Category: reason

Deadline for passage expired in 1982. The House will vote this week on a resolution to remove the time limit for ratifying the Equal Rights Amendment (ERA) to the Constitution. The ERA was first proposed more nearly a century ago, back when the idea that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex” was both radical and not already codified in U.S. law in a million ways.

The ERA was reintroduced in 1971 and approved by Congress in 1972, but because it would amend the U.S. Constitution, it required ratification by 38 states. Congress set a deadline of March 22, 1979, for this to happen. When the deadline came, however, only 35 states had voted to ratify. Congress then extended the ratification deadline to June 30, 1982. But in the interim, no new states voted to ratify and five states voted to rescind their earlier approval. So people moved on, striking down sex discrimination under the law through various court cases and other pieces of legislation.

In recent years, however, Democrats have been pushing to revive the long-dead ERA. Nevada voted to ratify in 2017, Illinois in 2018, and Virginia in 2020. ERA proponents say this means that a sufficient number of states (38) have now ratified.

Others counter that not only did five states revoke their ERA support, but also that the three recent ratifications came more than three decades after the deadline for ratification expired.

Late Supreme Court Justice Ruth Bader Ginsburg opined in 2020 that ERA supporters should “start over,” since the new votes for ratification came “long after the deadline passed.”

And earlier this month, a federal judge ruled that the Nevada, Illinois, and Virginia votes did not count.

But Democrats aren’t letting this one go. On March 5—the same day that U.S. District Judge Rudolph Contreras ruled against the recently ratifying states—Rep. Jackie Speier (D–Calif.) introduced a House Resolution (H.J.Res.17) to eliminate the earlier deadline for ratification. Since then, the bill has attracted more than 200 co-sponsors, all but one of them Democrats. (The lone Republican co-sponsor is Rep. Tom Reed of New York.)

“Notwithstanding any time limit contained in House Joint Resolution 208, 92d Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution shall be valid to all intents and purposes as part of the United States Constitution whenever ratified by the legislatures of three-fourths of the several States,” states the resolution.

Messaging around the modern ERA has focused little on what changes would stem from its ratification; instead, it’s treated as a self-evidently necessary pre-condition for “women’s equality.“

Democrats’ vagueness and hyperbole about what ERA passage would actually do—and their refusal to push for re-ratification (as Ginsburg preferred) rather than counting half-a-century-old votes as relevant—suggest this is more about politics than making a material difference for women.

Supporting the ERA means Democratic politicians (and their celebrity boosters) get automatic attention as advocates for women while providing the party with an easy way to smear Republican critics as sexist pigs who don’t believe in women’s equality.

Tell your Reps to vote Yes on HJ Res 17, there’s no time limit on equality. The House is voting to remove the time limit on the #ERA on Wednesday! This is our last chance to thank supporters and ask for more co-sponsors. https://t.co/2BJGQTDCma #EqualFuture #ERANow

— Alyssa Milano (@Alyssa_Milano) March 16, 2021

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FREE MINDS

A new documentary premiering at SXSW’s virtual film festival looks at whistleblower Reality Winner, who was arrested in 2017 and prosecuted under the Espionage Act. Winner’s leak of a National Security Agency report related to the 2016 election was “motivated by serving the public. No sources or methods of spycraft were revealed,” notes Business Insider. Check out a clip from United States vs. Reality Winner below:

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FREE MARKETS

For real antitrust reform, fix occupational licensing boards:

"For nearly 80 yrs, there have been severe limits on how federal agencies and private plaintiffs could enforce America’s antitrust laws against a state-sanctioned entity, like an occupational licensing board." https://t.co/ZOm0cpeREP @thedispatch @TraceEVMitchell @senatorshoshana

— R Street Institute (@RSI) March 15, 2021

But of course, U.S. lawmakers are too busy holding their 8 billionth gripe-about-tech-companies “antitrust” show for that…

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QUICK HITS

Being an independent contractor for me = freedom. I DO NOT want to be classified as an employee under ANY law. All Americans should be free to work the way we want to work. #FightforFreelancers #IRSnotabc #PROAct

— Deborah Lynn Blumberg (@dlblumberg) March 16, 2021

• An adult store in Carencro, Louisiana, is fighting the city’s ban on selling sex toys.

• South Carolina lawmakers are trying to proactively address future emergency orders banning church services by having churches declared essential businesses.

• The Los Angeles Daily News honors Women’s History Month by celebrating Ayn Rand, Isabel Paterson, and Rose Wilder Lane.

