Category: reason

“The New Taboo: Quoting Epithets in the Classroom and Beyond” Now Published

It’s at 49 Capital University Law Review 1, and you can read it here. A short excerpt that captures the heart of our affirmative argument:

The question of how legal discussions should deal with fact patterns that include epithets is not, of course, original to law schools. Rather, it has long arisen in the profession for which law schools train their students. We might, then, ask: How do lawyers and judges deal with this question?

The answer, it turns out, is that they routinely quote the epithets literally and precisely, without euphemisms or expurgation. A Westlaw query for nigger & date(aft 1/1/2000) finds over 9,500 Westlaw-accessible opinions (including cases, trial court orders, and administrative decisions). And that does not include the nearly 5,000 such opinions from before 2000, plus whatever is present in the vast set of trial court orders that don’t appear on Westlaw. A search for (nigga niggaz) & date(aft 1/1/2000) finds over 2,300 opinions. A similar search for “fag” yields over 3,000 references, though a few of those are false positives.

Nor is this a reflection of some special callousness towards these two epithets; courts also accurately quote other epithets. To give just one illustration, the word “cunt” appears in over 1,500 Westlaw-accessible opinions, over 3,500 appellate briefs and trial court filings, and over 650 law review articles. Unsurprisingly, these documents are written by both male and female authors; just to take as a sample the dozen most recent authored federal appellate opinions containing this word, five were written by women and seven by men—not far removed from the general female/male ratio on the federal appellate bench.

This is not a sign, we think, that judges are generally vulgar or sexist. We expect many of them would never use the word as an epithet themselves, orally or in writing; but when the word is part of the record, they quote it. They insist on accuracy and directness much more than do newspapers: searching through Lexis’s Major U.S. Newspapers database (which archives articles in 48 major newspapers) reveals exactly one quotation of “cunt,” in a 2009 article from the music calendar section of the San Antonio Express News, as part of the name of a “hardcore death metal band.”

We see the same for other vulgarisms of the sort that newspapers view as  “unprintable.” Consider this for comparison: the word “motherfucker” and its variants have never appeared in the print editions of 38 out of the 48 major United States newspapers; in the remaining ten, it appeared only sixteen times put together. But it has appeared in over 10,000 Westlaw-accessible opinions, including six from the United States Supreme Court (dating back to 1974) and over 500 from federal appellate courts. Judges seem to value direct and accurate quoting. [Further details omitted. -EV] …

These are serious, thoughtful judges, many of them liberal luminaries. It is worth considering that they might have made a sound decision in quoting the words fully and accurately.

Now the judges rarely explain why they made such a decision, but we think we can plausibly infer two things:

1. They likely concluded that, in legal matters, direct and accurate reporting of the facts is a key facet of rendering justice, even when an expurgated version or an indirect description would convey much the same information. Thus, for instance,  … People in Interest of R.D. (Colo. 2020) notes, “We reluctantly reproduce this racial slur and other pejorative terms from the record to give an uncensored account of the facts.” … And from a 2015 Rhode Island Supreme Court case:

We note that, in the testimony of both troopers, the various epithets allegedly uttered by defendant on the night of his arrest were transcribed without redaction. We have chosen to reproduce their testimony in this opinion in a similarly unbowdlerized fashion because what defendant is alleged to have actually said is so central to the issues on appeal. Unfortunately, many of the words in question are likely to cause real offense to some readers, but we are convinced that an unflinching examination of  defendant’s speech is critical to a just analysis of his arguments.

2. The judges also appear to adopt the use-mention distinction …. Though they doubtless think that using an epithet as an insult is wrong, they apparently see it as quite proper to mention it as a fact from the record or in a quote from a precedent (and see it as no serious burden on their audience).

This is well-established as to vulgarities: Though “courts condemn counsel’s use of profanity in the courtroom,” “courts generally find it permissible for a prosecutor to repeat profanity in argument when the profanity is part of the evidence presented at trial.” Similarly, consider In the Matter of Cullins, where the Kansas Supreme Court suspended a trial judge for using vulgarities and epithets—”fuck,” “bitch,” and “cunt”—and in the process itself quoted the words forty-four, nine, and nine times, respectively, indeed without apologizing for or even remarking on its quotations. The court was apparently drawing a sharp line between a judge saying offensive things, which it was punishing, and a judge quoting the words in discussing the facts of the case.

And courts follow the same pattern as to racial slurs. To give one example, consider this sentence from a 2020 [Ninth Circuit] opinion …: “We have considerable difficulty accepting … that, at this time in our history, people who use the word ‘nigger’ are not racially biased.” Surely that’s right, but surely the judges did not think this makes them racially biased for including the word, or for quoting it six other times in the opinion. Rather, the judges are again distinguishing mentioning the word (which they apparently view as quite proper) from using it (which they recognize is strong evidence of racial bias).

