Category: reason

American women are choosing to have fewer babies and the result is that America’s total fertility rate in 2020 has fallen to a record low of 1.64 births per 1,000 women between 15 and 44 years of age, according to the Centers for Disease Control and Prevention. Demographers define replacement fertility as 2.1 children per woman over the course of her lifetime; one to replace her, another to replace the father, and a tenth extra to account for children who die before reproducing and those who churlishly refuse to make their parents into grandparents. Populations with sustained sub-replacement fertility will eventually begin to shrink.

As recently as 60 years ago, the average American woman gave birth to 3.6 kids during her lifetime. Following the introduction of effective birth control pills, the U.S. total fertility rate began to fall steeply from 1960 to a nadir of 1.74 children per woman in 1976. Fertility rose again to hover just below replacement until 2007 when it began its contemporary drop to the lowest rate ever recorded. The U.S. fertility rate is now basically the same as that of other rich developed countries.

A week ago, the U.S. Census Bureau reported that in the prior decade the U.S. population grew by only 7.4 percent from 309 million to 331 million people. That is the second-lowest rate in the country’s history; the only decade with a lower growth rate (7.3 percent) was during the Great Depression in the 1930s.

Naturally, the falling fertility rate has provoked a lot of handwringing, including worries that the pressures and precarity of “late capitalism” are discouraging would-be parents from having the number of children that they would actually prefer to have.

There are good reasons to doubt that, as American Enterprise Institute’s Scott Winship reported recently over at The Dispatch. Comparing the fertility intentions collected in the National Longitudinal Survey of Youth’s 1979 and 1997 datasets, Winship, the director of poverty studies at AEI, finds that in both cohorts, about 25 percent of the women fell more than one child short of their expressed expectations as young adults. The big difference is that in 1979, some 84 percent of the women respondents expected two or more children; in 1997, only 73 percent did.

Proponents of expansive pronatalist policies such as Sen. Elizabeth Warren’s (D–Mass.) universal child care proposal or Sen. Mitt Romney’s (R–Utah) universal child allowance tax credit should keep in mind that such programs have never boosted above replacement the fertility rates in countries like Sweden, Denmark, and France.

As I argued earlier, modernity offers people a multitude of life options that compete with the bearing and rearing of children. Evidently, the trade-offs between work, travel, socializing, entertainment, sports, and parenting that people are making reduce fertility. The upshot is that modern people considering their options are voluntarily choosing to have fewer children. Freedom of choice is a good thing.

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Reason has added a new feature to its commenting system: You can now mute, just for yourself, comments posted by any commenters; simply click “Mute User” on their post. (You need to be signed on to the site to do that, since your personal muted-users list is kept with your user profile.)

As you may know, I try to take a light hand in moderating the existing comments. People can and do express all sorts of views in the comments; I occasionally delete comments that involve personal insults of fellow commenters, vulgar insults more generally, threats of violence, or, occasionally, rhetorical calls for mass killing of one’s opponents.

One commenter, for instance, has repeatedly complained that I deleted his posts where he called other commenters “slack-jaws” or, presumably thinking himself clever, labeled defenders of the police that he disagreed with as engaging in “cop succor.” I stand entirely by those decisions; I think these sorts of insults and vulgarities poison the conversation, and I want the comment threads to be a conversation. Every so often, I’ll entirely block a commenter on similar grounds.

But I don’t like to do that, and I don’t generally ban commenters who I think are persistently foolish, dishonest, anti-Semitic, racist, and so on—or are just merely cranks trying to shift each conversation to their peculiar hobby-horses. Life is too short to spend much time on comment moderation. And, more importantly, I generally want each of you to decide what comments you want to read, rather than having me do that.

This new feature will make it easier for each of you to do that. None of you has any obligation to read any commenter (or for that matter to read our blog at all!)—if you find that someone’s comments make the blog less valuable for you rather than more, you should feel free to mute them. I expect you already do that mentally, by just skipping over comments from certain people. This will make it easier.

Naturally, I hope our readers won’t mute a thoughtful commenter just because they disagree with that commenter: I think part of the value of our comments is the ability to read interesting perspectives from many sides. But that’s a choice that each reader will get to make.

