In Bump Stock Case, Tenth Circuit Dismisses Grant of Rehearing En Banc As Improvidently Granted

In May 2020, a divided three-judge panel on the 10th Circuit upheld President Trump’s executive action that prohibited possession of bump stocks. In September 2020, the 10th Circuit granted rehearing en banc in Aposhian v. Barr. The case was fully briefed, and was argued. Yesterday, the 10th Circuit changed course. By a vote of 6-5, the en banc court voted to vacate its prior order granting en banc review, and reinstate the original three-judge panel:

On September 4, 2020, this court entered an order granting Appellant’s Petition for Rehearing En Banc. Having now considered the parties’ supplemental briefs and heard oral argument in this matter, a majority of the en banc panel has voted to vacate the September 4, 2020 order as improvidently granted. As a result, the court’s September 4, 2020 order granting en banc rehearing is VACATED, the court’s May 7, 2020 opinion is REINSTATED, and the Clerk shall reissue this court’s judgment as of the date of this order.

Five judges dissented from the decision to vacate the grant of rehearing en banc. And there were forty-pages of dissentals from four of those five judges:

Chief Judge Tymkovich, as well as Judges Hartz, Holmes, Eid and Carson would proceed with en banc rehearing. Chief Judge Tymkovich, Judge Hartz, Judge Eid, and Judge Carson have written separate dissents from this order, and each has joined in the others’ dissents. Judge Holmes has also joined all dissents.

At present there are 11 active judges on the 11th Circuit. Judge McHugh recused from this case. The order states:

The Honorable Carlos F. Lucero participated in the en banc court’s consideration of this matter while still in active status. He took senior status effective February 1, 2021, but has participated fully in this order.

I suppose the decision to vacate the order occurred before February 1, but the dissentals took some time to write. I am not sure if there is some rule (internal or external) by which senior status judges can have their votes count in this sort of situation.

By process of elimination we know that the six Judges who voted to vacate the prior order were the appointees from Presidents Clinton and Obama: Judges Briscoe, Judges Lucero, Matheson, Bacharach, Phillips, and Moritz. And the five appointees from Presidents Bush and Trump dissented: Chief Judge Tymkovich and Judges Hartz, Holmes, Eid, and Carson.

I don’t recall ever seeing an appellate court DIG an en banc order. I did a search of federal appellate decisions for “en banc” /s “as improvidently granted.” That search yielded only 32 hits. Most of those cases were discussing situations where the Supreme Court DIG’d a case after a circuit court granted en banc. I saw several dissents in which judges urged the en banc court to dismiss a grant of rehearing en banc as improvidently granted. But over the past three decades, only one court has vacated a grant of rehearing en banc: the Tenth Circuit. I found three such cases.

First, in Forest Guardians v. U.S. Forest Service (10th Cir. 2011), the en banc court unanimously vacated its prior order of en banc review. And the panel unanimously granted panel review and issued a revised opinion.

Second, in Gonzales v. McKune (10th Cir. 2002), the en banc court also unanimously vacated its prior order of en banc rehearing, because the issue was not properly raised in state court.

Third, in Northern Arapaho Tribe v. Wyoming (10th Cir. 2005), a divided en banc court vacated its prior order of en banc rehearing. Three judges dissented, and would have certified a question to the Wyoming Supreme Court.

In each of these three cases, there was some indication of why the en banc grant was DIG’d. And in each case, there was a broad consensus to DIG the grant. But in Aposhian, the Court did not explain it DIG, and divided 6-5, with lengthy dissentals.

The lead dissent, by Chief Judge Tymkovich, began:

I dissent from the majority’s decision to vacate the en banc order as improvidently granted. The issues that initially led this court to grant en banc rehearing remain unresolved and it is important that they be addressed to give guidance to future panels and litigants.

The rest of his dissent, and others, explained why the three-judge panel erred.

This case may be a good vehicle for certiorari. Bump stocks are, of course, unpopular, But this case considers whether Chevron deference is warranted in the criminal context. Moreover, the Trump Administration expressly disavowed any reliance on Chevron deference. I suspect the Biden Administration will take a different position. Judge Eid’s dissent summarizes these cert-worthy questions:

Chevron has no place in this case. At least four reasons support this conclusion. First, the statutory language is not ambiguous. Ante, at 9–12 (Tymkovich, C.J., dissenting); post, at 1–2 (Carson, J., dissenting). Second, even if the language were ambiguous, the agency offers up no particular expertise or policy insight to help resolve the ambiguity. Ante, at 1–3 (Hartz, J., dissenting). Third, any argument for deference is waived because the agency disavows reliance on Chevron altogether. Ante, at 12–17 (Tymkovich, C.J., dissenting); post, at 2–3 (Carson, J., dissenting). Finally, the criminal penalties at issue in this proceeding counsel against Chevron’s application. Ante, at 17– 25 (Tymkovich, C.J., dissenting). I join my dissenting colleagues, and write briefly to elaborate on this latter point.

This case may have a chance upstairs.

Disclosure: I authored an amicus brief before the three-judge panel on behalf of the Cato Institute.

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Hard Butter Mystery Riles Canada

DairyCow

In “Sad Sack Wasp Trap,” the fourth episode of the first season of HBO’s brilliant series Succession, Connor Roy, a putatively libertarian doofus who is the eldest son of grizzled media tycoon Logan Roy, volunteers to take the helm in planning an annual family foundation gala dinner.

Planning the event is a big deal for Connor, played by Alan Ruck of the 1986 film Ferris Beuller’s Day Off, because it may be the first time in his life that he’s really done anything at all. After a casual conversation with his ailing father about his usurper brother’s plans for a hostile takeover, a look of sheer terror overtakes Connor’s face when he first hears and then sees his stepmother fail in her attempt to spread a pat of butter onto a flaky, crumbling dinner roll. Aghast, Connor rushes away.

“Hey! Hey!” Connor screams as he barges into the kitchen to berate the busy and bewildered cooks and waitstaff. “The butter’s too cold! The butter is too cold! The butter’s all fucked! You’re fuckwads and you fucked it! There’s dinner rolls ripping out there as we speak!” 

The fictional scene is hilarious in no small part because it plays on the sometimes-bizarre predilections of the super-rich. Yet today, a whole nation is gripped by almost this very same problem: Canada’s butter, it seems, is too hard.

Even at room temperature, some Canadians claim, their butter now won’t soften and spread. And, like a nation of Connor Roys, Canadians are waving their hands and dropping F-bombs as they attempt to get to the bottom of the problem, which they’ve dubbed “Buttergate.”

The first to point out the problem was Sylvain Charlebois, senior director of Dalhousie University’s Agri-Food Analytics Lab, who tweeted about hard butter in December. Then, last month, popular Canadian food author and columnist Julie Van Rosendaal also suggested something is amiss with Canada’s butter. She speculated the country’s now unspreadably hard butter could be the result of tariff changes or changed farming practices.

Since those initial tweets, Van Rosendaal—and many Canadians—have pointed a finger at palm oil supplements, which some farmers in Canada use to augment the diets of their dairy cows. To date, there’s no proof that blaming palm oil tells the whole story.