Naturally, this is just part of the argument (the article is 65 pages long, with lots of further analysis and evidence); other parts deal, among other things, with counterarguments, such as proposed distinctions between written and oral references, proposed distinctions between the classroom and the courtroom, claims about trauma, and more. I hope our readers find it interesting.

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How To Navigate Through Virtue Signaling and Disinformation


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On this Monday’s Reason Roundtable, Matt Welch, Katherine Mangu-Ward, Peter Suderman, and Nick Gillespie compare standings on masks and D.C. statehood.

Discussed in the show:

1:24: Coronavirus check-in. Do we need to wear masks outside? Are we just doing this because everyone else is?

20:31: Weekly Listener Question: The rash of dangerous disinformation regarding all things related to the pandemic is making me waver on my maximalist commitment to free speech and to think that maybe we should censor just a few of the most dangerous voices. Please tell me where I’m wrong in thinking about this.

28:56: D.C. statehood: retrocession into MD, or stick to the status quo?

41:57: Biden’s first 100 days.

51:12: Media recommendations for the week.

This weeks links:

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

Today’s sponsors:

  • Get an up-close look at the history of the Constitution with the Institute for Justice’s new podcast, Bound by Oath. Available wherever you check out podcasts.
  • On October 2, 2018, respected Washington Post journalist Jamal Khashoggi entered the Saudi consulate in Istanbul, Turkey. He was never seen alive again. From the Academy Award–winning director Bryan Fogel, The Dissident is now streaming on On Demand.

Audio production by Ian Keyser.
Assistant production by Regan Taylor.
Music: “Angeline,” by The Brothers Steve.

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“The Common Objects of their Love”

In his inaugural address this past January, President Biden quoted, of all people, the Fifth-Century Christian saint, Augustine of Hippo. In City of God, Augustine famously defined a “people”–what we would today think of as a political society–as “an assemblage of reasonable beings bound together by a common agreement as to the objects of their love.” President Biden paraphrased that definition to make a point about Americans today:

Many centuries ago, Saint Augustine, a saint of my church, wrote that a people was a multitude defined by the common objects of their love.

What are the common objects we love that define us as Americans?

I think I know.

Opportunity.

Security.

Liberty.

Dignity.

Respect.

Honor.

And, yes, the truth.

I have been puzzling over this appropriation of Augustine. Let’s leave aside the switch of “reasonable beings,” which for some reason discomfited the speechwriters, to “a multitude.” In what sense are Americans today united by common objects of affection? The president listed several values he believes we share–several things that all of us love, as Americans. But one doesn’t have to probe too deeply to see that, even if we share some abstract commitment to these values, Americans do not agree on what they entail in any particular context. Everything, it seems, has become partisan; even a pandemic has failed to bring us together. President Biden was no doubt trying to bridge our divisions, which is understandable and an old tradition in inaugural addresses. But it’s hard to see how his words reflect our present reality.

My colleague Marc DeGirolami and I discuss all this, as well as other aspects of City of God, in our most recent episode of Legal Spirits, our podcast series on issues in law and religion. You can listen to the episode here.

 

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The American Humanist Association’s Withdrawal of a 25-Year-Old Award to Richard Dawkins

The withdrawal was apparently over this Tweet:

Robby Soave’s analysis today strikes me as quite sound, as is that from two other AHA award winners (at least for now), Rebecca Goldstein and Steven Pinker:

[A]n association of “freethinkers” has deemed certain thoughts unthinkable, nor that it is enforcing dogmas and catechisms by excommunicating a heretic.

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“The New Taboo: Quoting Epithets in the Classroom and Beyond” Now Published

It’s at 49 Capital University Law Review 1, and you can read it here. A short excerpt that captures the heart of our affirmative argument:

The question of how legal discussions should deal with fact patterns that include epithets is not, of course, original to law schools. Rather, it has long arisen in the profession for which law schools train their students. We might, then, ask: How do lawyers and judges deal with this question?

The answer, it turns out, is that they routinely quote the epithets literally and precisely, without euphemisms or expurgation. A Westlaw query for nigger & date(aft 1/1/2000) finds over 9,500 Westlaw-accessible opinions (including cases, trial court orders, and administrative decisions). And that does not include the nearly 5,000 such opinions from before 2000, plus whatever is present in the vast set of trial court orders that don’t appear on Westlaw. A search for (nigga niggaz) & date(aft 1/1/2000) finds over 2,300 opinions. A similar search for “fag” yields over 3,000 references, though a few of those are false positives.