• A Cincinnati-area police officer is facing criminal charges after allegedly drugging and raping someone in January. Hamilton County prosecutors “are concerned that more victims may be out there,” they said in a statement.

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It’s no secret that regulations can make or break a new business. Government rules on economic activities can be expensive or time-consuming to established firms. For new startups, they can be a non-starter. An entrepreneur can have an innovative idea to provide new goods and services at a higher quality or lower cost than the big boys that dominate the market. But if pioneering new firms can’t handle high regulatory costs, those ideas might never come to be.

Regulatory reform can be hard, not least because incumbents often like the status quo. But small new entrants may have a lot to offer. Ideally, their services could be more affordable or higher quality than those provided by the current market. This means that regulatory barriers can serve to prevent access and lower costs for the people who might need it the most.

Thankfully, forward-looking policymakers have embraced a new kind of government innovation to help new business ideas get to market faster.

“Regulatory sandboxes” create a stripped-down regulatory environment where startups and entrepreneurs can experiment with new business concepts under the watch and light guidelines of regulators. It’s a way to carve a space for innovation without wholesale regulatory reform, which can often be daunting.

Regulatory sandboxes are a fairly new phenomenon, with the first major effort dating back to the United Kingdom’s Financial Conduct Authority (FCA), a “financial technology” (fintech) sandbox, some half a decade ago. Most regulatory sandboxes are for fintech, but there are other experiments for things like insurance, energy, and legal services. The World Bank tallies up 73 regulatory sandboxes across the world, with the majority of them being launched in the past two years.

Because regulatory sandboxes are so new, we have limited data on how effective they are to actually kickstart growth and innovation. The FCA is the oldest, so it has some lessons to offer. The results so far have been promising: Sandbox participants got to market 40 percent faster than non-participants; 80 percent of the participants graduated into the normal market; and participants attracted around £135 million ($187 million U.S.) in funding (around half of the participants ended up partnering with an incumbent firm).

This is not to say that regulatory sandboxes are some kind of panacea. As research by Brian Knight and Trace Mitchell points out, the design of a regulatory sandbox will matter a lot for the quality of final outcomes. For example, sandbox administrators could choose friends or allies to participate while leaving outsiders in the cold, which is just another way of picking winners or losers. Or administrators could give startups that choose not to apply (for whatever reason) extra—even vindictive—scrutiny. Regulatory sandboxes should not simply reproduce the same problems they were created to overcome.

Industry-by-industry sandboxes, like those created specifically for fintech, are a step in the right direction. But they are limited for some of the reasons that Knight and Mitchell point out. By excluding all non-“fintech” (or whatever the industry sandbox is) firms from a path to regulatory relief, industry-specific sandboxes necessarily prioritize some firms over others. Maybe there is a really innovative company that just doesn’t fit the definition of “fintech” within some municipality that offers a fintech sandbox. They will be robbed of the ability to try out their ideas, and society will miss out on the potential benefits they could have provided.

Enter Utah’s new general purpose regulatory sandbox, which was just passed by the state legislature and awaits the Governor’s signature. It’s a really innovative proposal, and it gets around some of the limitations of previous sandbox experiments.

Rather than granting punctuated regulatory relief on an industry-by-industry basis, Utah’s general sandbox creates a new body, called the Office of Regulatory Relief (ORR), that any innovative new company can work with to seek sandbox participation. The company must submit an application to the ORR which explains their business model, which regulations are getting in the way, and how the state would benefit if they are able to participate in a sandbox program. The ORR reviews the application in consultation with the relevant regulatory agency. Successful applicants will receive regulatory exemptions for a one-year period and can apply for an annual extension after that.

Utah’s mechanism design is set up with an eye towards preventing the problem of the government picking winners or losers. For example, applicants are asked whether any of their direct competitors have been granted a sandbox. If so, that would be a strong signal in favor of also granting that applicant a sandbox. It’s not automatic, but it is geared towards making the ORR think seriously about the neutrality of their decisions.

It’s obvious why businesses and consumers would benefit from regulatory sandboxes. Companies would get an opportunity to launch products to market that balances a lightened regulatory load with expert government oversight. Consumers get the benefits of trying out new products and services that might have otherwise never seen the light of day. In the best-case scenario, these greenlit business offerings can reach underserved populations at reasonable prices.

But regulatory sandboxes create great benefits for regulators themselves, too. When it comes to technology, things move fast. Even the most forward-looking oversight bodies struggle to keep up with changes in emerging technologies and adapt their rules to account for them.