Some Canadians are even pushing back on the very premise that there is a problem. They argue that the country’s butter is no harder nor less spreadable than it has been historically. Others are questioning why palm oil—the mass production of which, as I point out in my book Biting the Hands that Feed Us, is tied to deforestation and habitat loss for many critically endangered species, including Sumatran tigers—is even used to feed dairy cows.

Though most reports suggest Buttergate may stem from farmers’ use of palm oil as feed, an interesting new report this week suggests “regulations and restrictions on the industry may be partly to blame” for the hard butter.

Just like similar requirements in the United States, Canada’s food regulations require that butter produced or sold in the country must contain at least 80% milkfat. These sorts of rules, generally known as standards of identity, establish ingredient lists or recipes producers must follow if they want to use a term such as “butter” that has been defined under the law, codified into regulations, or both. Standards of identity also typically differ from dictionary definitions of the same food.

(I’ve long argued the United States should abolish all food standards of identity because they don’t benefit consumers but instead serve to protect the incumbent businesses that help establish the standards by erecting regulatory barriers to cripple innovative entrepreneurs and those who embrace more traditional methods.)

So are regulations to blame for Buttergate? What about the use of palm oil? Or, given it’s the 2020s, might Buttergate be the result of a vast conspiracy carried out by legions of Succession fans working in Canada’s dairy industry?

With the Canadian border still closed due to the pandemic, I spoke this week with Cherylynn Bos, owner and operator of Rock Ridge Dairy Farms, located between Edmonton and Calgary. She says any number of factors—including regulations—could be to blame. (Bos’s dairy is organically certified and does not use palm oil in its feed.)

Bos says anything from seasonal changes in dairy feeding practices to butter churning processes and temperatures could be to blame. Still, Bos isn’t certain Buttergate is all it’s cracked up to be.

“There’s a million factors that affect butter softness. If you look at the records, even in the 1950s that was a concern. It’s not a new concept. I feel like someone was trying to stir things up,” she says.

Glenford Jameson, a leading Canadian food lawyer, also told me this week that myriad issues may factor into Buttergate—including those Bos identified. Jameson also notes that Canada has strict dairy supply management rules and practices in place, and urges general faith in the country’s dairy regulators. But he also notes that growing demand for organic butter and grassfed butter in recent years has diverted increasing amounts of milk from the country’s traditional central processing and into those specialty streams. That may have had a ripple effect.

“Canada’s supply-managed dairy industry isn’t designed to take cues from the consumer, so consumer demands are now forcing dairy supply management organizations to find a way to make industry responsive, with mixed results,” Jameson says.

“I always thought that the palm oil angle was more a distraction and not the real cause,” food science Prof. Keith Warriner of the University of Guelph, in Ontario, told me this week. “My theory is that we can relate the hardness to people just noticing more as we all became home-bakers.”

Indeed, sky-high demand for butter during the pandemic—everyone’s cooking and baking and eating at home—seemingly means producers who want to keep up with demand either must make more butter, or make it faster, or both.

Warriner also says it’s reasonable to presume regulations could be partly to blame for Buttergate. But his colleague—who Warriner identifies as a fat chemist (while playfully noting he’s using the term to refer to the colleague’s expertise, not his appearance)—disagrees.

“Regulations are definitely not to blame” for Buttergate, University of Guelph food science professor Alejandro Marangoni told me by email this week. He says he’s certain, based on significant existing research, that palm oil supplements lead to harder butter.

“I think the issue is that the consumers did not expect this to be happening to their dairy products, but there is nothing inherently wrong with it,” Marangoni says.

There may be nothing wrong, but Canada’s leading dairy group is clearly concerned. Last month, Dairy Farmers of Canada, a trade group, urged producers to temporarily halt their use of palm oil supplements.

While the cause or causes of Buttergate likely include the use of palm oil in feed and may include other factors, one thing is for certain. If a Canadian dairy figured out a way to produce a more-spreadable butter that falls short of Canada’s legal requirements that butter contain at least 80 percent fat, then that dairy could not label that butter as “butter.” 

Whether or not regulations are to blame for contributing to Canada’s so-called Buttergate, this much is true: Even if regulations didn’t make Canada’s butter harder, they may make it harder to make it softer.

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The Hidden Rule of Ownership

This post is adapted from our new book, Mine!: How the Hidden Rules of Ownership Control Our Lives, available March 2. To learn more about the book, visit minethebook.com.

The idea of ownership seems natural and beyond contest.  You know what it means to own stuff, whether you’re buying a new home or claiming the last slice of pie.  Mine couldn’t be simpler.

But a lot of what you know about ownership is wrong.

As we have shown in the blog posts this week, once you understand how the rules actually work, you will see the drama taking place beneath our workaday ownership.  Governments, businesses, and ordinary people are constantly changing the rules on who gets what and why.  Each of these choices creates winners and losers.  And this has always been so. At its core, human society exists to help us deal with competing claims to scarce resources—whether it’s food, water, gold, or sexual partners—so that we don’t kill each other too often.

Even the Garden of Eden story turns on ownership.  God instructs Adam and Eve that the Tree of Knowledge and its fruit belong to God alone.  It’s mine.  Don’t touch.  But the first people pluck the apple, are evicted from the Garden, and human history begins.  Since then, ownership has been up for grabs. And ownership conflicts present themselves where you might least expect.

  • When is it okay to recline your airplane seat?
  • Why does HBO tolerate, even encourage, you to share your password illegally?
  • What do you really own when you click the “buy now” button?
  • And why does New York City have some of the world’s best drinking water?

Ownership invisibly shapes every single day of our lives. Every minute. These are the rules that determine who gets what and why. Whether you stand at the front of the line or the back. It’s the medications you take, what you drive, where you live. What you can listen to and watch. We encounter the rules of ownership all the time without noticing, like fish swimming in water.

It’s no coincidence that in every culture “mine” is one of the first words babies speak. Spend any time in a playground, and all you will hear is kids shouting mine, mine, mine. One kid shouts, “I had it first. It’s mine!” The other cries back, “Mine! I’m holding the shovel.”

You may tune out this shouting match. But if you listen carefully, you can learn something subtle and revealing about ownership. Each child is asserting an ownership story – in our example, it’s “first come, first served” versus “possession is nine-tenths of the law.” First-in-time and possession are two of the six stories that everyone uses to claim everything in the world. Only six:

  • First in time – “First come, first served”
  • Possession – “Possession is nine-tenths of the law”
  • Labor – “You reap what you sow”
  • Attachment – “My home is my castle”
  • Self-ownership – Our bodies, ourselves”
  • Family – “The meek shall inherit the earth”

Owners of valuable resources are always trying to figure out the particular story for “mine” that will influence others to do their will at the lowest cost and with the least hassle.  Simply by tweaking each story, they can steer you and everyone around you invisibly, gently, but powerfully to act how they want.  Yet notions of “mine” are so incorporated into our everyday behavior that we don’t even notice how the rules have been chopped up, fine-tuned, and redefined to push us this way or that.

Don’t be fooled.  Each side claims the moral high ground, each side wants the law bent towards its view. But there is no natural, correct rule for who owns what. It all comes down to competing stories. And because ownership is a story-telling battle, that also means it’s up for grabs. The prize goes to those who know how its hidden rules really work.

Once you start looking for competing ownership stories, you will see them everywhere. We guarantee there’s a newspaper headline today that snaps into focus once you understand how ownership really works—just look at current debates over who counts as “first” for the Covid-19 vaccine.