Nor is this a reflection of some special callousness towards these two epithets; courts also accurately quote other epithets. To give just one illustration, the word “cunt” appears in over 1,500 Westlaw-accessible opinions, over 3,500 appellate briefs and trial court filings, and over 650 law review articles. Unsurprisingly, these documents are written by both male and female authors; just to take as a sample the dozen most recent authored federal appellate opinions containing this word, five were written by women and seven by men—not far removed from the general female/male ratio on
the federal appellate bench.

This is not a sign, we think, that judges are generally vulgar or sexist. We expect many of them would never use the word as an epithet themselves, orally or in writing; but when the word is part of the record, they quote it. They insist on accuracy and directness much more than do newspapers: searching through Lexis’s Major U.S. Newspapers database (which archives articles in 48 major newspapers) reveals exactly one quotation of “cunt,” in a 2009 article from the music calendar section of the San Antonio Express News, as part of the name of a “hardcore death metal band.”

We see the same for other vulgarisms of the sort that newspapers view as  “unprintable.” Consider this for comparison: the word “motherfucker” and its variants have never appeared in the print editions of 38 out of the 48 major United States newspapers; in the remaining ten, it appeared only sixteen times put together. But it has appeared in over 10,000 Westlaw-accessible opinions, including six from the United States Supreme Court (dating back to 1974) and over 500 from federal appellate courts. Judges seem to value direct and accurate quoting. [Further details omitted. -EV] …

These are serious, thoughtful judges, many of them liberal luminaries. It is worth considering that they might have made a sound decision in quoting the words fully and accurately.

Now the judges rarely explain why they made such a decision, but we think we can plausibly infer two things:

1. They likely concluded that, in legal matters, direct and accurate reporting of the facts is a key facet of rendering justice, even when an expurgated version or an indirect description would convey much the same information. Thus, for instance,  … People in Interest of R.D. (Colo. 2020) notes, “We reluctantly reproduce this racial slur and other pejorative terms from the record to give an uncensored account of the facts.” … And from a 2015 Rhode Island Supreme Court case:

We note that, in the testimony of both troopers, the various epithets allegedly uttered by defendant on the night of his arrest were transcribed without redaction. We have chosen to reproduce their testimony in this opinion in a similarly unbowdlerized fashion because what defendant is alleged to have actually said is so central to the issues on appeal. Unfortunately, many of the words in question are likely to cause real offense to some readers, but we are convinced that an unflinching examination of  defendant’s speech is critical to a just analysis of his arguments.

2. The judges also appear to adopt the use-mention distinction …. Though they doubtless think that using an epithet as an insult is wrong, they apparently see it as quite proper to mention it as a fact from the record or in a quote from a precedent (and see it as no serious burden on their audience).

This is well-established as to vulgarities: Though “courts condemn counsel’s use of profanity in the courtroom,” “courts generally find it permissible for a prosecutor to repeat profanity in argument when the profanity is part of the evidence presented at trial.” Similarly, consider In the Matter of Cullins, where the Kansas Supreme Court suspended a trial judge for using vulgarities and epithets—”fuck,” “bitch,” and “cunt”—and in the process itself quoted the words forty-four, nine, and nine times, respectively, indeed without apologizing for or even remarking on its quotations. The court was apparently drawing a sharp line between a judge saying offensive things, which it was punishing, and a judge quoting the words in discussing the facts of the case.

And courts follow the same pattern as to racial slurs. To give one example, consider this sentence from a 2020 [Ninth Circuit] opinion …: “We have considerable difficulty accepting … that, at this time in our history, people who use the word ‘nigger’ are not racially biased.” Surely that’s right, but surely the judges did not think this makes them racially biased for including the word, or for quoting it six other times in the opinion. Rather, the judges are again distinguishing mentioning the word (which they apparently view as quite proper) from using it (which they recognize is strong evidence of racial bias).

Naturally, this is just part of the argument (the article is 65 pages long, with lots of further analysis and evidence); other parts deal, among other things, with counterarguments, such as proposed distinctions between written and oral references, proposed distinctions between the classroom and the courtroom, claims about trauma, and more. I hope our readers find it interesting.

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The American Humanist Association’s Withdrawal of a 25-Year-Old Award to Richard Dawkins

The withdrawal was apparently over this Tweet:

Robby Soave’s analysis today strikes me as quite sound, as is that from two other AHA award winners (at least for now), Rebecca Goldstein and Steven Pinker:

[A]n association of “freethinkers” has deemed certain thoughts unthinkable, nor that it is enforcing dogmas and catechisms by excommunicating a heretic.

