Category: reason

The Confusion Surrounding Brian Sicknick’s Death Was a Failure of Government Transparency


Capitol

The Washington Post reported Monday, more than three months after the death of U.S. Capitol Police Officer Brian Sicknick following the January 6 Capitol riots, that Sicknick died of natural causes and did not have any external or internal injuries.

The findings of D.C.’s chief medical examiner end months of speculation surrounding Sicknick’s death, and have led to questions about how the media could botch, yet again, such an important story.

For those who earn their bread complaining about the perfidy of the press, like Glenn Greenwald, this is just another instance of the hopelessly corrupt liberal media spinning a story to conform to its preferred narrative.

“This is what is so repulsive is they completely exploited this person, this young police officer, who they obviously didn’t care anything about,” Greenwald told Fox News host Tucker Carlson last night. “They saw him as a toy to exploit his death for purely political ends in ways that we now know were a complete and utter lie.”

That’s not the whole picture, though, or even a mildly accurate one. The medical examiner noted that “all that transpired played a role in [Sicknick’s] condition.”

In fact, the past few months are just as much a government transparency failure as a media failure. And placing the blame squarely on the media ignores law enforcement’s long history of laundering misinformation when it suits its purposes.

It’s not that reporters don’t want the information. Fourteen news organizations are currently suing to unseal camera footage showing alleged assaults on Sicknick, which was played in the trial of one of the January 6 defendants. 

Because the Capitol Police are under the legislative branch, the department is exempt from the federal Freedom of Information Act. You can’t put in a public records request for an incident report or the other sort of records that most every other police department in the U.S. is required by law to disclose when asked.

Likewise, autopsy reports are confidential in the District of Columbia. In some other states, these medical examiner reports are invaluable tools for journalists to report and fact-check police narratives. News outlets and press freedom groups, for instance, went to court to force the disclosure of autopsy reports from the 2017 mass shooting in Las Vegas.

With the Capitol Police conspicuously mum after putting out an initial statement that Sicknick died “due to injuries sustained while on-duty,” and with limited access to primary records, the public was left with yammering pundits, anonymously sourced stories that were impossible to confirm, and misinformation from the highest levels of government.

On January 8, the Associated Press reported: “During the struggle at the Capitol, Sicknick, 42, was hit in the head with a fire extinguisher, two law enforcement officials said. The officials could not discuss the ongoing investigation publicly and spoke to The Associated Press on condition of anonymity.”

That same day, the Justice Department released a statement from acting Attorney General Jeffrey Rosen that said Sicknick “succumbed last night to the injuries he suffered defending the U.S. Capitol, against the violent mob who stormed it on January 6th.” (The Justice Department did not immediately respond to a request for comment on why this erroneous information was released to the public.)

And here’s how The New York Times reported on the confusion on January 15: “Law enforcement officials initially said Mr. Sicknick was struck with a fire extinguisher, but weeks later, police sources and investigators were at odds over whether he was hit. Medical experts have said he did not die of blunt force trauma, according to one law enforcement official.”

In a vacuum of primary sources, bullshit will prevail. If you want faster, more accurate reporting, demand better public record laws and more transparency from officials.

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The Confusion Surrounding Brian Sicknick’s Death Was a Failure of Government Transparency


Capitol

The Washington Post reported Monday, more than three months after the death of U.S. Capitol Police Officer Brian Sicknick following the January 6 Capitol riots, that Sicknick died of natural causes and did not have any external or internal injuries.

The findings of D.C.’s chief medical examiner end months of speculation surrounding Sicknick’s death, and have led to questions about how the media could botch, yet again, such an important story.

For those who earn their bread complaining about the perfidy of the press, like Glenn Greenwald, this is just another instance of the hopelessly corrupt liberal media spinning a story to conform to its preferred narrative.

“This is what is so repulsive is they completely exploited this person, this young police officer, who they obviously didn’t care anything about,” Greenwald told Fox News host Tucker Carlson last night. “They saw him as a toy to exploit his death for purely political ends in ways that we now know were a complete and utter lie.”

That’s not the whole picture, though, or even a mildly accurate one. The medical examiner noted that “all that transpired played a role in [Sicknick’s] condition.”

In fact, the past few months are just as much a government transparency failure as a media failure. And placing the blame squarely on the media ignores law enforcement’s long history of laundering misinformation when it suits its purposes.

It’s not that reporters don’t want the information. Fourteen news organizations are currently suing to unseal camera footage showing alleged assaults on Sicknick, which was played in the trial of one of the January 6 defendants. 

Because the Capitol Police are under the legislative branch, the department is exempt from the federal Freedom of Information Act. You can’t put in a public records request for an incident report or the other sort of records that most every other police department in the U.S. is required by law to disclose when asked.

Likewise, autopsy reports are confidential in the District of Columbia. In some other states, these medical examiner reports are invaluable tools for journalists to report and fact-check police narratives. News outlets and press freedom groups, for instance, went to court to force the disclosure of autopsy reports from the 2017 mass shooting in Las Vegas.