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Today’s Facebook Oversight Board decision on the Trump ban raises many interesting questions: When should politicians’ speech be blocked on the grounds that it “supports” or “legitimizes” riots (whether right-wing or left-wing)? When can Facebook ban claims of electoral fraud on the grounds that they are “unfounded,” and when should it conclude that the debate about the often uncertain events in a recent election is ongoing and legitimate? (Say what you will about bans on Holocaust denial, but those came after a consensus built on decades of comprehensive scholarly study of the subject.) What sort of further transparency should Facebook provide for its decisions? How long should Trump be banned from Facebook?

But for this post, I want to set those questions aside, because the question at the heart of the matter is much more far-reaching: It is,

What rules should govern how Americans communicate with other Americans, including on Facebook, which “has become a virtually indispensable medium for political discourse, and especially so in election periods”?

There are at least three possible answers:

1. American free speech principles, coupled with the judgment of American speakers and American listeners.
2. An immensely rich and powerful corporation, and its immensely rich and powerful owners and managers.
3. International law principles, as made and enforced by an international group of decisionmakers (on which Americans are represented but are understandably not in control).

There is a lot to be said for each of the possible answers. Obviously, many libertarians and other supporters of private property rights would support option 2: By default, property owners are entitled to control what is said and done on and with their property. That of course has historically been so for many other powerful entities, such as newspaper, magazine, and book publishers. It isn’t always so: For instance, phone companies (land-line or cell) and delivery services (such as UPS and FedEx) are “common carriers,” which can’t just cancel someone’s phone number or delivery service because they think that person’s or group’s viewpoints are dangerous or evil.

But many libertarians would oppose such common-carrier rules as well. And even people who think private-property principles can be overcome in unusual situations might view Big Tech power as not being perilous enough to justify restrictions on private property here. (Plus there are few problems so bad that they can’t be made even worse by badly crafted or implemented government regulations.)

Likewise, many people might support option 3—the option that the Facebook Oversight Board seemed to take (you can start by counting the number of references to international norms in their decision). They might think that international law principles related to free speech are better than American free speech principles. Or they might think that it’s just better to have uniform principles, especially for decisions of a multinational corporation. Or they might think that American free speech principles are better when it comes to threat of jail or fines, but the international free speech principles are better when it comes to decisions about whom to eject from social media platforms.

I have to say, though, that I’m tentatively inclined towards option 1 (and of course towards similar options for other democracies’ laws as to speech among their residents). That’s so for speech by a sitting President to his citizens. It’s so for speech by other officials, who may have fewer other ways than Trump did of reaching the public. It’s so for speech by candidates for office, and activists, and ordinary citizens. This ability to effectively communicate with each other is vital to American democracy, not just to our individual rights.

I was just on a radio program on this with an expert from the Brennan Center, who noted that Facebook couldn’t “totally suppress” people’s speech. Of course that’s right—it can only partially suppress their speech. But such partial suppression can still do much to shape the course of American political debate. Should it be able to?

Of course, historically newspapers and other publishers have had substantial power over public debate, and I think they have the First Amendment rights what to print in their pages. But I think (more on that in later posts) that, when it comes to their decisions about what to host, Facebook, Twitter, and Google’s YouTube should be treated more like phone companies, who don’t have such a right.

As Facebook’s own Oversight Board mentioned, and as I quoted above, Facebook “has become a virtually indispensable medium for political discourse, and especially so in election periods.” It is in effect close to a monopoly in its immensely important market niche—which is especially important in an environment of political competition, where even small restraints on speech can swing elections and other public decisions. Facebook shouldn’t have the power to control political debate, any more than phone companies should.

That’s particularly clear when you see the minority views mentioned in the Oversight Board opinion. (We don’t know how large the minority was, but my guess is that it was repeatedly mentioned in the opinion because it wasn’t just one or two people—and a minority today can become a majority soon enough.) Here is the passage; the citations are to international legal rules (emphases and paragraph breaks added added):

For the minority of the Board, while a suspension of an extended duration or permanent disablement could be justified on the basis of the January 6 events alone, the proportionality analysis should also be informed by Mr. Trump’s use of Facebook’s platforms prior to the November 2020 presidential election.

In particular, the minority noted the May 28, 2020, post “when the looting starts, the shooting starts,” made in the context of protests for racial justice, as well as multiple posts referencing the “China Virus.” Facebook has made commitments to respect the right to non-discrimination (Article 2, para. 1 ICCPR, Article 2 ICERD) and, in line with the requirements for restrictions on the right to freedom of expression (Article 19, para. 3 ICCPR), to prevent the use of its platforms for advocacy of racial or national hatred constituting incitement to hostility, discrimination or violence (Article 20 ICCPR, Article 4 ICERD). The frequency, quantity and extent of harmful communications should inform the Rabat incitement analysis (Rabat Plan of Action, para. 29), in particular the factors on context and intent.