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A New Study of COVID-19 Transmission Questions the Adequacy of the Six-Foot Rule and the Rationale for Many Occupancy Limits


social-distancing-sign-tim-mossholder-unsplash

A new MIT study of COVID-19 transmission casts doubt on both the adequacy of physical distancing guidelines and the rationale for occupancy limits in large, well-ventilated indoor settings. The study, published this week in Proceedings of the National Academy of Sciences, highlights the danger from tiny respiratory droplets that circulate throughout a room, which cannot be avoided by maintaining a distance of six feet from other people, as long recommended by the Centers for Disease Control and Prevention.

The authors—Martin Bazant, a professor of chemical engineering and mathematics, and John Bush, a professor of applied mathematics who specializes in fluid dynamics—note that the six-foot rule assumes “the primary vector of pathogen transmission is the large drops ejected from the most vigorous exhalation events, coughing and sneezing.” The rule makes sense based on that assumption, since “high-speed visualization of such events reveals that [six feet] corresponds roughly to the maximum range of the largest, millimeter-scale drops.”

But “there is now overwhelming evidence that indoor airborne transmission associated with relatively small, micron-scale aerosol droplets plays a dominant role in the spread of COVID-19.” The six-foot rule does not address that risk. In fact, Bazant and Bush say, “one is no safer from airborne pathogens” at 60 feet than at six feet when the air is well-mixed.

“We argue that, in the context of airborne transmission in a well-mixed space, the benefits of the six-foot rule are limited,” Bazant told Fox News. “As everyone in the room is breathing the same air, they share the same risk. Social distancing may thus be giving you a false sense of security. However, we note that the six-foot rule is valuable in limiting transmission by respiratory jets [such as those emitted by coughs and sneezes], which pose a heightened risk when people are not wearing masks.”

Using data from earlier research, including studies of COVID-19 superspreading events, Bazant and Bush developed a model that estimates indoor transmission risk based on factors such as ventilation, the size of the space, the number of people present, the level of activity (e.g., singing, shouting, or exercising vs. quiet speech or resting), the use of face masks, and the amount of time spent in the space. They found that some safeguards can have a dramatic impact on the likelihood that a carrier will spread the virus.

In “a typical American classroom, designed for an occupancy of 19 students and their teacher,” for instance, “the safe time after an infected individual enters the classroom is 1.2 [hours] for natural ventilation and 7.2 [hours] with mechanical ventilation.” That’s assuming “a quiet classroom,” where “resting respiration is the norm.” When masks are added, “these bounds are increased dramatically, to 8 and 80 [hours], respectively.” If students spend six hours a day in the classroom, “a school group wearing masks with adequate ventilation would thus be safe for longer than the recovery time for COVID-19,” and “school transmissions would be rare,” which jibes with what has been observed after schools are reopened.

Bazant and Bush’s estimates are much less reassuring for “elderly homes and long-term care facilities, which account for a large fraction of COVID-19 hospitalizations and deaths.” Based on New York City’s rules for nursing homes, which allow up to three residents per room and require at least 80 square feet each, and assuming natural ventilation, “the Six-Foot Rule fails after only [three minutes] under quasi-steady conditions, or after 17 [minutes] for the transient response to the arrival of an infected person.” Even with mechanical ventilation, “three occupants could safely remain in the room for no more than 18 [minutes]” in the steady-state scenario.

“This example provides insight into the devastating toll of the COVID-19 pandemic on the elderly,” Bazant and Bush write. “It underscores the need to minimize the sharing of indoor space, maintain adequate, once-through ventilation, and encourage the use of face masks.”

Bazant and Bush’s calculations also suggest that government-imposed occupancy limits, a common response to the pandemic, make sense only in some indoor settings. “Our analysis shows that many spaces may be safe to reopen at full occupancy, while others carry significant risk,” Bazant told Fox News, “depending on the amount of time people spend together, the ventilation rate, whether face masks are worn, and other factors.”

Bazant and Bush have created an online app that calculates the maximum recommended cumulative exposure time (CET) in various settings. The parameters include age group, viral strain, “room specifications” (classroom, living room, church, restaurant, etc.), and “human behavior,” including mask use and activity level. The “advanced mode” of the app includes additional factors, such as infection prevalence and population immunity.

After a person infected by the Wuhan strain enters a church occupied by 100 people who are wearing masks and speaking but not singing, for instance, the basic app says the CET should be no more than 17 hours. Assuming a one-hour service, the app recommends an occupancy limit of 211 people. For a commercial airliner with the same number of people, the maximum CET is 54 hours. The recommended maximum occupancy for an eight-hour flight is 160 passengers. Those estimates assume that a 10 percent risk of airborne transmission is tolerable.