With the Capitol Police conspicuously mum after putting out an initial statement that Sicknick died “due to injuries sustained while on-duty,” and with limited access to primary records, the public was left with yammering pundits, anonymously sourced stories that were impossible to confirm, and misinformation from the highest levels of government.

On January 8, the Associated Press reported: “During the struggle at the Capitol, Sicknick, 42, was hit in the head with a fire extinguisher, two law enforcement officials said. The officials could not discuss the ongoing investigation publicly and spoke to The Associated Press on condition of anonymity.”

That same day, the Justice Department released a statement from acting Attorney General Jeffrey Rosen that said Sicknick “succumbed last night to the injuries he suffered defending the U.S. Capitol, against the violent mob who stormed it on January 6th.” (The Justice Department did not immediately respond to a request for comment on why this erroneous information was released to the public.)

And here’s how The New York Times reported on the confusion on January 15: “Law enforcement officials initially said Mr. Sicknick was struck with a fire extinguisher, but weeks later, police sources and investigators were at odds over whether he was hit. Medical experts have said he did not die of blunt force trauma, according to one law enforcement official.”

In a vacuum of primary sources, bullshit will prevail. If you want faster, more accurate reporting, demand better public record laws and more transparency from officials.

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NYT: Tech Crackdowns Are Only Bad When Other Countries Do Them


4314

When they do it, it’s suppressing civil liberties. When we do it, it’s safeguarding democracy. That’s the stance developing around regulation of tech companies and, by extension, online speech.

This attitude abounds in today’s elite media and political spheres—alongside a bizarre reverence for the fact that more authoritarian leaders are regulating tech entities in ways that U.S. officials can’t (or at least not yet). Today’s New York Times piece on “reining in tech” is truly a masterpiece of the genre.

“Around the world, governments are moving simultaneously to limit the power of tech companies with an urgency and breadth that no single industry had experienced before,” notes the Times. University of Michigan law professor Daniel Crane told the paper that it’s “unprecedented to see this kind of parallel struggle globally.”

Shouldn’t it give us pause when we’re engaging in the same regulatory crackdowns as these not-so-freedom-friendly regimes? How can any American earnestly suggest that we follow Communist China’s lead on these matters? How can anyone claim with a straight face that the identical activity is a boon for democracy when the U.S. does it but is an authoritarian outrage when other nations do the same?

They accomplish this intellectual contortion by invoking the magic of good intentions, of course. Here’s how the Times follows up its statement about global attempts to “rein in” technology companies:

Their motivation varies. In the United States and Europe, it is concern that tech companies are stifling competition, spreading misinformation and eroding privacy; in Russia and elsewhere, it is to silence protest movements and tighten political control; in China, it is some of both.

It’s the kind of statement that would be hilarious if it wasn’t so terrifying to realize that some people actually think like this.

Alas, far too many people in this country seem to believe that their preferred political leaders only want what’s best for America and would never—never!—abuse their authority. They apparently think that their respective political team is above the corruption, censorship, cowardice, and petty power-grubbing that leads so many others to “silence protest movements and tighten political control.”

Sheesh, we’re only a few months out from a president that a lot of people swore was a literal fascist. And even Donald Trump’s biggest fans might be willing to concede that he was not always the most scrupulous civil libertarian. Are people really so naive as to think we’ll never have another Trump-like figure in power who might use new anti-tech regulations to settle personal scores?

And to be clear, this problem is much bigger than Trump. Let’s face it: Cutting corners with civil liberties is a bipartisan American tradition.

Look at the bipartisan enthusiasm for FOSTA, the 2018 law working to silence sexual expression online. Look at the Obama-era Operation Chokepoint, which used federal rules to pressure financial institutions into reconsidering business with an array of disfavored industries. Look at the years of warrantless spying on domestic communications by the National Security Administration. Or look at the 18 years of misinformation the feds spread about Afghanistan. Or look at more recent attempts to cover up accurate pandemic-related information…

You get the point. Do these really seem like people and institutions that never let good intentions go awry? Why should we trust any of them to fairly arbitrate online truths? Or decide which communications tools should be allowed? Or determine what is and isn’t good for individual privacy, freedom of expression, and rights?

Yet so many folks today on both the left and right want to hand over greater power to the same federal officials, agencies, and snoops that have disgraced themselves in the past.

Why? They say that companies like Facebook, Amazon, Apple, Google, and Twitter are too big—too big to be bullied by folks like Josh Hawley into disallowing politically disfavored content; too big not to backtalk Elizabeth Warren or cower in front of Congressional committees; too big not to simply turn over whatever encrypted communications the FBI wants, or ban sex-worker ads because Kamala Harris says so.

Certainly, some tech companies do have “big power” over speech on their particular platforms. But users who find themselves on the receiving end of a suppression or ban—or who just don’t like a platform’s policies—always have the ability to move on to other digital entities. Even someone who manages to run afoul of the rules on all of the biggest platforms can still start new accounts, find a new home on more sympathetic social media spheres, and/or communicate through their own emails, message apps, and websites.