In Mine! we explore fun, surprising, and often infuriating real-life stories that reveal who gets what in the 21st century. Remarkably, governments and businesses use the exact same six simple stories kids assert to solve fights on the playground—and these stories offer our best chance to address really big problems like preserving online freedom, cooling our warming planet, and curbing America’s new wealth aristocracy.

If the tools of modern microeconomic analysis interest you, then look at Freakonomics, where Steven Levitt and Stephen Dubner explain everything from cheating and crime to parenting and sports.  If you’re more psychologically minded, read Nudge, where Cass Sunstein and Richard Thaler show how to improve our decisions on health, wealth, and happiness.  Economics and psychology are great tools.  They explain a lot.  But they also miss a lot.  Both tend to take ownership for granted, when it is anything but fixed.  If you want to see how the hidden rules of ownership really work, then Mine! is for you.

Thank you so much to the Volokh Conspiracy for inviting us to guest post over this past week.  If you are interested in having us talk at your business, organization, or school, please get in touch.  We love to discuss all things Mine!

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Hard Butter Mystery Riles Canada

DairyCow

In “Sad Sack Wasp Trap,” the fourth episode of the first season of HBO’s brilliant series Succession, Connor Roy, a putatively libertarian doofus who is the eldest son of grizzled media tycoon Logan Roy, volunteers to take the helm in planning an annual family foundation gala dinner.

Planning the event is a big deal for Connor, played by Alan Ruck of the 1986 film Ferris Beuller’s Day Off, because it may be the first time in his life that he’s really done anything at all. After a casual conversation with his ailing father about his usurper brother’s plans for a hostile takeover, a look of sheer terror overtakes Connor’s face when he first hears and then sees his stepmother fail in her attempt to spread a pat of butter onto a flaky, crumbling dinner roll. Aghast, Connor rushes away.

“Hey! Hey!” Connor screams as he barges into the kitchen to berate the busy and bewildered cooks and waitstaff. “The butter’s too cold! The butter is too cold! The butter’s all fucked! You’re fuckwads and you fucked it! There’s dinner rolls ripping out there as we speak!” 

The fictional scene is hilarious in no small part because it plays on the sometimes-bizarre predilections of the super-rich. Yet today, a whole nation is gripped by almost this very same problem: Canada’s butter, it seems, is too hard.

Even at room temperature, some Canadians claim, their butter now won’t soften and spread. And, like a nation of Connor Roys, Canadians are waving their hands and dropping F-bombs as they attempt to get to the bottom of the problem, which they’ve dubbed “Buttergate.”

The first to point out the problem was Sylvain Charlebois, senior director of Dalhousie University’s Agri-Food Analytics Lab, who tweeted about hard butter in December. Then, last month, popular Canadian food author and columnist Julie Van Rosendaal also suggested something is amiss with Canada’s butter. She speculated the country’s now unspreadably hard butter could be the result of tariff changes or changed farming practices.

Since those initial tweets, Van Rosendaal—and many Canadians—have pointed a finger at palm oil supplements, which some farmers in Canada use to augment the diets of their dairy cows. To date, there’s no proof that blaming palm oil tells the whole story.

Some Canadians are even pushing back on the very premise that there is a problem. They argue that the country’s butter is no harder nor less spreadable than it has been historically. Others are questioning why palm oil—the mass production of which, as I point out in my book Biting the Hands that Feed Us, is tied to deforestation and habitat loss for many critically endangered species, including Sumatran tigers—is even used to feed dairy cows.

Though most reports suggest Buttergate may stem from farmers’ use of palm oil as feed, an interesting new report this week suggests “regulations and restrictions on the industry may be partly to blame” for the hard butter.

Just like similar requirements in the United States, Canada’s food regulations require that butter produced or sold in the country must contain at least 80% milkfat. These sorts of rules, generally known as standards of identity, establish ingredient lists or recipes producers must follow if they want to use a term such as “butter” that has been defined under the law, codified into regulations, or both. Standards of identity also typically differ from dictionary definitions of the same food.

(I’ve long argued the United States should abolish all food standards of identity because they don’t benefit consumers but instead serve to protect the incumbent businesses that help establish the standards by erecting regulatory barriers to cripple innovative entrepreneurs and those who embrace more traditional methods.)

So are regulations to blame for Buttergate? What about the use of palm oil? Or, given it’s the 2020s, might Buttergate be the result of a vast conspiracy carried out by legions of Succession fans working in Canada’s dairy industry?

With the Canadian border still closed due to the pandemic, I spoke this week with Cherylynn Bos, owner and operator of Rock Ridge Dairy Farms, located between Edmonton and Calgary. She says any number of factors—including regulations—could be to blame. (Bos’s dairy is organically certified and does not use palm oil in its feed.)

Bos says anything from seasonal changes in dairy feeding practices to butter churning processes and temperatures could be to blame. Still, Bos isn’t certain Buttergate is all it’s cracked up to be.

“There’s a million factors that affect butter softness. If you look at the records, even in the 1950s that was a concern. It’s not a new concept. I feel like someone was trying to stir things up,” she says.

Glenford Jameson, a leading Canadian food lawyer, also told me this week that myriad issues may factor into Buttergate—including those Bos identified. Jameson also notes that Canada has strict dairy supply management rules and practices in place, and urges general faith in the country’s dairy regulators. But he also notes that growing demand for organic butter and grassfed butter in recent years has diverted increasing amounts of milk from the country’s traditional central processing and into those specialty streams. That may have had a ripple effect.

“Canada’s supply-managed dairy industry isn’t designed to take cues from the consumer, so consumer demands are now forcing dairy supply management organizations to find a way to make industry responsive, with mixed results,” Jameson says.

“I always thought that the palm oil angle was more a distraction and not the real cause,” food science Prof. Keith Warriner of the University of Guelph, in Ontario, told me this week. “My theory is that we can relate the hardness to people just noticing more as we all became home-bakers.”

Indeed, sky-high demand for butter during the pandemic—everyone’s cooking and baking and eating at home—seemingly means producers who want to keep up with demand either must make more butter, or make it faster, or both.

Warriner also says it’s reasonable to presume regulations could be partly to blame for Buttergate. But his colleague—who Warriner identifies as a fat chemist (while playfully noting he’s using the term to refer to the colleague’s expertise, not his appearance)—disagrees.

“Regulations are definitely not to blame” for Buttergate, University of Guelph food science professor Alejandro Marangoni told me by email this week. He says he’s certain, based on significant existing research, that palm oil supplements lead to harder butter.

“I think the issue is that the consumers did not expect this to be happening to their dairy products, but there is nothing inherently wrong with it,” Marangoni says.

There may be nothing wrong, but Canada’s leading dairy group is clearly concerned. Last month, Dairy Farmers of Canada, a trade group, urged producers to temporarily halt their use of palm oil supplements.

While the cause or causes of Buttergate likely include the use of palm oil in feed and may include other factors, one thing is for certain. If a Canadian dairy figured out a way to produce a more-spreadable butter that falls short of Canada’s legal requirements that butter contain at least 80 percent fat, then that dairy could not label that butter as “butter.” 

Whether or not regulations are to blame for contributing to Canada’s so-called Buttergate, this much is true: Even if regulations didn’t make Canada’s butter harder, they may make it harder to make it softer.

