Category: reason

Manhattan will dismiss thousands of prostitution and unlicensed massage cases, District Attorney Cy Vance, Jr. announced on Wednesday. Going forward, Vance’s office will also decline to prosecute people for selling sexual activity—though they can still be arrested, and people paying for such services will still be arrested and prosecuted. Additionally, the office will stop prosecuting people for unlicensed massage.

Overall, it’s a positive step. Vance’s office has moved to dismiss 914 prostitution and unlicensed massage cases and 5,080 loitering for the purpose of prostitution cases (New York legislators repealed the prostitution loitering law statewide in February). It’s also a reassuring sign of changing attitudes toward sex work and the criminal justice system.

Manhattan follows in the footsteps of Baltimore, which stopped prosecuting prostitution cases (for sex workers and their customers) and an array of other non-violent misdemeanors last year. And the move comes at a time when statehouses across the country have been considering prostitution decriminalization initiatives.

For decriminalization to happen in New York, the legislature will have to get involved. That means prostitution—whichever end of the exchange one is on—is still illegal in Manhattan, and a future district attorney could decide to start prosecuting sex workers again. Particular prosecutors pledging leniency is great, but it doesn’t negate the need for legislative change.

That’s especially true since Vance’s office will only offer leniency for sex workers, not their customers. That means Manhattan cops will still be policing private and consensual sexual activity between adults—still doing prostitution stings, still making prostitution arrests, and still prosecuting people on charges of patronizing a person for prostitution.

What Vance’s office is advocating is a form of asymmetrical criminalization, often called the Nordic Model. It’s a system that still creates many of the same harms as total criminalization, since it still forces sex work and sex workers underground.

Under the Nordic Model, sex workers must keep their whereabouts and activities secret or else face cops coming and arresting all their customers. Sex workers themselves may also be arrested in order to get them to comply in cases against their customers, coworkers, or bosses. And sex workers doing things like helping one another post ads, referring customers to each other, or sharing a physical work space can still be prosecuted as pimping, money laundering, or brothel-keeping.

All of this seriously limits the safety utility of not prosecuting people for selling sex, despite the fact that many advocates for asymmetrical criminalization claim it’s about keeping sex workers safe. It also does little to reduce law enforcement contact with sex workers or cut down on the amount of time and resources devoted to policing sex.

In Manhattan, police aren’t being asked to actually refrain from arresting sex workers or unlicensed masseuses. The plan is to still arrest these populations—still putting them into unnecessary contact with cops, still disrupting their work, still putting them on the state’s radar—but to ultimately let them go if unlicensed massage or selling sex is their only offense.

“Any arrest involving these charges should be referred to the Human Trafficking Response Unit,” state’s Manhattan’s new policy. “In cases where they are the sole charge, the Human Trafficking Response Unit will complete all necessary paperwork to formally decline to prosecute these cases and will arrange for information about voluntary services to be provided to the person arrested, but these services will no longer be mandated.”

Vance’s office notes that the new policy “does not preclude us from bringing other charges that may stem from a prostitution-related arrest.”

While a Nordic Model-style system may be better than full criminalization, it’s not what researchers, civil liberties advocates, and public health groups recommend, nor what sex workers say they want or need to keep them safe. What they’re asking for is full decriminalization of prostitution between consenting adults—a system in which neither sex workers nor their customers are arrested or prosecuted.

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A bipartisan group of lawmakers has introduced a bill to stop federal law enforcement from sidestepping citizens’ privacy rights by secretly purchasing our personal data from third-party brokers.

In 2018 the Supreme Court ruled in Carpenter v. United States that the FBI violated a suspect’s Fourth Amendment rights by tracking his cellphone without getting a warrant first. The majority opinion, written by Chief Justice John Roberts, concluded that “We hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information].”

In response to the ruling, federal agencies began looking for ways to just buy the information from brokers who were collecting it from third parties.

And so a group of privacy-minded lawmakers—including Sens. Rand Paul (R–Ky.), Ron Wyden (D–Ore.), Patrick Leahy (D–Vt.), and Mike Lee (R–Utah)—has introduced The Fourth Amendment Is Not For Sale Act. The bill prohibits federal law enforcement and intelligence agencies from attempting to bypass court order requirements by purchasing private citizen tech data from brokers or any third-party company that may have legitimately or illegitimately obtained the information.