By contrast, when the government sets the rules for online communication—or effectively does so, by threatening digital actors with huge penalties for failing to enforce their preferred standards or failing to comply with regulatory requirements—then those who run afoul of them aren’t simply barred from speaking on this or that platform; they are prevented from speaking freely anywhere online. And the government’s penalty may be way more severe than simply losing one’s account.

Tech companies can’t lobby fines against their users and they can’t initiate criminal charges. They don’t have the right to say how outside platforms moderate speech, or with whom other companies may do business. They can’t stop competitors from developing new products that compete with their own. They can’t declare that anything competitors do to make their products better and prices cheaper is a violation of antitrust law.

Tech companies may be able to block access to an article or video within their own space, but they can’t say anyone who posts it is inciting terrorism, committing a hate crime, violating obscenity statutes, or committing some other illegal act.

In short, it makes no sense to respond to the perceived failings of Big Tech by further concentrating control in the hands of the government, which is an even more powerful actor than any company.

The proper solution is to use liberal values—freedom of speech, contract, and association—to either disengage with the tech giants, pressure them to change, or to support new platforms to take their place. To use our individual rights and free markets, not to call for curtailing of those things. Because these are what truly set us apart from countries like China and Russia—not some imagined purity and beneficence on the part of American politicians.

American history—and present—is brimming with examples of political deception, corruption, and suppression of dissent. Giving government the power to “rein in big tech” will only make online services, censorship, and privacy so much worse—which politicians will then use as an excuse to grab even more control, as they have in previous wars on drugs, crime, and terrorism.

Is it too much to ask that, this time, we start questioning our government’s “good intentions” before it is too late?

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NYT: Tech Crackdowns Are Only Bad When Other Countries Do Them


4314

When they do it, it’s suppressing civil liberties. When we do it, it’s safeguarding democracy. That’s the stance developing around regulation of tech companies and, by extension, online speech.

This attitude abounds in today’s elite media and political spheres—alongside a bizarre reverence for the fact that more authoritarian leaders are regulating tech entities in ways that U.S. officials can’t (or at least not yet). Today’s New York Times piece on “reining in tech” is truly a masterpiece of the genre.

“Around the world, governments are moving simultaneously to limit the power of tech companies with an urgency and breadth that no single industry had experienced before,” notes the Times. University of Michigan law professor Daniel Crane told the paper that it’s “unprecedented to see this kind of parallel struggle globally.”

Shouldn’t it give us pause when we’re engaging in the same regulatory crackdowns as these not-so-freedom-friendly regimes? How can any American earnestly suggest that we follow Communist China’s lead on these matters? How can anyone claim with a straight face that the identical activity is a boon for democracy when the U.S. does it but is an authoritarian outrage when other nations do the same?

They accomplish this intellectual contortion by invoking the magic of good intentions, of course. Here’s how the Times follows up its statement about global attempts to “rein in” technology companies:

Their motivation varies. In the United States and Europe, it is concern that tech companies are stifling competition, spreading misinformation and eroding privacy; in Russia and elsewhere, it is to silence protest movements and tighten political control; in China, it is some of both.

It’s the kind of statement that would be hilarious if it wasn’t so terrifying to realize that some people actually think like this.

Alas, far too many people in this country seem to believe that their preferred political leaders only want what’s best for America and would never—never!—abuse their authority. They apparently think that their respective political team is above the corruption, censorship, cowardice, and petty power-grubbing that leads so many others to “silence protest movements and tighten political control.”

Sheesh, we’re only a few months out from a president that a lot of people swore was a literal fascist. And even Donald Trump’s biggest fans might be willing to concede that he was not always the most scrupulous civil libertarian. Are people really so naive as to think we’ll never have another Trump-like figure in power who might use new anti-tech regulations to settle personal scores?

And to be clear, this problem is much bigger than Trump. Let’s face it: Cutting corners with civil liberties is a bipartisan American tradition.

Look at the bipartisan enthusiasm for FOSTA, the 2018 law working to silence sexual expression online. Look at the Obama-era Operation Chokepoint, which used federal rules to pressure financial institutions into reconsidering business with an array of disfavored industries. Look at the years of warrantless spying on domestic communications by the National Security Administration. Or look at the 18 years of misinformation the feds spread about Afghanistan. Or look at more recent attempts to cover up accurate pandemic-related information…

You get the point. Do these really seem like people and institutions that never let good intentions go awry? Why should we trust any of them to fairly arbitrate online truths? Or decide which communications tools should be allowed? Or determine what is and isn’t good for individual privacy, freedom of expression, and rights?

Yet so many folks today on both the left and right want to hand over greater power to the same federal officials, agencies, and snoops that have disgraced themselves in the past.