“Often times the space is large enough, the ventilation is good enough, and the amount of time people spend together is such that those spaces can be safely operated even at full capacity, and the scientific support for reduced capacity in those spaces is really not very good,” Bazant told CNBC, mentioning large university classrooms as an example. “I think if you run the numbers, even right now, for many types of spaces, you’d find that there is not a need for occupancy restrictions.”

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A New Study of COVID-19 Transmission Questions the Adequacy of the Six-Foot Rule and the Rationale for Many Occupancy Limits


social-distancing-sign-tim-mossholder-unsplash

A new MIT study of COVID-19 transmission casts doubt on both the adequacy of physical distancing guidelines and the rationale for occupancy limits in large, well-ventilated indoor settings. The study, published this week in Proceedings of the National Academy of Sciences, highlights the danger from tiny respiratory droplets that circulate throughout a room, which cannot be avoided by maintaining a distance of six feet from other people, as long recommended by the Centers for Disease Control and Prevention.

The authors—Martin Bazant, a professor of chemical engineering and mathematics, and John Bush, a professor of applied mathematics who specializes in fluid dynamics—note that the six-foot rule assumes “the primary vector of pathogen transmission is the large drops ejected from the most vigorous exhalation events, coughing and sneezing.” The rule makes sense based on that assumption, since “high-speed visualization of such events reveals that [six feet] corresponds roughly to the maximum range of the largest, millimeter-scale drops.”

But “there is now overwhelming evidence that indoor airborne transmission associated with relatively small, micron-scale aerosol droplets plays a dominant role in the spread of COVID-19.” The six-foot rule does not address that risk. In fact, Bazant and Bush say, “one is no safer from airborne pathogens” at 60 feet than at six feet when the air is well-mixed.

“We argue that, in the context of airborne transmission in a well-mixed space, the benefits of the six-foot rule are limited,” Bazant told Fox News. “As everyone in the room is breathing the same air, they share the same risk. Social distancing may thus be giving you a false sense of security. However, we note that the six-foot rule is valuable in limiting transmission by respiratory jets [such as those emitted by coughs and sneezes], which pose a heightened risk when people are not wearing masks.”

Using data from earlier research, including studies of COVID-19 superspreading events, Bazant and Bush developed a model that estimates indoor transmission risk based on factors such as ventilation, the size of the space, the number of people present, the level of activity (e.g., singing, shouting, or exercising vs. quiet speech or resting), the use of face masks, and the amount of time spent in the space. They found that some safeguards can have a dramatic impact on the likelihood that a carrier will spread the virus.

In “a typical American classroom, designed for an occupancy of 19 students and their teacher,” for instance, “the safe time after an infected individual enters the classroom is 1.2 [hours] for natural ventilation and 7.2 [hours] with mechanical ventilation.” That’s assuming “a quiet classroom,” where “resting respiration is the norm.” When masks are added, “these bounds are increased dramatically, to 8 and 80 [hours], respectively.” If students spend six hours a day in the classroom, “a school group wearing masks with adequate ventilation would thus be safe for longer than the recovery time for COVID-19,” and “school transmissions would be rare,” which jibes with what has been observed after schools are reopened.

Bazant and Bush’s estimates are much less reassuring for “elderly homes and long-term care facilities, which account for a large fraction of COVID-19 hospitalizations and deaths.” Based on New York City’s rules for nursing homes, which allow up to three residents per room and require at least 80 square feet each, and assuming natural ventilation, “the Six-Foot Rule fails after only [three minutes] under quasi-steady conditions, or after 17 [minutes] for the transient response to the arrival of an infected person.” Even with mechanical ventilation, “three occupants could safely remain in the room for no more than 18 [minutes]” in the steady-state scenario.

“This example provides insight into the devastating toll of the COVID-19 pandemic on the elderly,” Bazant and Bush write. “It underscores the need to minimize the sharing of indoor space, maintain adequate, once-through ventilation, and encourage the use of face masks.”

Bazant and Bush’s calculations also suggest that government-imposed occupancy limits, a common response to the pandemic, make sense only in some indoor settings. “Our analysis shows that many spaces may be safe to reopen at full occupancy, while others carry significant risk,” Bazant told Fox News, “depending on the amount of time people spend together, the ventilation rate, whether face masks are worn, and other factors.”

Bazant and Bush have created an online app that calculates the maximum recommended cumulative exposure time (CET) in various settings. The parameters include age group, viral strain, “room specifications” (classroom, living room, church, restaurant, etc.), and “human behavior,” including mask use and activity level. The “advanced mode” of the app includes additional factors, such as infection prevalence and population immunity.