For the minority, this broader analysis would be crucial to inform Facebook’s assessment of a proportionate penalty on January 7, which should serve as both a deterrent to other political leaders and, where appropriate, an opportunity of rehabilitation. [The majority also noted that “[p]eriods of suspension should be long enough to deter misconduct.”]

I’m all for deterrents to political leaders. I just think that the deterrent should be threat of voters throwing the bums out—not the viewpoint-based judgments of a massive corporation applying international law norms.

I don’t want American candidates (or activists or citizens) to be pressured to adjust their messages to foreign legal standards, or to the judgment of Facebook employees or executives or oversight board members. And I don’t want people who want to operate on an equal footing with their political opponents to feel the need to “rehabilitate” themselves, in international lawyers’ eyes or a massive corporation’s eyes.

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Florida lawmakers have done Republican Gov. Ron DeSantis’ bidding by passing a bill that would forbid social media companies from deplatforming candidates who are running for office. But an exception tossed in the bill to exempt certain major companies like Disney and Comcast highlights the bill’s many legal and constitutional issues.

The bill, S.B. 7072, would allow for fines of up to $250,000 per day for candidates for statewide offices, $25,000 a day for lower offices if an online platform refuses to host a candidate. The bill also prohibits shadow banning, the practice of allowing a person to continue using the platform while limiting who can see their posts, for political candidates during their races. There’s an exception carved out for obscene content. The bill covers online platforms that have annual gross revenues of at least $100 million or at least 100 million global users.

DeSantis is expected to sign the bill, which is scheduled to go into effect on July 1, but will almost certainly be challenged in court.

The bill is getting the most media attention for this political component, essentially ordering private online tech companies to serve the communication needs of politicians. Critics of the legislation argue it’s a violation of the First Amendment rights of tech companies, who have the power to decide whose messages they want to host. The bill attempts to get around this concern by simply declaring that social media companies “should be treated similarly to common carriers” like phone companies, an argument some find compelling.

On April 29, just prior to the bill’s passage, its sponsor, state Sen. Ray Rodrigues (R–Lee County) amended the bill to exempt any system “operated by a company that owns and operates a theme park or entertainment complex.” This is clearly a carveout for Disney, whose power to influence legislation in the state is hard to overstate. It will also most certainly cover any site run by cable juggernaut Comcast, which owns the Universal Studios Theme Parks, one of which is also in Orlando.

One of the bill’s sponsors, state Rep. Blaise Ingoglia (R–Spring Hill) said the quiet part out loud when asked about it—that they wanted to make sure certain companies with big economic footprints in Florida “aren’t caught up in this.” The obvious conclusion is that the bill wants to control what some companies do but not other similarly situated companies who have online platforms that would potentially be affected.

“The theme park thing is going to kill this bill [in court],” Berin Szóka, president of technology think tank TechFreedom, tells Reason. Szóka explained in detail in March over at Lawfare why the proposed ban on deplatforming was unconstitutional and trampled on the First Amendment rights of media and tech companies. Lawmakers’ choice to exempt major Florida-based companies clarifies that their goal is to control private speech. Szóka says judges will see right through what lawmakers are attempting to do.

“First Amendment scrutiny is largely about avoiding the abuse of the law against editorial decisions politicians don’t like,” Szóka says. “It’s very obvious that nobody involved in [the bill] consulted a First Amendment lawyer. It becomes very obvious the purpose of the bill is to target certain companies and ignore others.”

Szóka has noted a host of Supreme Court decisions that upheld the right of private companies to refuse to carry speech, even in cases where monopoly control over communication platforms was alleged. In the case of Miami Herald Publishing Company v. Tornillo, the Supreme Court unanimously struck down a Florida law that mandated newspapers provide space for political candidates to respond to criticism about them. Szóka wrote:

The court has repeatedly held that digital media enjoy the same First Amendment protection as traditional media. DeSantis counters that Big Tech companies are monopolistic. The plaintiff in Miami Herald made a similar argument—and, indeed, many local markets really did have only a single newspaper. Yet the court ruled that no degree of monopoly power could diminish the First Amendment’s protection of newspapers’ editorial discretion.