Why? They say that companies like Facebook, Amazon, Apple, Google, and Twitter are too big—too big to be bullied by folks like Josh Hawley into disallowing politically disfavored content; too big not to backtalk Elizabeth Warren or cower in front of Congressional committees; too big not to simply turn over whatever encrypted communications the FBI wants, or ban sex-worker ads because Kamala Harris says so.

Certainly, some tech companies do have “big power” over speech on their particular platforms. But users who find themselves on the receiving end of a suppression or ban—or who just don’t like a platform’s policies—always have the ability to move on to other digital entities. Even someone who manages to run afoul of the rules on all of the biggest platforms can still start new accounts, find a new home on more sympathetic social media spheres, and/or communicate through their own emails, message apps, and websites.

By contrast, when the government sets the rules for online communication—or effectively does so, by threatening digital actors with huge penalties for failing to enforce their preferred standards or failing to comply with regulatory requirements—then those who run afoul of them aren’t simply barred from speaking on this or that platform; they are prevented from speaking freely anywhere online. And the government’s penalty may be way more severe than simply losing one’s account.

Tech companies can’t lobby fines against their users and they can’t initiate criminal charges. They don’t have the right to say how outside platforms moderate speech, or with whom other companies may do business. They can’t stop competitors from developing new products that compete with their own. They can’t declare that anything competitors do to make their products better and prices cheaper is a violation of antitrust law.

Tech companies may be able to block access to an article or video within their own space, but they can’t say anyone who posts it is inciting terrorism, committing a hate crime, violating obscenity statutes, or committing some other illegal act.

In short, it makes no sense to respond to the perceived failings of Big Tech by further concentrating control in the hands of the government, which is an even more powerful actor than any company.

The proper solution is to use liberal values—freedom of speech, contract, and association—to either disengage with the tech giants, pressure them to change, or to support new platforms to take their place. To use our individual rights and free markets, not to call for curtailing of those things. Because these are what truly set us apart from countries like China and Russia—not some imagined purity and beneficence on the part of American politicians.

American history—and present—is brimming with examples of political deception, corruption, and suppression of dissent. Giving government the power to “rein in big tech” will only make online services, censorship, and privacy so much worse—which politicians will then use as an excuse to grab even more control, as they have in previous wars on drugs, crime, and terrorism.

Is it too much to ask that, this time, we start questioning our government’s “good intentions” before it is too late?

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The FDA’s War on Nicotine Will Encourage Americans To Smoke More Cigarettes


dreamstime_xl_84648495

In a misguided attempt to get Americans to stop smoking, the Food and Drug Administration (FDA) is reportedly considering new regulations that would likely force smokers to light up more cigarettes in order to get their hit of nicotine.

The Biden administration is considering requiring cigarette manufacturers to decrease the amount of nicotine in cigarettes as part of a series of new rules that could be rolled out in the coming months, The Wall Street Journal reports. Ostensibly, this is meant to make cigarettes less addictive, thus reducing the number of people who become addicted to them in the first place in the future.

Of course, that ignores the massive consequences that the proposed rules could have for the health and finances of anyone currently nursing a nicotine addiction. The FDA would be effectively telling smokers that they have to buy many more cigarettes—and inhale much more cancer-causing tar—to get their fix. (Maybe that would be enough to make some smokers switch to vaping, if only the FDA wasn’t determined to make that alternative as expensive and unattractive as possible too.)

“Cutting the nicotine yield might have the unintended consequence of smokers taking more puffs, inhaling more deeply, and holding the smoke in longer,” writes Jeffrey Singer, an Arizona-based physician and senior fellow at the Cato Institute. “While nicotine is addictive, the tars in tobacco smoke are what do all of the damage to health. Reducing nicotine content might paradoxically make smoking more dangerous.” (Disclosure: Singer is a financial supporter of Reason Foundation, the nonprofit that publishes this website.)

The FDA hasn’t even finished cleaning the blood off its hands from the botched response to the COVID-19 pandemic, and the inept public health bureaucracy is already plotting new ways to kill Americans.

The FDA says that implementing the low-nicotine requirement would cause about 5 million Americans to quit smoking. But there are roughly 34 million smokers in America right now. What, exactly, does the FDA expect the rest of them to do?

Like in other situations where an addictive substance has been effectively outlawed, some of the consequences are easy to conceive. Consider what would happen if the government mandated that the alcohol content of legally sold drinks could not exceed 1 percent, says Guy Bentley, the director of consumer freedom research at Reason Foundation.

“Some drinkers would likely quit liquor altogether or switch to an alternative alcoholic beverage,” Bentley notes. “But it would be naive to assume that a large portion of them wouldn’t seek out their favored booze through illegal channels.”

In fact, there’s a convenient real-world example of exactly how this would play out. I mean, an example in addition to America’s own experience with alcohol Prohibition and the failed (and finally, maybe, coming to an end) War on Drugs.

In 2004, the tiny nation of Bhutan banned the sale and consumption of tobacco products. The ban triggered the creation of a robust black market for cigarettes, and by 2017 Bhutan had the highest smoking rate of any country in Asia.