Regulatory sandboxes can be just as much of an educational experience for regulators as they are for new businesses. It gives government overseers a crash course in new technologies and a direct line to the innovators that are building them. By working directly on the front lines of new innovation, regulators will be in a better position to tailor their rules so that they accomplish what they intend.

Of course, regulatory sandboxes should not be a substitute for robust regulatory reform. If Utah’s ORR becomes inundated with applications for regulatory relief, it could be a signal that more general regulatory reforms are needed. In any event, it gives a good amount of breathing room that wouldn’t have been there while lawmakers determine which reforms are appropriate.

The kind of regulatory relief that Utah’s general purpose sandbox program promises could not have come at a better time. As vaccination rates creep up and COVID caseloads keep falling, we are finally getting to a place where our economy may be allowed to start recovering. Giving entrepreneurs a path to market viability is a great way to kickstart the kind of economic growth that we need. Let’s hope that more states follow in Utah’s footsteps and create general purpose sandboxes for their own economies.

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(For the full draft PDF, with footnotes, see here.)

Let’s turn to a hypothetical: Say two reporters, Ophelia Often (who tends to checks her voice-mail often) and Randy Rarely (who tends to check his rarely), are writing stories about Starlight Rainbow, accusing her of mistreating a fifth-grade student. (For convenience, assume that Starlight is a principal and thus a public figure or public official under state law.) It turns out, though, that both reporters erred: The actual allegations of mistreatment were about a different teacher with the same last name, Cynthia Rainbow.

Starlight learns about the planned stories, and leaves voice-mails for both reporters with persuasive evidence that she’s not actually the guilty party. (She actually works at a different school.) Ophelia listens to her voice-mail before her story is posted, but Randy listens to his only after. For whatever reason, Ophelia still posts her story, and Randy doesn’t correct his story.

Starlight now sues Ophelia (and her employer) for posting her story and Randy (and his) for continuing to keep his story up. The statement in each story—that Starlight was accused of mistreating the student—is false and defamatory. Ophelia and Randy are both aware now that it’s probably false. Both of their employers are keeping up the stories without correction, even though they are aware that the stories contain false and defamatory statements.

Starlight’s claim against Ophelia’s employer will thus likely prevail: Ophelia posted knowing that the statement was probably false (which likely counts as “reckless disregard” of the truth and therefore “actual malice”), and liability is imputed to Ophelia’s employer under respondeat superior. Starlight can thus use the threat of liability to pressure Ophelia’s employer to correct the story on its site. And it’s hard to see why Starlight’s claim against Randy should be treated any differently:

1. The harm caused by the stories is identical: Starlight is being damaged equally by both.
2. The value of the statements about Starlight is equally low in both stories: Both statements are false.
3. The current mental state of the reporters and employers is equal: Randy and Randy’s employer are as aware of the falsehood now as Ophelia and Ophelia’s employer were when Ophelia’s story went up.
4. The current culpability of the reporters and employers is thus also equal: Randy and Ophelia are continuing to distribute material that they now know to be false, and that’s culpable whether or not their initial posting was culpable at the outset (as Ophelia’s was but Randy’s wasn’t).
5. The chilling effect from the threat of liability is equally low: Such liability would apply only because both reporters have been notified of specific, credible evidence that the statement was false—they wouldn’t be chilled from continuing to write and keep posted material that they believe is true.
6. The practical cost of avoiding liability is basically equal: All the reporters would have to do would be to correct the story to name the right Rainbow.

Correcting a story once it’s posted might call for a bit more work—the publication may feel obligated not just to make a silent change, but to add a correction notice (e.g., “Editor’s Note: This story initially misidentified the teacher; the actual name, corrected above, is Cynthia Rainbow—we regret the error”). And if the request doesn’t come in until several months after the publication (but before the statute of limitations runs), the reporter might need some time to get back up to speed on the story to confirm that a correction really is needed. But these don’t strike me as sufficient bases to justify immunity for Randy.

This duty to make such corrections also mirrors similar duties in other areas of the law. When I disclose something in civil discovery, and I “learn[] that in some material respect the disclosure or response is incomplete or incorrect,” I have to “supplement or correct [my] disclosure.” Lawyers have similar duties to inform the tribunal if they had inadvertently offered evidence but later “come[] to know of its falsity.” People who make a statement related to the offer for sale of securities, and then learn that it was mistaken, must correct it. More broadly, even if I have no affirmative duty to protect you from various kinds of harms, I may acquire such a duty if I created the peril to you in the first place (even if I wasn’t at fault in so creating it).