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The Hidden Rule of Ownership

This post is adapted from our new book, Mine!: How the Hidden Rules of Ownership Control Our Lives, available March 2. To learn more about the book, visit minethebook.com.

The idea of ownership seems natural and beyond contest.  You know what it means to own stuff, whether you’re buying a new home or claiming the last slice of pie.  Mine couldn’t be simpler.

But a lot of what you know about ownership is wrong.

As we have shown in the blog posts this week, once you understand how the rules actually work, you will see the drama taking place beneath our workaday ownership.  Governments, businesses, and ordinary people are constantly changing the rules on who gets what and why.  Each of these choices creates winners and losers.  And this has always been so. At its core, human society exists to help us deal with competing claims to scarce resources—whether it’s food, water, gold, or sexual partners—so that we don’t kill each other too often.

Even the Garden of Eden story turns on ownership.  God instructs Adam and Eve that the Tree of Knowledge and its fruit belong to God alone.  It’s mine.  Don’t touch.  But the first people pluck the apple, are evicted from the Garden, and human history begins.  Since then, ownership has been up for grabs. And ownership conflicts present themselves where you might least expect.

  • When is it okay to recline your airplane seat?
  • Why does HBO tolerate, even encourage, you to share your password illegally?
  • What do you really own when you click the “buy now” button?
  • And why does New York City have some of the world’s best drinking water?

Ownership invisibly shapes every single day of our lives. Every minute. These are the rules that determine who gets what and why. Whether you stand at the front of the line or the back. It’s the medications you take, what you drive, where you live. What you can listen to and watch. We encounter the rules of ownership all the time without noticing, like fish swimming in water.

It’s no coincidence that in every culture “mine” is one of the first words babies speak. Spend any time in a playground, and all you will hear is kids shouting mine, mine, mine. One kid shouts, “I had it first. It’s mine!” The other cries back, “Mine! I’m holding the shovel.”

You may tune out this shouting match. But if you listen carefully, you can learn something subtle and revealing about ownership. Each child is asserting an ownership story – in our example, it’s “first come, first served” versus “possession is nine-tenths of the law.” First-in-time and possession are two of the six stories that everyone uses to claim everything in the world. Only six:

  • First in time – “First come, first served”
  • Possession – “Possession is nine-tenths of the law”
  • Labor – “You reap what you sow”
  • Attachment – “My home is my castle”
  • Self-ownership – Our bodies, ourselves”
  • Family – “The meek shall inherit the earth”

Owners of valuable resources are always trying to figure out the particular story for “mine” that will influence others to do their will at the lowest cost and with the least hassle.  Simply by tweaking each story, they can steer you and everyone around you invisibly, gently, but powerfully to act how they want.  Yet notions of “mine” are so incorporated into our everyday behavior that we don’t even notice how the rules have been chopped up, fine-tuned, and redefined to push us this way or that.

Don’t be fooled.  Each side claims the moral high ground, each side wants the law bent towards its view. But there is no natural, correct rule for who owns what. It all comes down to competing stories. And because ownership is a story-telling battle, that also means it’s up for grabs. The prize goes to those who know how its hidden rules really work.

Once you start looking for competing ownership stories, you will see them everywhere. We guarantee there’s a newspaper headline today that snaps into focus once you understand how ownership really works—just look at current debates over who counts as “first” for the Covid-19 vaccine.

In Mine! we explore fun, surprising, and often infuriating real-life stories that reveal who gets what in the 21st century. Remarkably, governments and businesses use the exact same six simple stories kids assert to solve fights on the playground—and these stories offer our best chance to address really big problems like preserving online freedom, cooling our warming planet, and curbing America’s new wealth aristocracy.

If the tools of modern microeconomic analysis interest you, then look at Freakonomics, where Steven Levitt and Stephen Dubner explain everything from cheating and crime to parenting and sports.  If you’re more psychologically minded, read Nudge, where Cass Sunstein and Richard Thaler show how to improve our decisions on health, wealth, and happiness.  Economics and psychology are great tools.  They explain a lot.  But they also miss a lot.  Both tend to take ownership for granted, when it is anything but fixed.  If you want to see how the hidden rules of ownership really work, then Mine! is for you.

Thank you so much to the Volokh Conspiracy for inviting us to guest post over this past week.  If you are interested in having us talk at your business, organization, or school, please get in touch.  We love to discuss all things Mine!

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Some Jobs Are More Equal Than Others

image-2-2

Should your right to earn a living depend on whether your job is considered “speech”? Say you’re a comedian. The First Amendment protects your jokes, funny or not, and it’s very hard for the government to put you out of business. Now say you run a food truck. Where you can sell your meals is almost entirely at the mercy of your city council, even if it simply wants to protect your competitors. Why? Because the courts have decided that some rights are more important than others.

This unfortunate fact sits in the background of today’s controversies over Big Tech. Everyone seems to hate social media companies and has plans to regulate them. But what the politicians aren’t saying is that many of their proposed laws would be unconstitutional. That’s because Big Tech makes money with speech.

Big Tech proposals abound. In the Texas legislature, there’s a bill that would allow people to sue a social media company if it “discriminates” against them—in other words, suspends someone’s account or deletes a post—because of their “viewpoint.” Meanwhile, in Florida the governor and other lawmakers are encouraging legislation regulating social media in a variety of ways, including fines for deplatforming a candidate for office. Members of Congress have thrown around a host of other similar restrictions.

These proposals would force private parties like Facebook and Twitter to host speech they disagree with. But the courts have repeatedly said that the Constitution protects anyone’s right—even a mega corporation’s—to say or host (or not say or not host) any speech they please. The same would be true if you or I made a website—or published a newspaper (remember those?)—and only let people we agreed with contribute to it. (By the way, this has nothing to do with Section 230, a law protecting websites from some defamation lawsuits. Amending Section 230 won’t change whether Facebook has a First Amendment right to refuse to allow people to make posts it doesn’t want.)

On the other hand, a number of laws that are just as sinister are already on the books in every state. They don’t regulate what we say, but what we do. For example, the pandemic has shone a light on certificate of need laws, protectionist licenses that limit how many of a given business can operate in an area. Prevalent in health care, they needlessly block the opening of additional clinics and hospitals, and even the purchase of medical equipment, giving existing competitors a veto. The only real purpose of these laws is to protect the profits of incumbent businesses. 

Another example is occupational licensing. States don’t only mandate traditional licenses, like those for doctors and lawyers. They license everything from manicurists to hair braiders to painters. Louisiana even licenses florists. Licensing laws do very little to protect the public from these “dangerous” occupations, and instead force aspiring entrepreneurs to spend time and money on unnecessary schooling and tuition, raising prices for consumers in the process.

These barriers aren’t driven by a need to preserve public health and safety, but by special interest lobbying to protect established practitioners from competition. Given that background, the courts will find them unconstitutional, right?

Unfortunately, no. Because entrepreneurs like manicurists, florists, and medical clinic operators don’t “speak” to earn a living, they don’t get the same protections as Facebook, Twitter, or comedians. Courts enforce the right to earn a living with an exceedingly light touch, giving the government all kinds of power to regulate even when the public interest is nowhere to be seen. That changes for a handful of rights, such as speech, that judges happen to favor. 