For that matter, the FDA could just look at places like New York City, where cigarettes are still legal but astronomical taxes on tobacco products have stimulated a significant black market for “loosies.” Enforcing what would effectively be a national ban on cigarettes containing more than a trace amount of nicotine would require treating otherwise law-abiding Americans like criminals—and it would lead to more tragic outcomes like the 2014 killing of Eric Garner, who was suffocated to death by a New York City cop after being caught with untaxed cigarettes.

It’s tempting to view this whole proposed mess as another example of the Biden administration’s propensity to expand regulatory control over Americans’ lives even in circumstances where the benefits of such regulations are difficult to identify—or wholly nonexistent.

But the idea of limiting the amount of nicotine in cigarettes actually originated, the Journal notes, during the tenure of Scott Gottlieb, the first FDA commissioner of the Trump administration. It seems that changing the occupant of the White House won’t stop the FDA from pursuing counterproductive, nanny state policies. Maybe we should just abolish the FDA instead.

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The FDA’s War on Nicotine Will Encourage Americans To Smoke More Cigarettes


dreamstime_xl_84648495

In a misguided attempt to get Americans to stop smoking, the Food and Drug Administration (FDA) is reportedly considering new regulations that would likely force smokers to light up more cigarettes in order to get their hit of nicotine.

The Biden administration is considering requiring cigarette manufacturers to decrease the amount of nicotine in cigarettes as part of a series of new rules that could be rolled out in the coming months, The Wall Street Journal reports. Ostensibly, this is meant to make cigarettes less addictive, thus reducing the number of people who become addicted to them in the first place in the future.

Of course, that ignores the massive consequences that the proposed rules could have for the health and finances of anyone currently nursing a nicotine addiction. The FDA would be effectively telling smokers that they have to buy many more cigarettes—and inhale much more cancer-causing tar—to get their fix. (Maybe that would be enough to make some smokers switch to vaping, if only the FDA wasn’t determined to make that alternative as expensive and unattractive as possible too.)

“Cutting the nicotine yield might have the unintended consequence of smokers taking more puffs, inhaling more deeply, and holding the smoke in longer,” writes Jeffrey Singer, an Arizona-based physician and senior fellow at the Cato Institute. “While nicotine is addictive, the tars in tobacco smoke are what do all of the damage to health. Reducing nicotine content might paradoxically make smoking more dangerous.” (Disclosure: Singer is a financial supporter of Reason Foundation, the nonprofit that publishes this website.)

The FDA hasn’t even finished cleaning the blood off its hands from the botched response to the COVID-19 pandemic, and the inept public health bureaucracy is already plotting new ways to kill Americans.

The FDA says that implementing the low-nicotine requirement would cause about 5 million Americans to quit smoking. But there are roughly 34 million smokers in America right now. What, exactly, does the FDA expect the rest of them to do?

Like in other situations where an addictive substance has been effectively outlawed, some of the consequences are easy to conceive. Consider what would happen if the government mandated that the alcohol content of legally sold drinks could not exceed 1 percent, says Guy Bentley, the director of consumer freedom research at Reason Foundation.

“Some drinkers would likely quit liquor altogether or switch to an alternative alcoholic beverage,” Bentley notes. “But it would be naive to assume that a large portion of them wouldn’t seek out their favored booze through illegal channels.”

In fact, there’s a convenient real-world example of exactly how this would play out. I mean, an example in addition to America’s own experience with alcohol Prohibition and the failed (and finally, maybe, coming to an end) War on Drugs.

In 2004, the tiny nation of Bhutan banned the sale and consumption of tobacco products. The ban triggered the creation of a robust black market for cigarettes, and by 2017 Bhutan had the highest smoking rate of any country in Asia.

For that matter, the FDA could just look at places like New York City, where cigarettes are still legal but astronomical taxes on tobacco products have stimulated a significant black market for “loosies.” Enforcing what would effectively be a national ban on cigarettes containing more than a trace amount of nicotine would require treating otherwise law-abiding Americans like criminals—and it would lead to more tragic outcomes like the 2014 killing of Eric Garner, who was suffocated to death by a New York City cop after being caught with untaxed cigarettes.

It’s tempting to view this whole proposed mess as another example of the Biden administration’s propensity to expand regulatory control over Americans’ lives even in circumstances where the benefits of such regulations are difficult to identify—or wholly nonexistent.

But the idea of limiting the amount of nicotine in cigarettes actually originated, the Journal notes, during the tenure of Scott Gottlieb, the first FDA commissioner of the Trump administration. It seems that changing the occupant of the White House won’t stop the FDA from pursuing counterproductive, nanny state policies. Maybe we should just abolish the FDA instead.

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Blue States Reopen Their Economies but Double Down on Mask Mandates


reason-mask

A growing number of Democratic governors have set end dates for their states’ coronavirus business restrictions. At the same time, they’re promising to keep mask mandates on the books for the foreseeable future.