After a person infected by the Wuhan strain enters a church occupied by 100 people who are wearing masks and speaking but not singing, for instance, the basic app says the CET should be no more than 17 hours. Assuming a one-hour service, the app recommends an occupancy limit of 211 people. For a commercial airliner with the same number of people, the maximum CET is 54 hours. The recommended maximum occupancy for an eight-hour flight is 160 passengers. Those estimates assume that a 10 percent risk of airborne transmission is tolerable.

“Often times the space is large enough, the ventilation is good enough, and the amount of time people spend together is such that those spaces can be safely operated even at full capacity, and the scientific support for reduced capacity in those spaces is really not very good,” Bazant told CNBC, mentioning large university classrooms as an example. “I think if you run the numbers, even right now, for many types of spaces, you’d find that there is not a need for occupancy restrictions.”

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A Ban on Menthol Cigarettes Will Lead to More Confrontations Between Black People and Police


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In 1924, Ohioan Lloyd “Spud” Hughes filed a patent application for his original technique of treating tobacco with menthol, creating a cigarette that was “cooling and soothing to irritated membranes” while being allegedly “absolutely non-injurious” and “pleasant to the taste.” A century later, his invention having become immensely popular among African American smokers, the menthol cigarette is on the verge of being completely prohibited throughout the United States.

Advocacy groups are applying renewed pressure on the Biden administration to institute a nationwide ban. “The predatory marketing of menthol cigarettes and other flavored tobacco products must be stopped and we should all recognize this as a social justice issue, and one that disproportionately impacts youth and communities of color,” reads a letter signed by groups including the NAACP and the African American Tobacco Control Leadership Council. The Food and Drug Administration (FDA) has until April 29 to respond to a lawsuit seeking a menthol ban.

It’s not surprising that health groups want menthol cigarettes taken off the market. The more interesting subject is how the public health case against menthol collides with concerns about the policing of black communities, placing progressives in the uncomfortable position of endorsing a new form of drug prohibition. Is the cause of social justice truly served by outlawing a product precisely because of its popularity with African Americans?

The question has divided civil liberties and civil rights groups, with organizations including the American Civil Liberties Union, Law Enforcement Action Partnership, and Al Sharpton’s National Action Network voicing opposition to menthol bans. “Any prohibition on menthol and flavored tobacco products promises continued over-criminalization and mass incarceration of people of color,” they warned in a letter to Congress last year.

Ban advocates gloss over these concerns by emphasizing that the law would be enforced against sellers, not consumers, of menthol cigarettes. But big tobacco companies have too much on the line to defy the FDA; illicit markets for menthol cigarettes would most likely be run by people within the communities the ban is intended to protect.

If a ban is implemented, illicit market entrepreneurs would still have ready access to both cigarettes and menthol flavoring. No offense to “Spud” Hughes, but it doesn’t take a genius to figure out how to combine the two. His patent application spelled out the process in just a few sentences. Unless the federal government attempts to turn menthol itself into a controlled substance, there will surely be many small-time sellers of menthol cigarettes meeting the demand of the millions of Americans who smoke them, including at least 77 percent of black smokers, but possibly as high as 88 percent (and around a quarter of white smokers).

As Jonathan Haggerty and Arthur Rizer, previously of the R Street Institute, noted in 2019, this presents a dilemma. “Enforcing a menthol ban—even just against dealers—would increase black communities’ exposure to police. The alternative is to implement a ban and hope for lax enforcement, which amounts to little more than signaling.”

This is no idle worry. Recall that Eric Garner’s fatal encounter with police began with an arrest for the petty crime of selling loose cigarettes and ended with him being choked to death by a New York City cop. (Garner’s mother, Gwendolyn Carr, became a vocal opponent of a proposal to ban menthol cigarettes in New York City.) And in Massachusetts, which banned menthol cigarettes in 2020, at least one illicit seller is facing prosecution amid a reportedly thriving black market. Executives at big tobacco companies might lament the loss in sales of menthol cigarettes, but the brunt of enforcement is more likely to be borne by people such as Garner, especially if a federal ban is backed by state and local measures.

Most professionals in the field of tobacco control have decided that the potential health benefits of banning menthol are nonetheless worth the risks of creating illicit markets. Research from the University of Michigan, along with other sources, suggests that menthol has played a significant role in the perpetuation of smoking. It’s not far-fetched to conclude that a federal ban would have salutary health effects, but resorting to such an extreme measure does betray a lack of imagination. There are many options for reducing the harms of smoking that are much less coercive than prohibition.