And I think such a duty is also ethically sound. Damaging another’s reputation through knowingly or recklessly false statements is wrong. It’s wrong if the author posts the statements knowing that they are false. But it’s also wrong if the author learns that the statements are false, but nonetheless continues to distribute them without correction.

To be sure, recognizing a duty to stop knowingly libeling (and thus to correct posts that continue to libel someone) will mean more requests for correction, which publishers will have to consider. But I doubt this marginal effect will be particularly great:

1. Publishers already get requests for corrections and retractions, and generally take them seriously as a matter of journalistic ethics (and common decency), even when they have no legal obligation to correct.
2. Publishers already get demands for corrections backed by a threat of litigation. The subjects of erroneous stories often assume that the authors were negligent (or even had actual malice) at the outset. And even if the publisher did have a categorical right to escape liability when such initial negligence or actual malice can’t be shown, the publisher might not be sure that the jury will find that.

Publishers will thus have to deal with only a slightly larger volume of correction requests, and requests of a sort that they already have to consider. And while those requests will have some cost, they will also have a benefit: less enduring reputational damage to people who can show that the charges against them are indeed false and defamatory.

Publishing a correction, however, should not restart the statute of limitations (except as to claims that the correction itself is libelous). “Whether a modified article is a republication”—i.e., an event that restarts the statute of limitations—will largely turn “on whether the altered article contains defamatory statements not expressed in the original article.” If the only material added softens the original charges, rather than adding new defamatory statements, the statute of limitations would thus not be restarted. And even if the new material is itself allegedly defamatory, adding such material should not restart the statute of limitations as to old material that remains unchanged.

(Starlight Rainbow, by the way, is the real name of the plaintiff in Rainbow v. WPIX, Inc., a 2020 New York case; the facts in the text are based on Rainbow, but modified for the sake of the hypothetical.)

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3/16/25: Pierce v. Society of Sisters argued.

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One week after being trapped inside the United States Capitol as thousands of pro–Donald Trump marauders attempted to forcibly “stop the steal” of the presidential election, Rep. Alexandria Ocasio-Cortez (D–N.Y.) suggested one possible federal government response: convening a national commission on media literacy.

“We’re going to have to figure out how we rein in our media environment so that you can’t just spew disinformation and misinformation,” Ocasio-Cortez told her followers in a video message. “It’s one thing to have differing opinions, but it’s another thing entirely to just say things that are false.”

The road to speech restrictionism is paved with political rhetoric about protecting the proletariat from falsehoods. Hungarian Prime Minister Viktor Orbán last year cited the potentially deadly dangers of “fake news” while ramming through a law punishing coronavirus misinformation with up to five years in prison. Holocaust denial is illegal in more than a dozen European countries, in the name of safeguarding Jewish minorities. Donald Trump, before he was elected president, vowed to “open up our libel laws” as a remedy for “negative and horrible and false articles.”

Thankfully, Trump’s implausible threat—there are no federal laws governing libel, for starters—foundered on the same rocks that will thwart any Ocasio-Cortez attempt to have the feds arbitrate falsehoods and “rein in” free expression. America’s legal and cultural speech traditions are the strongest on the planet, and the Supreme Court under Chief Justice John Roberts has been vigorous in defending the First Amendment.

Add to that legal roadblock a more temporal impediment to Ocasio-Cortez’s policy agenda: Legislation in the 117th Congress will be shaped much more by the most conservative Democrats in the 50–50 Senate than it will by the loudest socialists in the House.

But that doesn’t mean AOC-style censorship will be cauterized in the post-Trump era. To the contrary.

The awful events of January 6 accelerated trends in left-of-center circles, particularly within media and technology companies. Shocked at the sight of a violent mob lending street muscle to a lame-duck president’s conspiracy theory, journalists, academics, and social media companies seemed at once to agree on a two-pronged strategy: using the most maximally negative adjectives to describe the country’s still sizable Trump rump and banishing that bloc’s most deplorable figures from every platform within reach.

First it was the sitting president who was sent to social-media Siberia. Soon, the Twitter-for-right-wingers site Parler found itself without web hosting services after Amazon, Apple, and Google severed all business ties within a 48-hour span. The day after the House impeached Trump for a second time, the journalistic chattering classes redirected their outrage toward Politico inviting conservative commentator Ben Shapiro to be a single-day guest editor of its flagship email newsletter.