In the past two years, we’ve seen the feds make this end run several times. In February 2020, the Wall Street Journal revealed the U.S. Immigration and Customs Enforcement purchased a commercial database full of cellphone tracking data (the very type of information the Supreme Court ruled was private) for immigration enforcement purposes. At the time, a Customs and Border Protection spokesperson said that while the database included tracking information, this was somehow different from the Supreme Court case because it didn’t involve the use of cell towers to aid in the tracking, an argument that deliberately ignores the part of the decision that says that we have an expectation of privacy for records of our physical movements, regardless of the means used to access those records.

We’ve seen other signs of the feds purchasing our personal data. Last June the Wall Street Journal reported that the IRS had purchased access to cellphone location data in order to try to track down tax cheats. They apparently ended their subscription to the service after it failed to help them find any suspects.

The Fourth Amendment Is Not for Sale Act won’t actually ban the purchase of this data, but it will require federal law enforcement officers to go get a court order, just as they have to do now if they want to force a phone service provider to cough up your information. It prohibits the use of this data as evidence if it’s not legitimately collected. It also adjusts the rules of Foreign Intelligence Surveillance Act (FISA) courts to protect the private data of Americans abroad.

“The Fourth Amendment’s protection against unreasonable search and seizure ensures that the liberty of every American cannot be violated on the whims, or financial transactions, of every government officer,” Paul said in a prepared statement. “This critical legislation will put an end to the government’s practice of buying its way around the Bill of Rights by purchasing the personal and location data of everyday Americans.”

“There’s no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider,” Wyden said. “This bill closes that legal loophole and ensures that the government can’t use its credit card to end-run the Fourth Amendment.”

Wyden and Paul have been longtime bipartisan buddies in the fight to protect Americans from warrantless federal surveillance. A House version is expected to be introduced today by Reps Jerry Nadler (D–N.Y.) and Zoe Lofgren (D–Calif.).

The Senate version has several other notable cosponsors, including former presidential candidates Elizabeth Warren (D–Mass.), Bernie Sanders (I–Vt.), and Cory Booker (D–N.J.). A transpartisan group of tech and civil liberties organizations, including the American Civil Liberties Union, FreedomWorks, Demand Progress, the Due Process Institute, the NAACP, and Americans for Prosperity, have all signed on in support.

It’s unfortunate that such a bill is even necessary, but given that federal officials argue that the Carpenter decision is about cell towers and not our overall data privacy, clearly it’s needed.

 

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Litigation over state and federal COVID-19 regulations has highlighted the potential conflict between public health measures and constitutionally protected liberties. Recent cases have implicated the constitutional protection of religious exercise, reproductive rights, and property rights, among other things. These cases also highlight that conflicts over regulatory measures may pit agency expertise against constitutional rights.

As a general matter, courts are quite deferential to federal agency policy judgments, particularly where such judgments are informed by scientific expertise. The degree of deference given to expert agency scientific judgments is so great that it is often referred to as “super deference.” The reasons for this degree of deference are understandable, as courts lack the scientific expertise of agencies, but are nonetheless controversial.

In “Super Deference and Heightened Scrutiny,” forthcoming in the Florida Law Review, I explore the potential tension between judicial deference to federal agency scientific judgments and the application of heightened scrutiny, and argue that the latter should trump the former. I first became interested in this question in the context of commercial speech regulation, as federal agencies sometimes seek to restrict or compel commercial speech on questionable grounds, but then recognized the conflict had broader implications to other contexts in which heightened scrutiny is implicated.

I have posted a current draft of the paper on SSRN. Here is the abstract:

Judicial review of federal agency action is systematically deferential. Such deference is arguably at its peak where agencies address scientific and highly technical matters within their area of expertise. This is what some call “super deference.” While there may be strong arguments for deferential review of agency scientific determinations as a general matter, there are reasons to question such deference when agency action implicates constitutional matters. In particular, where agency actions trigger heightened scrutiny, such as occurs when agency actions intrude upon expressly enumerated or otherwise recognized fundamental rights or adopt constitutionally suspect classifications, courts should not apply traditional levels of deference. This Article explains why the application of so-called “super deference” is inappropriate where federal agency action triggers heightened scrutiny, considers some of the potential implications of such a rule.

I am still tweaking a few parts, and I am still thinking about the implications of my argument for legislative findings (among other things), so substantive comments are welcome.

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One of the most extraordinary moments in American constitutional history occurred on December 4, 1865. On this, the opening day of the Thirty-Ninth Congress, congressional Republicans made the extraordinary decision to refuse admission to representatives from the former Confederate States. The bewildered southern representatives were left standing in the aisles, their pleas to be recognized by the Chair ignored. Republicans instead proceeded to create the Joint Committee on Reconstruction and tasked it with determining the constitutional changes that had to be made before the Union could safely allow the return of the former rebel States.