On Monday, Connecticut Gov. Nathan Lamont (D) said that come May, bars that don’t serve food will be allowed to reopen for outdoor service, an 8-person per table limit on diners will be lifted, and the state’s 11 p.m. curfew will be extended to midnight.

Provided that cases stay low and vaccinations continue apace, the governor added, all remaining business restrictions will be lifted by May 19.

That’s good news for the state’s hospitality industry, which cheered the announcement. But it doesn’t represent a full return to the pre-pandemic normal. Lamont made clear that the state’s mask mandate would be extended beyond May 19.

“I think we’re going to mandate that you continue to wear the mask in school… probably we’re going to require indoor masking a little longer, until you’re vaccinated,” the governor said, according to the Hartford Courant. The state’s existing mask mandate, the Courant reported, is supposed to expire on May 20, along with Lamont’s emergency pandemic powers.

It’s a similar story in California.

Earlier this month, Gov. Gavin Newsom (D) announced that so long as COVID-19 hospitalizations remain low and stable, and vaccine supply is sufficient to meet demand, the governor’s tiered scheme of business restrictions would be revoked, and the whole state would be allowed to reopen.

Newsom, too, made a point of pairing his reopening announcement with a plea to continue mask wearing for the time being.

“We will need to remain vigilant, and continue the practices that got us here—wearing masks and getting vaccinated—but the light at the end of this tunnel has never been brighter,” he said in a press release.

The Los Angeles Times reported that Newsom’s announcement did not affect the state’s mask mandate. The California Department of Public Health has since said that no changes will be made to the state’s mask mandate until at least June 15.

In Oregon, where business restrictions are still very much in place, state regulators are actually moving to keep an existing, soon-to-expire mask mandate on the books with no expiration date in sight.

Come May 4, a temporary masking requirement issued by the Oregon Occupational Safety and Health Administration (Oregon OSHA) will expire. That rule requires employers to ensure all individuals in the workplace—including employees, customers, clients, and vendors—wear face coverings.

In February, the agency started soliciting comments on a proposed rule that would extend a number of workplace safety regulations, including the mask mandate.

Oregon OSHA Administrator Michael Wood told the Associated Press this week that while the mask mandate will be repealed eventually, “it might not need to go away at exactly the same time the [governor’s] State of Emergency is lifted.”

The proposal to make this mask mandate open-ended has sparked a major backlash, reported the Associated Press, with many people expressing concern that the rule comes with no set expiration date or specific conditions for when it would be repealed.

Bureaucrats in Michigan, as Reason reported last week, have likewise moved to make a number of emergency pandemic regulations open-ended, including the state’s mask mandate.

Last Friday, Colorado Gov. Jared Polis (D) ended the state’s “dial” system of business restrictions, turning the power of pandemic regulation over to local governments. A comprehensive state mask mandate—requiring everyone to wear face coverings when in indoor public spaces—has also been retracted.

However, the governor has kept in place a statewide requirement that people wear masks when in schools, childcare facilities, hospitals, government buildings, and personal service businesses like nail salons.

If these states are any guide, mask mandates will likely be the last pandemic policy to go in many Blue states. This perhaps shouldn’t be surprising.

Whereas business owners have every interest in pushing for the repeal of costly restrictions on their operations, individual citizens are going to be less organized and less invested in ditching the requirement that they cover their faces in public.

But the sticking power of a mask mandate does not make the policy necessary or wise. The case for face coverings in public evaporates as the population becomes vaccinated.

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Blue States Reopen Their Economies but Double Down on Mask Mandates


reason-mask

A growing number of Democratic governors have set end dates for their states’ coronavirus business restrictions. At the same time, they’re promising to keep mask mandates on the books for the foreseeable future.

On Monday, Connecticut Gov. Nathan Lamont (D) said that come May, bars that don’t serve food will be allowed to reopen for outdoor service, an 8-person per table limit on diners will be lifted, and the state’s 11 p.m. curfew will be extended to midnight.

Provided that cases stay low and vaccinations continue apace, the governor added, all remaining business restrictions will be lifted by May 19.

That’s good news for the state’s hospitality industry, which cheered the announcement. But it doesn’t represent a full return to the pre-pandemic normal. Lamont made clear that the state’s mask mandate would be extended beyond May 19.

“I think we’re going to mandate that you continue to wear the mask in school… probably we’re going to require indoor masking a little longer, until you’re vaccinated,” the governor said, according to the Hartford Courant. The state’s existing mask mandate, the Courant reported, is supposed to expire on May 20, along with Lamont’s emergency pandemic powers.

It’s a similar story in California.

Earlier this month, Gov. Gavin Newsom (D) announced that so long as COVID-19 hospitalizations remain low and stable, and vaccine supply is sufficient to meet demand, the governor’s tiered scheme of business restrictions would be revoked, and the whole state would be allowed to reopen.