The deplatforming mania was almost awesome to behold. “You need to be shut down!” MSNBC anchor Mika Brzezinski ranted in the general direction of Facebook. “Nobody needs what you have to offer. You’ve destroyed this country.” Neoconservative NeverTrumper and Washington Post columnist Max Boot thundered that President Joe Biden “needs to reinvigorate the [Federal Communications Commission] to slow the lies and sedition from Fox and other right-wing broadcasters.” Otherwise, Boot warned, “the terrorism we saw on Jan. 6 may be only the beginning, rather than the end, of the plot against America.” The Associated Press sent out this scare headline to its 1,300-plus media-industry subscribers: “Extremists exploit a loophole in social moderation: Podcasts.”

Among the trial balloons taking flight in this fraught moment was a national commission. Philadelphia Inquirer columnist Will Bunch suggested a South African–style Truth and Reconciliation process “to address the lies and the anti-democratic policies of the Trump years.” It would be “a chance for finding a common national story, for amnesty and a new beginning,” Bunch argued, adding ominously, “I’d be shocked if this happened, but I don’t know any other peaceful path forward.”

This is not the first time the nation’s intellectual and political gatekeepers have found themselves mobilized to collective action after a traumatic outburst of right-wing violence. In 1995, when Timothy McVeigh murdered 168 people with a fertilizer bomb at a federal building in Oklahoma City, President Bill Clinton affixed partial blame to “loud and angry voices” who “spread hate” on conservative talk radio, plus anyone else who believes that the greatest threat to their liberty comes from the U.S. government. “There have been lawbreakers among those who espouse your philosophy,” he scolded the latter group.

But a more interesting antecedent to 2021’s journalistic consensus began in 1944, when, as part of elite soul searching over America’s initially sluggish response to the worldwide threat of fascism, Time Publisher Henry Luce tabbed University of Chicago President Robert Maynard Hutchins to convene a blue-ribbon Commission on Freedom of the Press. The Hutchins Commission, featuring more than a dozen academics and revolving-door government employees including Reinhold Niebuhr, Arthur Schlesinger, and Archibald MacLeish, produced in 1947 one of the most enduringly influential documents in the history of modern media theory, titled A Free and Responsible Press.

Vibrating with revulsion at the lurid, corrupting excesses of tabloid newspaper journalism, the report denounced sensationalism, warned against “‘hate’ speech” (hilariously, the word bureaucratic was cited as an example), and called for the creation of a national news council to establish and enforce professional standards. As the media scholar Stephen Bates dryly noted in a 2018 paper, “Although it might seem difficult to take the new out of news, the commission tried.”

At the heart of the project was a paternalistic disgust that consumers were choosing media wrong, that press barons were building fortunes by pandering to base tastes, and that, as a result, the American experiment of self-government was being undermined from within. The media “can spread lies faster and farther than our forefathers dreamed when they enshrined the freedom of the press in the First Amendment to our Constitution,” the report’s authors lamented. “The press can be inflammatory, sensational, and irresponsible. If it is, it and its freedom will go down in the universal catastrophe.”

Unsurprisingly, that elitist message landed like a stink bomb in smoke-filled 1940s newsrooms. “‘A Free Press’ (Hitler Style) Sought for U.S.,” ran the unsubtle headline in Col. Robert McCormack’s Chicago Tribune.

But then a funny thing happened. As radio and television killed off afternoon papers and newspaper wars reduced the options in most big cities to a single broadsheet monopoly, owners found the Hutchins professionalization model useful for attracting readership from all political persuasions and for building up their own personal prestige. Newsrooms fattened to a historic degree. Until technology enabled their captive audiences to flee.

It turns out people, now as then, still want to read about local crime, absorb different political viewpoints, and otherwise consume media in ways that journalistic elites find skeevy. And unlike in 1947, those attempting to shape the discourse in 2021 are not bothering to try to shove a national polity into a common public square. Instead, like bouncers working the velvet rope, they’re policing who gets to be in the club and how they should behave once inside. This development, in our era of extreme and sporadically violent polarization, threatens to make both journalism and politics worse, assuming that’s possible.

Consumers of political delusion have nobody but themselves to blame for their behavior on January 6. But by expelling rather than interacting with them, elite journalism threatens to make itself more susceptible to confirmation bias and hyperbolic error. Who shall first be virtuous enough to break this vicious cycle?

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