood he recalls as the son of two ex-hippie parents: “Just because a kid is playing alone outside, it doesn’t mean they’re in danger,” Polis said at the signing ceremony. “It will help decrease false reports so…we can focus on the serious and the real instances of child abuse.”

As conservative states pass laws strictly limiting abortions, he signed legislation guaranteeing a woman’s right to choose. The founder of two charter schools, he is an outspoken advocate for school choice, saying earlier this year that “public school choice is an asset to improve all public schools.” A former tech entrepreneur and five-term congressman, Polis is steadfast against limiting speech rights or treating social media platforms as utilities that can’t moderate content or bounce users for transgressing terms of service.

In a wide-ranging conversation with Reason, Polis talks about trying to govern from the middle, takes shots at President Joe Biden’s moves on free trade and immigration, and repeats his argument that libertarians should vote for Democrats. Up for re-election in the fall and a heavy favorite to win a second term, Polis also discusses his political ambitions as a rising star in a party that is expected to get blown out in the midterm elections.

The post Jared Polis: The Most Libertarian Governor in America? appeared first on Reason.com.

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In the latest Reason Roundtable, editors Matt Welch, Peter Suderman, Katherine Mangu-Ward, and Nick Gillespie discuss the broad implications of the unfolding DeSantis vs. Disney saga.

1:26: DeSantis vs. Disney continues. 

33:39: Weekly Listener Question: I’m wondering when it becomes ethical and even required under one’s belief in liberty to begin enacting civil disobedience? In this case, I was thinking about riding the U-Bahn maskless, as a forty-something man publicly disobeying the most visible of the restrictions might invite others to question the wisdom of the policy. It’s relatively low-risk as I’m triple-vaxxed, as is 75 percent of Hamburg, so I wouldn’t be unnecessarily risking others’ health, and they can wear a mask anyway. It’s also a 40-euro fine, but I’d be willing to eat that cost for the statement of principle.

I acknowledge that state power is strongest in a time of emergency, but we’re two years in at this point and have had vaccines for almost a year. And I realize that I could cause myself visa headaches. But, aside from that, is there any ethical reason not to begin a personal campaign of civil disobedience if I object strongly enough to the rules that look like they’ll never go away or, at least, that the people in charge hope will never go away?

44:51: Media recommendations for the week.

This week’s links: 

“Rethinking the Social Responsibility of Business” by Milton Friedman, John Mackey, and T.J. Rodgers

“DeSantis Calls for End of Walt Disney World’s Self-Rule” by Scott Shackford

“DeSantis Understands the Best Defense Is a Good Offense” by Jon Gabriel

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

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The post Why Conservatives Are Wrong To Punish Disney appeared first on Reason.com.

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Over the last week, SpaceX and Tesla founder Elon Musk arranged $46.5 billion in financing to follow through on his unsolicited offer to Twitter’s board to buy the social media site from them. This afternoon, the board accepted Musk’s offer to buy the company for $54.20 a share.

Long a Twitter power user/troll/loudmouth, Musk bought a 9.2 percent stake in the company last month, becoming the largest shareholder, before deciding he’d rather have the whole thing.

Cue hysteria! Musk haters have taken to the site to declare that Donald Trump will now probably win the 2024 election, that Musk’s bid is really about white power, that Section 230 must be reformed, and that, yes, Musk’s new policies will be lethal. (Perhaps the death toll will be even larger than net neutrality‘s!)

So, for users of the platform, what’s likely to change?

Musk has panned the site’s existing content moderation policies, saying they are too restrictive and encroach on people’s ability to speak freely without being censored. Some liberalization of these policies and the re-platforming of controversial figures like former President Donald Trump—who was banned in the wake of the January 6 riot for inciting violence among his fans—seems likely, though unpopular with droves of users.

At the mid-April TED conference in Vancouver, Musk talked about his interest in making Twitter’s algorithm open-source. The Diff‘s Byrne Hobart took this a step further,  outlining how “Twitter should monetize a protocol rather than run an app,” and explaining the tension between Twitter as a consumer product and as “a way for individual users to update a universal shared database, which can then be filtered based on who’s interested in what.” Hobart claims that it’s possible that Twitter has been “radically miss-monetized,” and that Musk could potentially realign its priorities. However, little of the online discourse has focused on the technical possibilities.

The new Twitter owner has, through coy tweets, hinted that his new policies will not be applied arbitrarily and that consistent application will mean some number of right-wing users currently cheering his new ownership will surely be disappointed:

I hope that even my worst critics remain on Twitter, because that is what free speech means

— Elon Musk (@elonmusk) April 25, 2022

A social media platform’s policies are good if the most extreme 10% on left and right are equally unhappy

— Elon Musk (@elonmusk) April 19, 2022

Elsewhere, Musk has said that Twitter is a “town square” or “public square,” and that banning people from using the platform effectively prevents them from participating in the important discussions of the day.