Newsom, too, made a point of pairing his reopening announcement with a plea to continue mask wearing for the time being.

“We will need to remain vigilant, and continue the practices that got us here—wearing masks and getting vaccinated—but the light at the end of this tunnel has never been brighter,” he said in a press release.

The Los Angeles Times reported that Newsom’s announcement did not affect the state’s mask mandate. The California Department of Public Health has since said that no changes will be made to the state’s mask mandate until at least June 15.

In Oregon, where business restrictions are still very much in place, state regulators are actually moving to keep an existing, soon-to-expire mask mandate on the books with no expiration date in sight.

Come May 4, a temporary masking requirement issued by the Oregon Occupational Safety and Health Administration (Oregon OSHA) will expire. That rule requires employers to ensure all individuals in the workplace—including employees, customers, clients, and vendors—wear face coverings.

In February, the agency started soliciting comments on a proposed rule that would extend a number of workplace safety regulations, including the mask mandate.

Oregon OSHA Administrator Michael Wood told the Associated Press this week that while the mask mandate will be repealed eventually, “it might not need to go away at exactly the same time the [governor’s] State of Emergency is lifted.”

The proposal to make this mask mandate open-ended has sparked a major backlash, reported the Associated Press, with many people expressing concern that the rule comes with no set expiration date or specific conditions for when it would be repealed.

Bureaucrats in Michigan, as Reason reported last week, have likewise moved to make a number of emergency pandemic regulations open-ended, including the state’s mask mandate.

Last Friday, Colorado Gov. Jared Polis (D) ended the state’s “dial” system of business restrictions, turning the power of pandemic regulation over to local governments. A comprehensive state mask mandate—requiring everyone to wear face coverings when in indoor public spaces—has also been retracted.

However, the governor has kept in place a statewide requirement that people wear masks when in schools, childcare facilities, hospitals, government buildings, and personal service businesses like nail salons.

If these states are any guide, mask mandates will likely be the last pandemic policy to go in many Blue states. This perhaps shouldn’t be surprising.

Whereas business owners have every interest in pushing for the repeal of costly restrictions on their operations, individual citizens are going to be less organized and less invested in ditching the requirement that they cover their faces in public.

But the sticking power of a mask mandate does not make the policy necessary or wise. The case for face coverings in public evaporates as the population becomes vaccinated.

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“Retroactive” Liability after Barr v. AAPC

One of the most theoretically important and underappreciated Supreme Court decisions of 2020 was Barr v. AAPC, though it has been discussed repeatedly on this blog. In Barr, a fractured group of Supreme Court Justices concluded that it was unconstitutional for Congress to ban most “robocalls” while privileging those robocalls that try to collect government debt; and that in light of this, the statute should be read to ban all robocalls.

The opinion expressing both of those views was a plurality opinion by Justice Kavanaugh that was not supported by five votes. In addition to questions of free speech and severability, the plurality addressed in a footnote the question of liability for those who had made robocalls to collect government debt in the past:

As the Government acknowledges, although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate. See Reply Brief 24. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.

At the time, I wrote: “This conclusion is perfectly logical, but its legal basis is a bit mysterious to me.” The plurality had purported to agree, in its severability analysis, that courts do not actually have the power to invalidate statutes in the sense of repealing them or changing the law—rather, the “term ‘invalidate’ is a common judicial shorthand” employed when the Court “recognizes that the Constitution is a ‘superior’, paramount law,’ and that ‘a legislative act contrary to the constitution is not law’ at all.” It would seem to follow that whatever the law is after the Supreme Court’s decision in Barr was also the law before the Supreme Court’s decision in Barr.

I will add that I was especially puzzled by the plurality’s expectation that this immunity from enforcement of the robocall prohibition would continue into the future until “the entry of final judgment by the District court on remand” or some other unknown date for unknown reasons.

In any case, in light of all this I was especially interested and please to see a new and excellent opinion on these issues. The opinion is by Judge Stephanos Bibas, who sat by designation on a district court, in a case called Franklin v. Navient. From the beginning:

“[J]udicial decisionmaking” after the fact “necessarily involves some peril to individual expectations.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994). Navient may have to learn that the hard way. It robocalled Ricky Franklin for years to collect on his government-backed student loans. Although many types of robocalls are illegal, a federal law said that Navient’s were exempt. Yet after Navient made the calls, the Supreme Court struck down the government-debt exception. And now Franklin is suing. Navient responds that it should not be liable for calls that were legal at the time.

But the calls were not legal at the time. When a court finds a law unconstitutional, it finds that the law was void since the day it was passed. So the robocalling ban never had a valid exception for government debt. Navient cannot rely on one. And while it reasonably thought it was covered by the exception, that is no defense to paying compensation.

Yet Franklin wants more than compensation; he wants punitive damages. And due process bans punishing parties without fair notice. By (mistakenly) saying that Navient’s calls were allowed, Congress deprived it of fair notice. So if Franklin wins at trial, he may recover damages—but only to compensate him for the injuries he can prove.