This distinction has no grounds in constitutional text or the American experience. The right to earn a living is a long-established right at the center of the American Dream. Choosing the occupation of your calling unshackles you from what others think is in your best interest and allows you to follow your passions while providing for your family. Untold numbers of immigrants have come here because of the opportunity that right brings them. 

None of this is to say that the courts should not protect free speech. They absolutely should. But they should stop picking and choosing the parts of the Constitution that they like, and instead protect our constitutional liberties across the board. Just because you happen to speak for a living shouldn’t determine whether you’re protected from grandstanding politicians.

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Some Jobs Are More Equal Than Others

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Should your right to earn a living depend on whether your job is considered “speech”? Say you’re a comedian. The First Amendment protects your jokes, funny or not, and it’s very hard for the government to put you out of business. Now say you run a food truck. Where you can sell your meals is almost entirely at the mercy of your city council, even if it simply wants to protect your competitors. Why? Because the courts have decided that some rights are more important than others.

This unfortunate fact sits in the background of today’s controversies over Big Tech. Everyone seems to hate social media companies and has plans to regulate them. But what the politicians aren’t saying is that many of their proposed laws would be unconstitutional. That’s because Big Tech makes money with speech.

Big Tech proposals abound. In the Texas legislature, there’s a bill that would allow people to sue a social media company if it “discriminates” against them—in other words, suspends someone’s account or deletes a post—because of their “viewpoint.” Meanwhile, in Florida the governor and other lawmakers are encouraging legislation regulating social media in a variety of ways, including fines for deplatforming a candidate for office. Members of Congress have thrown around a host of other similar restrictions.

These proposals would force private parties like Facebook and Twitter to host speech they disagree with. But the courts have repeatedly said that the Constitution protects anyone’s right—even a mega corporation’s—to say or host (or not say or not host) any speech they please. The same would be true if you or I made a website—or published a newspaper (remember those?)—and only let people we agreed with contribute to it. (By the way, this has nothing to do with Section 230, a law protecting websites from some defamation lawsuits. Amending Section 230 won’t change whether Facebook has a First Amendment right to refuse to allow people to make posts it doesn’t want.)

On the other hand, a number of laws that are just as sinister are already on the books in every state. They don’t regulate what we say, but what we do. For example, the pandemic has shone a light on certificate of need laws, protectionist licenses that limit how many of a given business can operate in an area. Prevalent in health care, they needlessly block the opening of additional clinics and hospitals, and even the purchase of medical equipment, giving existing competitors a veto. The only real purpose of these laws is to protect the profits of incumbent businesses. 

Another example is occupational licensing. States don’t only mandate traditional licenses, like those for doctors and lawyers. They license everything from manicurists to hair braiders to painters. Louisiana even licenses florists. Licensing laws do very little to protect the public from these “dangerous” occupations, and instead force aspiring entrepreneurs to spend time and money on unnecessary schooling and tuition, raising prices for consumers in the process.

These barriers aren’t driven by a need to preserve public health and safety, but by special interest lobbying to protect established practitioners from competition. Given that background, the courts will find them unconstitutional, right?

Unfortunately, no. Because entrepreneurs like manicurists, florists, and medical clinic operators don’t “speak” to earn a living, they don’t get the same protections as Facebook, Twitter, or comedians. Courts enforce the right to earn a living with an exceedingly light touch, giving the government all kinds of power to regulate even when the public interest is nowhere to be seen. That changes for a handful of rights, such as speech, that judges happen to favor. 

This distinction has no grounds in constitutional text or the American experience. The right to earn a living is a long-established right at the center of the American Dream. Choosing the occupation of your calling unshackles you from what others think is in your best interest and allows you to follow your passions while providing for your family. Untold numbers of immigrants have come here because of the opportunity that right brings them. 

None of this is to say that the courts should not protect free speech. They absolutely should. But they should stop picking and choosing the parts of the Constitution that they like, and instead protect our constitutional liberties across the board. Just because you happen to speak for a living shouldn’t determine whether you’re protected from grandstanding politicians.

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Josh Hawley’s Toxic Populism

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When rioters stormed the U.S. Capitol in January, Sen. Josh Hawley (R–Mo.) was there. Not only was he happy to see the mob assembled outside his workplace; he cheered them on.

Shortly before the group of conspiracists and reactionaries broke into the building—vandalizing offices, taking selfies amid the wreckage, and dramatically halting business on both the House and Senate floors as lawmakers were evacuated to secure locations, sometimes fearing for their lives—Hawley had been photographed giving them a raised fist of encouragement.

Earlier that morning, then–President Donald Trump had addressed a rally at the National Mall. “We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women,” he directed. “And we’re probably not going to be cheering so much for some of them, because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

Trump pumped the mob up, but it was Hawley who gave it an official channel and a sense of legitimacy. The week before, Hawley had been the first senator to announce that he would oppose certification of the electoral votes that would give the presidency to Joe Biden. “I cannot vote to certify without pointing out the unprecedented effort of megacorporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden,” he said at the end of December. Congress, he complained, had “failed to act.”

The announcement was entirely typical of Hawley: blustery, partisan, pro-Trump, anti–Big Tech, and transparently authoritarian. And it led to disastrous consequences.

The events that followed played out as a kind of ironic insurrection, part 4chan lulz prank, part lethally serious attack. There was the “Q Shaman” wearing face paint and a Viking helmet, the gaggle of internet provocateurs cackling as they looted Speaker of the House Nancy Pelosi’s chambers, and images of a ransacked parliamentarian’s office (presumably not out of frustration with the Byrd rule). These madcap images were juxtaposed with more potent horrors: a mob-built noose and chants of “hang Mike Pence”; video showing rioters mercilessly assaulting a Capitol Police officer with whatever happened to be on hand, including the pole of a Blue Lives Matter flag. By the time it was over, five people, including a protester shot by police and an officer beaten over the head with a fire extinguisher by rioters, had died.

This was not the glorious revolution the rioters had imagined but a deadly cosplay version of it brought to life, a dangerous joke planned and perpetrated by trolls and cranks—and backed by people in power who should have known better. Those few hours on January 6 were like the entire Trump era in concentrate: There were the absurdist aesthetics and lunatic logic, the self-serving lies, the made-for-YouTube showmanship, the chaos and conspiratorial impenetrability, the muddling of the serious with the deeply unserious, the swirling threat of political violence and, finally, its palpable, horrible reality.

And there, as always, were Republicans like Hawley, standing by. They coddled Trump’s delusions and saluted his mob of supporters, fueling their paranoia and excusing their outbursts. And they did it all under the guise of representing ordinary Americans who, they said, simply wanted to be heard.

That was Hawley’s stated logic when he defended his decision to object to certifying the election results. “Many, many citizens in Missouri have deep concerns about election integrity,” he later wrote in a column for the Southeast Missourian. “For months, I heard from these Missourians—writing, calling my office, stopping me to talk. They want Congress to take action to see that our elections at every level are free, fair, and secure. They have a right to be heard in Congress. And as their representative, it is my duty to speak on their behalf. That is just what I did last week.”

Hawley’s defense was crafted with a veneer of deniability. Strictly speaking, he had not called the election rigged, nor had he directly endorsed the nuttier theories that had propagated among the president’s lawyers and supporters. He hadn’t even quite said, outright, that Biden hadn’t won. Instead, he had concocted a dubious rationale about supposedly improper changes to Pennsylvania’s election law—an issue that, as a U.S. senator from Missouri, would not normally fall within his purview—and then insisted he was just echoing the concerns of Missouri voters.