Though people who care about fostering a culture of free speech may agree with the tenor of Musk’s comments, the analogy is a terrible one. For most of America, the public square is the school board meeting and the town council meeting. There are also numerous other privates spaces for civic engagement: the church pulpit and the post-sermon fray it inspires; neighborhood listservs and the cesspool that is NextDoor; or maybe it’s Facebook, in-person conversations, and email lists. For many millions of Americans, Twitter is not integral to hashing out values, concerns, and disagreements. Think of the implications if we expected the government to treat such companies—which have their own terms of service and standards that they are free to decide and we are free to consent to—as something akin to public utilities.

If anything, the new owner of a social media company should convey an inflated sense of the platform’s worth! But Musk has at times, despite his forceful defense of free speech culture on the internet, repeated confused talking points that indicate scattered thinking while simultaneously failing to fully flesh out what day-to-day operations will look like. For example, a lot of content moderation involves the unsexy—and not very ideological—challenge of keeping spam under control. And, as Mike Masnick points out at Techdirt, Musk doesn’t seem to have a particularly robust understanding of “hate speech” and how much of what we call hate speech is, in fact, protected by the First Amendment.

A lot remains to be seen about how Twitter will change and what Musk will bring to the table. Optimism, with some reservations about Musk’s ability to execute, seems warranted. Hysteria—like declaring that it’s now open season for white supremacists, that Musk’s vision for free speech will be “lethal,” or that Musk is an echo of imperialist, colonizer forebears because he wants to go to Mars—is not.

The post Elon Musk Buys Twitter, Twitter's Biggest Egos Melt Down appeared first on Reason.com.

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Earlier today, the Washington Post published my article on “‘Gun-at-Work Laws’ Violate the Property Rights of Business Owners.” Here is an excerpt:

Iowa is the latest state to consider prohibiting private property owners from banning guns on land they own. Sometimes called “parking-lot laws” or “gun-at-work laws,” many such statutes tell property owners they can’t prevent people from storing their guns in a locked car while they work their shift (or attend church or seek help at a nonprofit counseling center). In some cases, the laws allow them to bring the guns inside. Iowa would become the 25th state with such a law….

These laws do not defend constitutional rights. I support strong Second Amendment rights to keep and bear arms, but the amendment constrains only the government. It does not require private individuals to own guns or allow them on their land — just as the First Amendment does not require private owners to allow speech they disapprove of on their property. To mandate that Americans accept guns on their property represents an unacceptable infringement of their property rights, and also violates the Fifth Amendment of the Constitution….

Scholars and courts have long recognized that the right to exclude people and objects of which they disapprove is a central element of property owners’ rights. Indeed, the Supreme Court recently reaffirmed, in a decision that forbade California from giving union organizers a “right to take access” to an agricultural employer’s property — three hours a day, 120 days a year — that “[t]he right to exclude is “one of the most treasured” rights of property ownership.” True originalist constitutionalism would embrace a strong view of Second Amendment rights while also defending the rights of business owners to keep guns off their property, if they so choose….

In addition to undermining property rights, many mandatory gun-access laws may also violate the Takings Clause of the Fifth Amendment. That argument leans on last year’s 6-3 ruling in Cedar Point Nursery v. Hassid — the one that concluded California could not let union organizers have temporary access to agricultural businesses…

in Cedar Point, the court held that “a physical appropriation is a taking whether it is permanent or temporary.” As Duke Law School professor Joseph Blocher has pointed out, in the case of gun-at-work laws — like union-organizer regulation — the government requires property owners to accept occupation of their land by people (armed gun owners) the owners would prefer to keep out…

Sadly, the imposition of mandatory gun-access laws on property owners is part of a more general recent turn against private property rights by many conservatives. Consider, for instance, the widespread right-wing support for the use of eminent domain to build President Donald Trump’s border wall, advocacy of laws forcing social media firms to host speech they object to, and legislation barring private owners from imposing coronavirus vaccination requirements as a condition of entry on their land….

The left, of course, has its own long-standing dubious anti-property tendencies. Among other things, many support “NIMBY” zoning restrictions and harmful uses of eminent domain. But that in no way excuses the growing bad behavior of the right.

The article is in part adapted from an earlier, longer essay I wrote on this issue for the Duke University Center for Firearms Law.

The post My Washington Post Article on Why Gun Rights and Property Rights appeared first on Reason.com.

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I put up some tentative thoughts on the subject Friday, and Prof. Dorf (DorfOnLaw) did as well today. He leans in favor of concluding that the repeal is unconstitutional (because it is in retaliation for Disney’s political activity), but agrees that this is a difficult question. If you’re interested in the controversy, you should definitely check out Prof. Dorf’s post; here’s an excerpt, responding to my argument that the retaliation here is not just against Disney as corporation, but as Disney operating a local government:

[I]n some respects Disney is a local government. So let’s try to construct an analogy that’s a bit different from the ones Professor Volokh gives—in which government officials lose their special privileges (like a member of Congress losing the chairmanship of a committee) in response to political statements or actions out of step with leadership.