And the middle:

Courts cannot change the law; they can only declare what the law has always been. When the Supreme Court severed the government-debt exception from the Act, it ruled that the law never had the exception—despite the law’s text.

So Navient cannot get summary judgment based on the exception’s coverage.
Still, Navient seeks summary judgment for a different reason: even though the exception was void, it was on the books. So the company lacked fair notice that its speech was illegal. Enforcing the Act, it argues, would violate due process and the First Amendment.

Navient is mistaken. In civil cases, courts may apply surprising rulings to past acts. There is no exception for free speech (at least not yet).

So Navient may have to compensate Franklin for its calls, whether before or after 2015.

A. The government-debt exception never took effect

A severance ruling, like any other ruling, says only what the law is and has always been. Thus, the Supreme Court’s decision severing the government-debt exception applies retroactively. That exception was never the law.

1. Judicial decisions apply retroactively.

The Supreme Court has the power to declare law, not make it. The Constitution vests “[a]ll legislative Powers” in Congress. U.S. Const. art. I, § 1. Courts are limited to judging “Cases” and “Controversies.” Art. III, § 2. As Blackstone explained, they are “not delegated to pronounce a new law, but to maintain and expound the old one.” 1 William Blackstone, Commentaries *69. Their only power is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added). So federal courts cannot ” ‘change[ ]’ the law”; they can only, in deciding cases, say what a law “has meant continuously since the date when it became law.” Rivers, 511 U.S. at 313 n.12.

Because Supreme Court decisions clarify what the law “ha[s] always meant,” their rulings apply to all open cases, even those whose facts predate the ruling. Id.; Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 97 (1993). Otherwise, they would be “not … adjudication but in effect … legislation.” Griffith v. Kentucky, 479 U.S. 314, 323 (1987) (quoting Mackey v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring in the judgment)). In short, judicial decisions apply retroactively. Harper, 509 U.S. at 94, 97.

2. Severance rulings apply retroactively.

That rule is equally true of severance decisions. Severance is just ordinary statutory interpretation. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330 (2006). When a court finds a law unconstitutional, it finds that it is “void, and is as no law” from the day it is passed. Ex parte Siebold, 100 U.S. 371, 376 (1879). It never took effect as written. Often, the court must then decide what did take effect. Maybe no law did. But maybe Congress passed the law with a fallback rule. That is a question of statutory interpretation. The severance analysis answers it, telling us what the law has meant from the start.

3. AAPC’s rule applies retroactively.

When Congress amended the Act in 2015, it wanted to allow robocalls to collect government debt but ban other robocalls. In AAPC, the Court held that this combination of aims violates the First Amendment. If it violated the First Amendment in 2020, then it has violated the First Amendment since 2015. So Congress’s ideal version of the Act was void from the start. It never became law.

Instead, some fallback rule kicked in right away. To cure the content discrimination, either the exception was void (so the Act covered all robocalls) or the exception became the rule (so it covered none). The Act has a severability clause. Thus, the AAPC plurality reasoned, Congress had picked the first rule. 140 S. Ct. at 2352.
AAPC addressed only what the Act means going forward. But if the exception was void the day it was passed, and Congress’s fallback rule was to nix it, then it never took effect. As Justice Kavanaugh put it, the exception was ” ‘not law’ at all.” 140 S. Ct. at 2351 n.8 (quoting Marbury, 5 U.S. at 177). If Navient relied on the government-debt exception, it made a mistake. Because the Constitution trumps the Act, the Act never had a valid exception. This Court erred in granting partial summary judgment.

Judge Bibas then went on to explain why the Due Process Clause didn’t forbid liability, and also why the Court’s decisions about retroactive criminal liability had not yet been extended to civil cases. And as to the AAPC plurality opinion:

C. To follow the AAPC plurality, I would need to overhaul the law

The AAPC plurality thought that government-debt collectors would avoid all liability. But I do not see how. In a footnote, Justice Kavanaugh wrote that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before … th[at] case.” AAPC, 140 S. Ct. at 2355 n.12 (emphasis added). To follow the second half of this dictum, I would need to either treat AAPC like legislation or extend Bouie to free-speech cases. Either would be a stretch. Plus, “a holding that shields only government-debt collection callers from past liability … would wind up endorsing the very same kind of content discrimination [that AAPC] s[ought] to eliminate.” Id. at 2366 (Gorsuch, J.). The Supreme Court could reasonably extend Bouie to shield speakers, but I will not.

Finally, Judge Bibas then went on to make an interesting distinction, concluding that punitive damages would be unavailable, because retroactive punishment—as distinct from retroactive liability—raised a different set of issues.

Now Judge Bibas’s opinion is limited to applying current Supreme Court precedent (not including the plurality opinion, which Judge Bibas rightly seems to assume is not binding). But this analysis is sufficiently thoughtful and persuasive that I wouldn’t be surprised to see it having some influence even when the Justices next have to return to considering these issues.

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