His constituents, in Hawley’s telling, were deeply worried about the technicalities of another state’s vote-counting procedures. As if that’s what the noose and death chants were about.

Did anyone really believe this too-clever-by-half shtick? Did Hawley? Did it even matter? The episode generated an uproar and entirely justified outrage, but it also generated something Hawley clearly craves: attention. More than anything else, the junior senator from Missouri specializes in grandstanding and gimmickry cloaked in the language of Middle American populist righteousness. And he is hoping he can grandstand his way to the top of American politics.

It’s no secret that Hawley sees himself as a potential heir to the Trump coalition, a man of the people who dreams of one day occupying the Oval Office himself. After Hawley announced his plan to object to the vote certification but before the Capitol riot, Illinois Rep. Adam Kinzinger—one of the few House Republicans who later voted yes on Trump’s second impeachment—mocked him on Twitter. “I want to be President so I decided to try to get [a] POTUS tweet saying I’m great even though I know this isn’t going anywhere,” Kinzinger posted, imagining Hawley’s internal monologue, “but hey… I’ll blame someone else when it fails.”

Hawley has denied that he’ll run for president in 2024. Yet he clearly wants to set the party’s tone and recalibrate its self-image. In just two years in Washington, Hawley has already positioned himself as one possible future for the GOP, a new breed of legislator that is younger, more vehemently nationalist, and less committed to the party’s “outdated” orthodoxies, particularly when it comes to free speech and limited government. Hawley’s vision of government is a vision of vast power, used to forcibly advance a particular kind of life.

Yet he also represents a link to the party’s past, following in the long tradition of socially conservative scolds and media panic mongers who have found a home on the American right.

Hawley doesn’t want to be the next Trump, exactly. But he wants to be the heir to Trumpism. To that end, he combines the MAGA movement’s ugliest traits with many of the worst tendencies of the pre-Trump Republican Party. He may well be the GOP’s dark future, bringing the culture war into the social media era and repurposing the Progressive Era’s statist playbook for faux-populist ends.

In the wake of the Capitol riots, though, Hawley became something else as well: a smug and self-serving avatar of his party’s darkest and most shambolic moment.

Hawley vs. the Elites

If there’s one thing to know about Hawley’s politics, it’s that they’re rooted in opposition to contemporary elites. In speech after speech, Hawley has decried the progressive overlords who hold the commanding heights of American politics, tech, academia, and culture, who he says have joined together to rule over a vast Middle American public that does not share their values.

“Elites distrust patriotism,” he said in a 2019 speech at a conference on conservative nationalism, “and dislike the common culture left to us by our forbearers.” They “look down on the common affections that once bound this nation together: things like place and national feeling and religious faith.”

America’s Founders “built a new republic governed not by a select elite, as in the days of old, but by the common man and woman, grounded on the premise that it is the common man and woman who are the noblest of citizens,” Hawley explained. But today, America is ruled by a “cosmopolitan consensus” that prioritizes “social change over tradition, career over community, and achievement and merit and progress” and global integration over family and national loyalties. The looming threat, he warned in a separate speech that year, is “government by unelected elites who are confident they know better than the American people, that they know better than the Constitution, that they should be in control.”

Hawley takes this outlook personally. “I’m not happy that people in Washington, D.C.—and, let’s be honest, New York, on Wall Street, in Hollywood—look down on the kind of upbringing I had,” he told The New York Times in 2018.

That’s more than a little bit ironic, given that Hawley is, by almost any definition, an elite himself. A graduate of both Stanford University and Yale Law School, he went on to be a Supreme Court clerk for Chief Justice John Roberts before his 30th birthday. From there, he worked as a lawyer in private practice, a teacher at the prestigious St. Paul’s School in London, and an associate professor at the University of Missouri School of Law. Along the way, he wrote articles for the conservative policy journal National Affairs and a scholarly book, based on his graduate thesis, on the life of President Theodore Roosevelt, published by Yale University Press.

All this was before he ran for office, first becoming a state attorney general and then being elected to the U.S. Senate at the age of 39. Hawley often passes himself off as a man of the people, but he’s also a man above the people, an elite in nearly every sense of the word. He’s well connected and well traveled. You might even call him cosmopolitan.

That’s something he shares with Roosevelt, the subject of his book, who was born to a wealthy family, traveled the globe extensively as a child, and attended Harvard before entering politics. Hawley’s biography is scholarly and intellectual, a dense and sometimes fascinating text intimately concerned not only with the character and philosophy of the man who would become president but also with the character and philosophy of the age, and with how the era and his subject pushed and pulled against each other.

As a sickly young boy, Roosevelt came to emphasize physical strength and vigor as pathways to virtue; he was obsessed with the idea of action, of being a player on history’s grand stage. Roosevelt’s political career, meanwhile, was defined in part by a desire to tame the corporate growth and consolidation that came with turn-of-the-century industrialization. He wielded the threat of antitrust as a weapon against the era’s large corporations. He too was an elite whose political program was a response to a backlash against rapid social change, whose actions were taken in the name of assisting ordinary people.

Hawley’s examination of Roosevelt is not a defense of the 26th president, but he clearly finds the man intriguing. Roosevelt was a stalwart of the late 19th century Progressive movement, which championed expansive corporate regulation as an answer to fast-moving industrialization and urbanization. Roosevelt was a Republican but not a believer in limited government.

In the end, Hawley calls Roosevelt’s approach both “racist” and “coercive,” though he also says it “may yet help Americans imagine a substantive politics of another kind.”

In a later essay for National Affairs, he contrasted Roosevelt’s governance with Woodrow Wilson’s more individualistic, less moralistic philosophy, writing that Wilson “accurately identified Roosevelt’s drift into statism.” Yet it was Wilson who oversaw America’s major early 20th century trustbusting efforts and Wilson who pushed through the Revenue Act of 1913, which implemented a federal income tax. Wilson was a Progressive reformer, too, but of a different kind.

Hawley vs. Big Tech

Hawley doesn’t endorse a full-fledged Wilsonian worldview either—it’s too narrowly individualistic for his taste—but it’s clear he continues to see American politics through the lens of turn-of-the-century Progressive Era politics. Instead of the concerns about railroad monopolies, land conservation, and food safety that dominated the early 20th century, however, Hawley’s principal focus is on the threat of Big Tech.

In April 2018, Hawley, then the attorney general of Missouri, announced that his office would follow a joint effort by New York and Massachusetts and begin a separate investigation into Facebook for its role in what was becoming known as the Cambridge Analytica scandal.

Details were still emerging at the time, and the scandal would eventually grow into a convoluted, multi-threaded narrative involving Trump campaign adviser Steve Bannon, major Republican donors, Russian data scientists, and allegations of stolen or manipulated elections. At its core, the story was built on allegations that Cambridge Analytica, a British firm that also had business in the United States, had unethically and perhaps illegally scoured social media data to create “psychographic” voter profiles. Cambridge Analytica “harvested private information from the Facebook profiles of more than 50 million users without their permission,” The New York Times reported, by buying a batch of data from an independent researcher. It was “one of the largest data leaks in the social network’s history.”