Thus began a constitutional drama that would not be complete until after the passage of two more constitutional amendments. The Fourteenth Amendment would solve the problem of southern state representation created by the ratification of the Thirteenth Amendment and define the scope of post-bellum constitutional liberty. The Fifteenth Amendment would prohibit states from denying the right to vote on the basis of race.

At no point was it certain that either amendment would be passed, much less be ratified. The effort to pass the Fourteenth Amendment almost failed, and its ratification triggered a second civil war (one between Republicans and Democrats). It took the impeachment of an American President and the enforcement of the Reconstruction Acts before ratification was assured. Passing Fifteenth Amendment almost failed due to procedural chaos between the two houses of Congress, and securing its ratification involved kicking a readmitted state out of the Union.

The newly published collection of original historical documents, The Reconstruction Amendments: Essential Documents, Volume Two presents the historical record of this remarkable, and remarkably public, constitutional event. The documents include the key congressional speeches and debates, state ratification debates and reports, newspaper essays, campaign speeches and documents, and efforts by women’s suffrage advocates and black civil rights organizations to shape the scope and content of constitutional reconstruction.

Unlike the secret Philadelphia Constitutional Convention debates of 1787, the debates over the framing of the Fourteenth and Fifteenth Amendments were open to the public. Newspapers published transcripts of the speeches and debates on a daily basis and politicians circulated their speeches in pamphlet form as campaign documents. In short, members of the public could follow the arguments supporting or opposing proposed amendments, arguments that included lengthy debates over the scope of the Thirteenth Amendment, the privileges and immunities of national citizenship, the natural rights of all persons and the nature and limits of federal power.

Nor was the public reduced to mere spectator. Women’s suffrage groups, for example, continually pressed Congress to enact universal suffrage. When Robert Dale Owen sent Thaddeus Stevens his suggested draft of a five-sectioned Fourteenth Amendment, newspapers reported the draft before Stevens introduced the draft to the Joint Committee (“News of the Proposed Amendments in the Joint Committee,” Chicago Tribune, April 16, 1866).

Volume Two also presents a number of previously unpublished documents containing the Fourteenth Amendment ratification debates. Long assumed to be either non-existent or no more than fragmentary, Volume Two contains discussions of the proposed amendment in gubernatorial addresses, committee reports, and state legislative debates (including Pennsylvania’s lengthy ratification debates). Ratification documents also include public commentary on the proposed amendment by Frederick Douglass, Wendell Phillips, southern loyalists, Susan B. Anthony, Elizabeth Cady Stanton, S.S. Nicholas, anonymous essayists (the “Madison” essays), northern and southern newspaper editorialists, and much more.

Documented alongside these ratification debates are a number of critical events that had an impact on ratification: The 1866 New Orleans riots, the 1866 congressional election (numerous campaign speeches spoke about meaning of proposed Fourteenth Amendment), the impeachment of President Andrew Johnson, and the passage of the 1867 Reconstruction Acts. One of the most sublime documents in this section is the notice of ratification by the majority black legislative assembly of South Carolina, the state that started the Civil War.

The second half of Volume Two focuses on the framing and ratification of the Fifteenth Amendment. The question of black suffrage had been part of constitutional reconstruction debates even before the ratification of the Thirteenth Amendment. Now, sensing that the window for constitutional change was closing, Republicans in the final days of the Fortieth Congress rushed to pass a proposed suffrage amendment and send it to the states before the end of the current state legislative session.

The result was procedural chaos, with competing drafts sent back and forth between the houses of Congress. Within this chaos, however, are extraordinary speeches on the meaning of American citizenship, the nature of constitutional federalism, the scope of Fourteenth Amendment enforcement power, and the perceived limits of public support for universal suffrage.

Although a number of reconstructed southern legislatures quickly ratified the amendment, northern opposition emerged in the form of Democrat-controlled state legislatures and, most startlingly, from women’s rights advocates like Susan B. Anthony and Elizabeth Cady Stanton. In language increasingly racist in tone and content, Stanton and Anthony called for the defeat of the Fifteenth Amendment (see Stanton’s “All Wise Women Should Oppose the Fifteenth Amendment”). At the 1869 Equal Rights Association, with Frederick Douglass seated on the same stage, Stanton announced that she “did not believe in allowing ignorant negroes and ignorant and debased Chinamen to make laws for her to obey.”