The United States has yet to fully embrace tobacco harm reduction by actively promoting products such as electronic cigarettes and snus as safer alternatives to deadly cigarettes. The closest the federal government has come to such an approach was the “comprehensive plan” announced by then-commissioner of the FDA Scott Gottlieb. This two-pronged plan was supposed to redirect smokers to lower-risk products by making cigarettes less appealing (by banning menthol or reducing nicotine content) while encouraging smokers to switch to vaping. Unfortunately, Gottlieb himself was never up to the challenge of the latter, and by 2019 officials at all levels of government had turned to demonizing e-cigarettes.

In practice, sweet talk of nudging smokers toward safer alternatives has consistently turned out to be all stick, no carrot.

This reflects a larger trend of illiberalism within the antismoking movement, which has come to view smokers less as equals with rights to be respected than as deviants or addicts whose behavior must be controlled to win the war against Big Tobacco. This domineering attitude extends to the press, too. While coverage of the proposed menthol ban sometimes addresses its potential unintended consequences, the intended consequence of forbidding menthol smokers from buying the products they prefer is virtually never questioned. As recently noted by Marc Gunther, a journalist who covers the influence of philanthropic groups, “the voices of smokers are noticeably absent from this debate.”

Take, for example, a recent poll by the Truth Initiative, an antismoking group that advocates for a menthol ban. Their research found that although a majority of nonsmokers support banning menthol, only 28.5 percent of current menthol smokers endorse the measure. Rather than taking the hint that the vast majority of menthol smokers prefer to be left alone, the group dismissed this rejection as “revealing an opportunity to further increase support among those who would be most impacted by a ban.”

Banning menthol is now pitched as a social justice issue, but if we take the stated preferences of menthol smokers seriously, the racial politics cut the other way. White smokers would remain free to purchase the unflavored cigarettes that most of them currently consume, while black smokers would be paternalistically forbidden from exercising their own desires and subjected to policing of illicit markets if they try to fulfill them.

“I’d be livid,” ex-smoker Deron Snyder wrote for The Root in 2010, ” [If I] discovered that my Salems were forbidden while those disgusting Marlboros were still on sale….Why would the government ban the cigarettes that I prefer, while the estimated 78 percent of non-Latino, white smokers who prefer non-mentholated cigarettes are allowed to keep on puffing?”

It’s a valid question, albeit one that is unlikely to give pause to advocates within the contemporary antismoking movement. Their discourse portrays smokers, particularly black smokers, as passive victims of predatory tobacco companies lacking agency of their own. To give consideration to their liberties would require acknowledging that people smoke for many reasons, including pleasure, and that smokers deserve to be treated as more than just collateral damage in the war against Big Tobacco. These are truths that public health activists are loath to admit, but they are the starting point for crafting more humane policies toward smokers and other consumers of nicotine.

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A Ban on Menthol Cigarettes Will Lead to More Confrontations Between Black People and Police


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In 1924, Ohioan Lloyd “Spud” Hughes filed a patent application for his original technique of treating tobacco with menthol, creating a cigarette that was “cooling and soothing to irritated membranes” while being allegedly “absolutely non-injurious” and “pleasant to the taste.” A century later, his invention having become immensely popular among African American smokers, the menthol cigarette is on the verge of being completely prohibited throughout the United States.

Advocacy groups are applying renewed pressure on the Biden administration to institute a nationwide ban. “The predatory marketing of menthol cigarettes and other flavored tobacco products must be stopped and we should all recognize this as a social justice issue, and one that disproportionately impacts youth and communities of color,” reads a letter signed by groups including the NAACP and the African American Tobacco Control Leadership Council. The Food and Drug Administration (FDA) has until April 29 to respond to a lawsuit seeking a menthol ban.

It’s not surprising that health groups want menthol cigarettes taken off the market. The more interesting subject is how the public health case against menthol collides with concerns about the policing of black communities, placing progressives in the uncomfortable position of endorsing a new form of drug prohibition. Is the cause of social justice truly served by outlawing a product precisely because of its popularity with African Americans?

The question has divided civil liberties and civil rights groups, with organizations including the American Civil Liberties Union, Law Enforcement Action Partnership, and Al Sharpton’s National Action Network voicing opposition to menthol bans. “Any prohibition on menthol and flavored tobacco products promises continued over-criminalization and mass incarceration of people of color,” they warned in a letter to Congress last year.

Ban advocates gloss over these concerns by emphasizing that the law would be enforced against sellers, not consumers, of menthol cigarettes. But big tobacco companies have too much on the line to defy the FDA; illicit markets for menthol cigarettes would most likely be run by people within the communities the ban is intended to protect.