Many critics of Big Tech—not only DeSantis but also politicians in other states, such as Texas, that are considering bills similar to Florida’s—have used terms like “town square” and “public forum” in arguing that the First Amendment constrains, rather than protects, the editorial discretion of large websites. But social media platforms, even big ones, do not qualify as “public fora,” in the technical legal sense, because they don’t do anything traditionally and exclusively done by the government—like running literal town squares. “Merely hosting speech by others is not a traditional, exclusive public function,” Justice Brett Kavanaugh wrote for the court in 2019, “and does not alone transform private entities into state actors subject to First Amendment constraints.” In February 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed that YouTube is not a public forum under this definition.

S.B. 7072 would also forbid social media companies from deplatforming, censoring, or concealing posts by media outlets on the basis of content. So, for example, this bill would hold Twitter liable for its October 2020 decision to block the posting of links to a New York Post story about Hunter Biden, which content moderators alleged was misleading. The Florida bill would actually force private social media companies to host messages from other private media companies, even if a social media company’s administrators believe the messages are misleading, dangerous, or in violation of their own policies.

S.B. 7072 also contains a concerning provision that would establish an “antitrust violator vendor list.” Companies convicted of antitrust violations will reportedly be placed on a list, and may not get contracts or do business with any public agency in the state. But further down in the bill there’s a nasty twist: The state’s attorney general can temporarily add a company to the list on the basis of merely being accused of or charged with antitrust violations, based on simply determining the state has “probable cause” that the violation occurred—an extremely low evidentiary threshold.

“The point is that when Republican state AGs file bullshit antitrust suits that are never going to go anywhere or [may] get tied up in court for years, it will still allow the Florida attorney general to use that as a predicate for some legal action,” Szóka says. “The point isn’t to get that judgment. It’s to drag the company through the process so you have another circle for your political theater. It’s a weapon. That’s the whole point.”

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Buried inside President Joe Biden’s $1.8 trillion American Families Plan is an attempt to resurrect a failed Obama-era effort to regulate tax preparers.

The renewed push for licensing tax preparers is wrapped around the idea that Americans are defrauded by unprofessional assistance during tax time, even though the administration seems to offer little more than anecdotal evidence that this is a serious problem.

“Taxpayers often make use of unregulated tax preparers who lack the ability to provide accurate tax assistance,” the Treasury Department said in a statement. “These preparers submit more tax returns than all other preparers combined, and they make costly mistakes that subject their customers to painful audits, sometimes even intentionally defrauding taxpayers for their own benefit.”

That’s the same argument that the Obama administration made in 2012 when the IRS unilaterally declared that tax preparers would be subject to new licensing and continuing education requirements. That effort was eventually stymied by federal courts after a group of independent tax preparers sued over the rules with the help of the Institute for Justice, a libertarian law firm.

In that instance, the IRS had bizarrely tried to use a law from the 1880s governing compensation for horses killed during the Civil War to justify the expansive new licensing rules. Both the district court and the U.S. Court of Appeals for the District of Columbia Circuit rejected that idea. The D.C. Circuit said the IRS had tried to “unilaterally expand its authority through such an expansive, atextual, and ahistorical reading” of the underlying law.

But while the courts killed that mechanism for implementing tax preparer licensing, the idea has not died. Sen. Ron Wyden (D–Ore.), chairman of the Senate Finance Committee, has been pushing Congress to consider a licensing scheme for years, and the American Families Plan provides the perfect opportunity to make it happen.

The new rules, which would include fines for anyone caught providing tax help without the proper credentials, would create a huge new barrier for small businesses and entrepreneurs. At the same time, it would further entrench the major tax preparing providers—like H&R Block and TurboTax—as the dominant players in the market, as they would more easily be able to absorb the added costs of getting licensed and following other regulations.

As Dan Alban, an attorney for the Institute for Justice, which helped overturn the Obama-era tax preparer scheme, noted on Twitter, Biden’s plan would have the same effect as other occupational licensing schemes: “Raising prices mainly to benefit political insiders.”

The White House says the new rules are necessary for “helping many taxpayers claim the newly-expanded credits” that Biden is also proposing in his American Families Plan. But killing small businesses and robbing some taxpayers of their most readily available tax help won’t help anyone—except the TurboTaxes and H&R Blocks of the world, of course.

Instead of making the tax code more complex and then using that increased complexity to justify even more complicated regulations on who can help Americans navigate it, the Biden administration ought to try to simplify things so most people don’t need such extensive tax help in the first place.

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