Mainstream media outlets warned that the data created using these profiles might have given Trump an illicit edge that helped him win the 2016 election. They thought it may even have provided a tool for Russians or other foreign rivals to use to cause chaos in American politics. Democratic lawmakers in Congress held hearings and called for congressional oversight of social media.

Hawley, a Republican, had more prosaic concerns: Facebook had a lot of personal data. What was it using those data for?

“You think about the kind of information we put on our Facebook page,” Hawley said at a press conference announcing the Missouri investigation. “Pictures of our kids. Pictures of our families. Family vacations. Pictures of our work colleagues. And then to think that all of that information and more might have been acquired by entities that we don’t even know. I think it’s really terrifying.”

As it turned out, the scandal was barely a scandal at all. It was a misunderstanding, constructed out of a mix of paranoia, ignorance, and political convenience. In October 2020, a yearslong investigation by the U.K. Information Commissioner’s Office (ICO), a government body that oversees British data privacy, found little more than misleading marketing hype on the part of Cambridge Analytica’s chief officers. The complexity of the voter profiles had been wildly exaggerated by both critics and the company itself. There had been no foreign election interference to speak of.

The incident did, however, make Facebook a political target. In 2019, the Federal Trade Commission (FTC) came to a $5 billion settlement with the social media giant for having violated the terms of a 2012 consent decree. In response, Hawley, by then a U.S. senator, signed a letter with Sen. Richard Blumenthal (D–Conn.) arguing that the unprecedented fine was too small and that the FTC had not gone nearly far enough in restricting and managing Facebook’s business practices.

The incident was a model for Hawley’s behavior as an elected official. The investigation he launched as A.G. went nowhere. It mostly served as an announcement that he’d jumped on a bandwagon driven by Democratic A.G.s in other states. The panicky pretext he cooked up—the sharing of family photos—had little to do with the actual issue at hand but was calculated to inject fear into the minds of heartland families. And after the FTC’s settlement, he signed on to a high-profile demand that the federal government take dramatic steps to further regulate a company based on a bevy of bipartisan concerns that largely turned out to be bunk. In the end, he contributed almost nothing of substance. But he had grandstanded his way to the center of attention at every step.

Hawley’s actions may have been largely ineffectual. But they represented a sweeping vision of government control and oversight of Facebook, one in which federal regulators would play a role in nearly every core business decision the company made as well as many smaller decisions about product functionality and marketing.

“Fines alone are insufficient,” the letter said. “Far-reaching reforms must finally hold Facebook accountable to consumers.” The FTC should “consider setting rules of the road” for the platform’s data collection, advertising practices, and other aspects of its business. Essentially, the letter argued that the federal government should be running Facebook.

This was not the first broadside Hawley had launched against the FTC. In March 2019, he’d written a letter to the regulator lamenting that its approach to regulating big tech companies had been “toothless.” The senator listed a series of alleged abuses by Google and Facebook, many of which were remarkably narrow in focus.

When Facebook acquired the chat service Whats-App in 2014, for example, it said that it wouldn’t link accounts between the two services; in 2016, it updated its terms of service to note that the accounts from both platforms might be linked. Several of Hawley’s complaints focused on location data, including a warning that Google had used “misleading terms like ‘location’ when it collects a much broader category of non-location data, including the type of motion (e.g., walking, biking, or driving), barometric pressure, Wi-Fi connectivity, MAC addresses, and battery status charge.”

This was Hawley’s grand case against the tech oligarchs, his argument for an expansive and intrusive regulatory regime: Google had used the words location data to capture data relevant to a user’s location. And the senator didn’t just want Google, Facebook, and their peers to amend their business practices. He wanted to put federal regulators in charge.

No tech product or design feature is too small to escape Hawley’s notice. In July 2019, he introduced the Social Media Addiction Reduction Technology (SMART) Act, which was somehow even dumber than its name would suggest.

Hawley’s bill would have outlawed features such as “infinite scroll,” a feature common to services like Twitter and Instagram that invisibly loads new content to a user’s main feed, letting them scroll through posts without interruption. It also banned features such as Snapchat “streaks,” which provide users with virtual rewards—essentially digital merit badges—for certain types of regular use.

Separately, he proposed legislation banning so-called “loot boxes” and “pay to win” mechanisms, both of which allow players of some popular video games to pay for the ability to advance more quickly through gameplay. All this was supposedly out of concern for children’s attention spans. Instead of a senator from Missouri, you’d think he was the mayor of Farmville.

Hawley’s legislation was dressed up in rhetoric about protecting families. The features he wanted to outlaw, Hawley said, were designed to promote “addiction.” That’s another way of saying he hoped to prohibit practices intended to make the services easier and more enjoyable for customers to use. Hawley was literally proposing that Congress regulate the design and layout of your Instagram feed in order to make it less functional.

In the March letter, he charged that the supposed abuses he laid out followed a “common pattern” in which “big tech companies adopt an ‘ask forgiveness rather than seek permission’ mentality.” His goal was plain: to force big tech companies to get an OK from federal regulators before rolling out new ideas and services.

Hawley wasn’t trying to shave off some rough edges from the tech world’s business practices or correct some anti-consumer activity. He was trying to gut the industry entirely, to turn social media into a quasi-nationalized arm of the federal government.

He’s made no secret of his deep disdain for big technology firms. In a 2019 interview with NBC, he wondered out loud of Facebook and Google, “Should these platforms exist at all?” He also said that a plan by Sen. Elizabeth Warren (D–Mass.) to use antitrust to break up large tech companies—a plan that Facebook founder Mark Zuckerberg had, in an internal meeting, portrayed as an existential threat—might not go far enough. Hawley doesn’t want to fix Big Tech, in other words. He wants to destroy it. And he has no apparent qualms about vastly increasing state power in the process.

Nowhere has that been more apparent than his approach to Section 230, a legacy of 1990s internet regulation that says users and tech companies do not assume legal liability for online speech created by other people. Hawley has proposed multiple amendments to the provision, including one that would end liability protections for large tech companies “unless they submit to an external audit that proves by clear and convincing evidence that their algorithms and content-removal practices are politically neutral.” Companies would have to reapply every two years and gain approval from an FTC supermajority.

The proposal is all but an explicit call for federal control of large social media sites, a de facto nationalization of parts of the tech sector.

The goal is ostensibly to force such companies to behave like politically neutral players. But what will Hawley do when the political tables turn against him? As the last two years of congressional tech hearings have made clear, Democrats and Republicans have very different visions of what effective social media moderation looks like, with Democrats largely desiring greater restriction of views that align with the far right, especially when the views are associated even loosely with political violence. A Republican administration might produce an FTC friendly to Hawley’s goals. A Democratic administration would almost certainly weaponize such a program to restrict the sort of Middle American, pro-Trump speech—for example, questioning election results in the aftermath of a deadly riot—that Hawley seeks to protect.

Hawley’s approach to Big Tech regulation is, in many ways, his approach to government itself: He sees the state as both expansive and granular, an agent of massive power and minute control. It’s an ethic in which Washington knows no bounds and regulates even the smallest interactions of daily life, making them worse when it does not prohibit them outright, in the name of protecting people from themselves. It’s statist and coercive, a right-wing Progressivism updated for a new century.