If a ban is implemented, illicit market entrepreneurs would still have ready access to both cigarettes and menthol flavoring. No offense to “Spud” Hughes, but it doesn’t take a genius to figure out how to combine the two. His patent application spelled out the process in just a few sentences. Unless the federal government attempts to turn menthol itself into a controlled substance, there will surely be many small-time sellers of menthol cigarettes meeting the demand of the millions of Americans who smoke them, including at least 77 percent of black smokers, but possibly as high as 88 percent (and around a quarter of white smokers).

As Jonathan Haggerty and Arthur Rizer, previously of the R Street Institute, noted in 2019, this presents a dilemma. “Enforcing a menthol ban—even just against dealers—would increase black communities’ exposure to police. The alternative is to implement a ban and hope for lax enforcement, which amounts to little more than signaling.”

This is no idle worry. Recall that Eric Garner’s fatal encounter with police began with an arrest for the petty crime of selling loose cigarettes and ended with him being choked to death by a New York City cop. (Garner’s mother, Gwendolyn Carr, became a vocal opponent of a proposal to ban menthol cigarettes in New York City.) And in Massachusetts, which banned menthol cigarettes in 2020, at least one illicit seller is facing prosecution amid a reportedly thriving black market. Executives at big tobacco companies might lament the loss in sales of menthol cigarettes, but the brunt of enforcement is more likely to be borne by people such as Garner, especially if a federal ban is backed by state and local measures.

Most professionals in the field of tobacco control have decided that the potential health benefits of banning menthol are nonetheless worth the risks of creating illicit markets. Research from the University of Michigan, along with other sources, suggests that menthol has played a significant role in the perpetuation of smoking. It’s not far-fetched to conclude that a federal ban would have salutary health effects, but resorting to such an extreme measure does betray a lack of imagination. There are many options for reducing the harms of smoking that are much less coercive than prohibition.

The United States has yet to fully embrace tobacco harm reduction by actively promoting products such as electronic cigarettes and snus as safer alternatives to deadly cigarettes. The closest the federal government has come to such an approach was the “comprehensive plan” announced by then-commissioner of the FDA Scott Gottlieb. This two-pronged plan was supposed to redirect smokers to lower-risk products by making cigarettes less appealing (by banning menthol or reducing nicotine content) while encouraging smokers to switch to vaping. Unfortunately, Gottlieb himself was never up to the challenge of the latter, and by 2019 officials at all levels of government had turned to demonizing e-cigarettes.

In practice, sweet talk of nudging smokers toward safer alternatives has consistently turned out to be all stick, no carrot.

This reflects a larger trend of illiberalism within the antismoking movement, which has come to view smokers less as equals with rights to be respected than as deviants or addicts whose behavior must be controlled to win the war against Big Tobacco. This domineering attitude extends to the press, too. While coverage of the proposed menthol ban sometimes addresses its potential unintended consequences, the intended consequence of forbidding menthol smokers from buying the products they prefer is virtually never questioned. As recently noted by Marc Gunther, a journalist who covers the influence of philanthropic groups, “the voices of smokers are noticeably absent from this debate.”

Take, for example, a recent poll by the Truth Initiative, an antismoking group that advocates for a menthol ban. Their research found that although a majority of nonsmokers support banning menthol, only 28.5 percent of current menthol smokers endorse the measure. Rather than taking the hint that the vast majority of menthol smokers prefer to be left alone, the group dismissed this rejection as “revealing an opportunity to further increase support among those who would be most impacted by a ban.”

Banning menthol is now pitched as a social justice issue, but if we take the stated preferences of menthol smokers seriously, the racial politics cut the other way. White smokers would remain free to purchase the unflavored cigarettes that most of them currently consume, while black smokers would be paternalistically forbidden from exercising their own desires and subjected to policing of illicit markets if they try to fulfill them.

“I’d be livid,” ex-smoker Deron Snyder wrote for The Root in 2010, ” [If I] discovered that my Salems were forbidden while those disgusting Marlboros were still on sale….Why would the government ban the cigarettes that I prefer, while the estimated 78 percent of non-Latino, white smokers who prefer non-mentholated cigarettes are allowed to keep on puffing?”

It’s a valid question, albeit one that is unlikely to give pause to advocates within the contemporary antismoking movement. Their discourse portrays smokers, particularly black smokers, as passive victims of predatory tobacco companies lacking agency of their own. To give consideration to their liberties would require acknowledging that people smoke for many reasons, including pleasure, and that smokers deserve to be treated as more than just collateral damage in the war against Big Tobacco. These are truths that public health activists are loath to admit, but they are the starting point for crafting more humane policies toward smokers and other consumers of nicotine.

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