In fact, significant pockets of opposition to black suffrage remained both north and south. Ohio ratified the Amendment by a single vote. New York ratified, but then rescinded its ratification. When the newly readmitted state of Georgia refused to seat newly elected black state representatives, Congress expelled the state of Georgia and demanded the ratification of the Fifteenth Amendment as the price of re-readmission. Similar “Requirement Bills” were passed for the readmission of Virginia, Mississippi and Texas.

Finally, on March 30, 1870, President Grant announced the ratification of the Fifteenth Amendment, “a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day.” Frederick Douglass, in a message to a group celebrating the passage of the Fifteenth Amendment, wrote, “[h]enceforth, we live in a new world, breath a new atmosphere, and have a new earth beneath and a new sky above us.”

Tomorrow: Using the Collection for Research and Teaching a Course on the Reconstruction Amendments

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This Thursday, Earth Day, politicians and activists will shout more about “the climate crisis.”

I don’t think it’s a crisis. COVID-19, malaria, exploding debt, millions of poor children dying from diarrhea—those are genuine crises.

But global warming may become a real problem, so it’s particularly absurd that Earth Day’s activists rarely mention the form of energy that could most quickly reduce greenhouse gases: nuclear power.

When France converted to nuclear, it created the world’s fastest reduction in carbon emissions.

But in America, nuclear growth came to a near halt 40 years ago, after an accident at the Three Mile Island plant in Pennsylvania.

The partial meltdown killed no one. It would probably have been forgotten had Hollywood not released a nuclear scare movie, The China Syndrome, days before.

“People saw that and freaked out,” complains Joshua Goldstein, author of A Bright Future: How Some Countries Have Solved Climate Change (with nuclear power).

One of the people still freaking out is solar activist Harvey Wasserman. “I live in terror of the next accident,” he says in my latest video.

His anti-nuclear argument has basically won in most of the world. Nuclear plants are being shut down.

“Why?” I ask Wasserman. No one was hurt at Three Mile Island.

Wasserman replies that after the accident, he went to nearby homes and people showed him “their tumors, their hair loss, their lesions.”

“It’s bunk,” I tell him. “It’s been studied. People lose hair and get cancer and they attribute it to Three Mile Island, but it’s not true.”

“Having been there,” Wasserman responds, “it’s my clear assertion that people were killed.”

Actual scientists don’t agree. In fact, they find less cancer near Three Mile Island than in other parts of Pennsylvania.

But what about Fukushima? That was more serious. Today, clueless media quote Greenpeace claiming Fukushima’s radiation could “change our DNA!”

Also bunk. “There was heightened radiation, but it was all at this low level below what we consider to be safe,” explains Goldstein.

The low level of radiation released at Fukushima was hardly a threat. What killed people was the panicked response.

“Everyone freaked out and ordered a massive sudden evacuation. That caused suicide, depression….Fear of radioactivity really did kill people.”

One nuclear accident, Chernobyl, did kill, and its radiation may still kill thousands more.

But Chernobyl was built by socialists cutting corners to please dictators. No Chernobyl-like plant will ever be built again. And even with Chernobyl’s deaths, nuclear power’s safety record is better than that of coal, oil, and natural gas.

“But what about the nuclear waste!” shout the activists.

“It’s a small problem,” says Goldstein. “All the nuclear waste from all America’s reactors for 60 years would fit into a Walmart.”

While the anti-nuclear movement has stopped nuclear construction in most of the West, “other places are building them like crazy,” says Goldstein. “China puts a nuclear reactor on the grid every two to three months.”

America may soon finish…one. It took Georgia Power Company six years just to get permission to build a plant. Regulation is so heavy that, 15 years later, it still isn’t operating.

Wasserman is proud he played a role in that. “If you want to accuse us of having raised the cost of building new nuclear plants by demanding more regulation, I plead guilty.”

He claims countries can power themselves with rooftop solar panels and wind.  Technology improvements did lower their prices, but what happens when the wind doesn’t blow? Or the sun doesn’t shine?

Store energy in batteries! replies Wasserman. “We are having a major technological and industrial revolution in battery capacity.”

Goldstein scoffs in response, “The idea that a miracle battery is going to come along and save us is completely untested.”

By contrast, nuclear energy has been tested. It could reduce greenhouse gases, and provide reliable energy, if only we didn’t fear it so much.

“The whole regulatory system is crazy,” Goldstein concludes. “We’re regulating this energy source as though it were the most dangerous thing out there, and it’s actually the safest thing!”

COPYRIGHT 2021 BY JFS PRODUCTIONS INC.

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