Consider Bridgegate. The Democratic mayor of a municipality did not support the state’s Republican governor’s re-election bid; in response, people working for the governor retaliated against the municipality. Let’s assume that the mayor speaks for the municipality. After all, he was elected. And he clearly exercises political power over the municipality—probably more local government authority than Disney has. Even so, when the governor’s staff punished the municipality, it seems that they were punishing it for speech unrelated to the political power that the mayor and municipality exercise.

But wait. What about Professor Volokh’s second observation? In the actual Bridgegate, the retaliation took the form of needlessly creating a traffic jam and endangering public safety; in that sense the governor’s staff punished Fort Lee by making the municipality worse off than other New Jersey municipalities. Might the case look different if instead the governor’s staff had retaliated by withdrawing some special benefit that Fort Lee had previously enjoyed?

Maybe, but I’m not so sure. That view sounds a bit too much like Holmes’s no-right-to-be-a-policeman. We can think of a government job—even a low-ranking one—as a “special” benefit in the sense that most people aren’t employed by the government. The relevant question for determining whether the loss of a benefit for political speech implicates the First Amendment strikes me as the one that the Court asks in the employee speech cases: does the government have an interest in controlling employees’ speech that goes beyond its interest in controlling the general public’s speech?

Where the speech relates to the official duties, the answer will generally be yes. And with respect to political appointees, the job is inherently political, so patronage of some sort is inevitable. But where the speech of an individual, local government, or corporation with some special governmental authority is on a matter wholly unrelated to the exercise of the governmental authority that individual, locality, or corporation possesses, the interest in retaliating in response is no different from the (nonexistent) interest in retaliating against ordinary citizens for speaking out on matters of public concern.

I also thought I’d add something that was sent to me and Prof. Dorf by an extremely knowledgeable appellate lawyer:

[Prof. Dorf writes:]

Where the speech relates to the official duties, the answer will generally be yes. And with respect to political appointees, the job is inherently political, so patronage of some sort is inevitable. But where the speech of an individual, local government, or corporation with some special governmental authority is on a matter wholly unrelated to the exercise of the governmental authority that individual, locality, or corporation possesses, the interest in retaliating in response is no different from the (nonexistent) interest in retaliating against ordinary citizens for speaking out on matters of public concern.

[But f]or inherently political appointees, even speech that is “wholly unrelated to the exercise of the governmental authority” can be the basis for removal. And the head of a special tax district seems like an inherently political appointee (or a high-level policymaker, to use the terminology from the caselaw), since it directly exercises sovereign power and likely has at least as much, if not more, policymaking discretion within its sphere than most officials exempt from Rutan/Pickering [the Supreme Court cases that generally limit the government’s power to discriminate against most employees, at least lower-level ones, based on their speech or political affiliation].

Put differently, to use your Bridgegate hypo, if in NJ, the Governor appointed the mayor of Fort Lee and had power to fire him but otherwise had no control over his actions, isn’t it completely obvious that the Governor could have fired the mayor for not supporting him, even though supporting the governor was wholly unrelated to the mayor’s powers in Fort Lee? …

[T]his seems like one of the areas where the greater really does include the lesser. If it is consistent with the 1A for state law to permit the NJ governor to fire the Fort Lee mayor based on his speech, then it’s hard to see why the 1A should care if the NJ governor merely limits the powers of the Fort Lee mayor (or if the governor violated state law in so doing). From the perspective of the 1A, firing the Fort Lee mayor will chill his speech far more than curtailing his powers—although the lesser sanction may hurt the public more than just replacing the mayor, that’s not a 1A speech interest. And especially given all that, it does seem to me that disestablishing a special jurisdictional district is the equivalent of firing the district ….

For the record, I might agree with [Prof. Dorf] in the context of the federal govt retaliating against a state based on the speech of the state or its officials. But I don’t think any such principle should extend to a state’s regulation of local subjurisdictions/offices that exist only at the state’s sufferance.

Prof. Dorf, in the exchange with the lawyer, added:

I very much agree that the high-level policymakers line of cases provides the best grounds for the conclusion that the withdrawal here would be valid, but for the reasons that both Eugene and I identify, I also think that there are enough disanalogies to make the question an open one….

I do think there is a potential 1A problem with punishing a jurisdiction (including potentially withdrawing a special benefit) in retaliation for a government official’s speech, even if the official could be dismissed from the position. My reasons are related to the reasons I gave for thinking there could be a 1A violation with the repeal of SALT deductibility in the column I linked in the blog post. Again, I recognize various countervailing factors. My main contention is that the question is open.

The post Prof. Michael Dorf (Cornell) on Florida's Repeal of Disney's Special Government District appeared first on Reason.com.

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