Hawley vs. the Culture

Hawley’s vision of government has no modesty to it, no sense of its own limits; it is both paternalistic and moralistic.

Hawley has no qualms about demanding that government step in with financial assistance for Americans, even at great expense. In December, for example, Congress put together the final details of what would eventually become a $900 billion COVID-19 relief package, following about $3 trillion of aid earlier in the year. Word emerged that the bill was to include a $600 direct payment to most middle-class households. In response, Hawley co-signed a push with Sen. Bernie Sanders (I–Vt.) to double the payment to $1,200. “It would be a dereliction of duty if Congress adjourns for Christmas without having a vote on providing working families with direct payments,” Hawley said. Later, he backed $2,000 checks.

As in so many other instances, Hawley positioned himself as on the side of ordinary families and blasted Congress for having failed to do its job. He practically ignored the checks that had already gone out as a result of earlier COVID relief bills, as well as data showing a record personal savings rate among Americans. Hawley wasn’t pushing targeted help for those who needed it; he just wanted to take credit for the government sending out ever-larger checks.

Sometimes Hawley seems to be calling for a return to a mercantilist world of tariffs and trade barriers, slowing or stopping the global movement of goods and people that has made both Americans and the global poor richer than ever before.

In his nationalism conference speech on cosmopolitan elites, he cautioned darkly that the consensus he took issue with favored “globalization—closer and closer economic union, more immigration, more movement of capital, more trade on whatever terms.” He warned that elites thought “the boundaries between America and the rest of the world should fade and eventually vanish.” If Big Tech is Hawley’s foremost enemy, trade with China is his second-favorite target. Hawley wants a world that is both more closed and more closed-minded.

At other times, Hawley’s governing vision manifests in mendacious moral crusades. He has repeatedly bragged about his work as Missouri attorney general helping local police free “female victims” who had been “forced into sex work,” including operations with possible ties to “Asian organized crime.” In a series of tweets in June 2020, he bragged of having “freed a dozen women in sex slavery.” After one such bust in 2017, he stood in front of a massage parlor and warned, “We will find you out, we will hunt you down, and we will prosecute you.”

Yet a year later, no felony charges had resulted from the bust. As Reason‘s Elizabeth Nolan Brown has reported, no massive crime syndicate has ever been uncovered. Instead, the majority of the charges that were filed have hit the female workers themselves. He hadn’t freed anyone from modern slavery. He’d raided women’s places of employment and saddled them with small-ball charges that resulted in fines of up to $1,000. It was more of a hardship than a rescue. Hawley’s hero act was a self-serving fabrication.

But it was, once again, typical of Hawley. Not only in the way it emphasized evidence-light grandstanding over real action, but in the way it harkened back to the politically exaggerated moral panics of an earlier era.

Looked at one way, Hawley represents the Republican Party’s post-Trump future: more politically combative, more avowedly nationalist, more averse to trade and immigration, more focused on the white working class that fueled Trump’s rise, happy to drop even the pretense of favoring limited government.

But Hawley also descends from the party’s scolding, censorious past, its tradition of waging showy but largely unserious culture war battles against exaggerated moral panics—whether sordid tales of crime-syndicate sex trafficking or more domestic concerns like Facebook destroying the minds of young children—as well as Hollywood leftists and the liberal media.

Liberal elites have been GOP targets for decades because of their status as prominent, left-leaning institutions of cultural production. Hawley, who until January was the Senate’s youngest member, has just taken that old culture war shtick and turned it against a new generation of coastal elites: Big Tech.

Republicans of an earlier era decried Hollywood for tarnishing America’s family values, and politicians in both parties have participated in high-profile hearings on violent movies and video games, nominally out of concern that such media warp the minds of children. Hawley has repurposed those fears for a new generation. For all his talk of liability shields and privacy violations and addictive user interface designs, he isn’t actually motivated by the particulars. He isn’t going after Big Tech because the industry has committed some particular violation. He’s out to destroy Big Tech because its highly educated, left-leaning, blue-state workforce doesn’t share his values.

At 41, Hawley is (just barely) a member of Generation X. But his crusade against Facebook, Twitter, and Google is a millennial remake of the same old culture war.

Hawley vs. the Truth

A generous accounting of Hawley’s worldview probably looks something like this: The primary job of an elected official is to represent the views and interests of his constituents. There is now a meaningful cultural and political divide between the views of Middle Americans, especially those without a college education, and the views of urban professionals, most of whom lean to the left.

Libertarian ideas are overrepresented in policy debates; Americans are not, by and large, libertarians. Indeed, Americans of the sort Hawley sees himself as representing tend to be almost exactly the opposite: socially conservative but also fairly fiscally liberal, concerned about government waste and spending on foreign aid but open to big public programs that directly benefit Americans.

This group prioritizes something like a traditional family life, and its members are genuinely concerned about the forces that shape their children’s upbringing. But they feel their values are underrepresented in Washington and practically invisible in Big Tech, news media, academia, and Hollywood. Globalization has wreaked havoc on small town economies; once-stable jobs that allowed a sole breadwinner to support a family have evaporated. And since large tech companies now serve as the intermediaries for so much of day-to-day existence, that makes them a legitimate target for public oversight.

What’s more, Republican voters rather like Donald Trump, and there is in fact widespread skepticism about the results of the 2020 election. Hawley doesn’t necessarily have to believe everything his constituents believe. His job isn’t to argue with voters. His job is to ensure they have a representative voice in democratic government.

There is at least some truth to this view of politics: Polls really do show a large cohort of socially conservative, fiscally liberal voters, a good chunk of whom reside in less dense regions and at the lower end of the income and education spectrum. And college-educated urban workforces, especially in tech and media, really do lean heavily to the left. Big Tech really is at the center of everyday life in a way that feels both novel and inescapable to many. It’s possible to make too much of the urban-rural cultural divide, which is messier and more ambiguous than simple dichotomies suggest, but the divide is not imaginary either; these groups on average have different values, different views of politics, and different ways of life.

But the job of politics is to bridge this divide, not turn it into an existential struggle. And Hawley’s idea of politics as mere representation, without any sort of independent judgment applied by the representative, undermines the constitutional system that he claims to admire.

This conception has the potential to transform the lawmaker into an empty vessel—a showboater and a grandstander—or even a powerful purveyor of falsehoods and crankery. It demands that legislators represent the people by giving them voice, no matter what. It says nothing about what to do when what the people want is baseless or even dangerous. It doesn’t account for what happens when what the people want is insane.

It’s a flawed and feckless view of leadership. Indeed, it is practically a form of anti-leadership, for it renders elected officials helpless before the whims of their constituents. And it’s a misunderstanding of the constitutional vision of the Senate—the chamber of which Hawley is a member—which was designed at least in part to restrain the raw populist impulses of the House of Representatives.

Hawley might say he’s acting as a public servant. In his pre–public office writing on the Progressive visions of Roosevelt and Wilson, he called for an ethic of “self-determination” in which the people get to choose their own society. But that ethic, he noted, requires a kind of responsibility and commitment on the part of elected officials, a duty to the polity rather than merely to oneself.

Hawley has clearly failed that test, feeding and validating false and destructive beliefs not only from voters but from Trump himself. It is more than a little ironic that Hawley, who has accomplished little of substance as a lawmaker, has so often framed his arguments as critiques of a Congress failing to do his job. In nearly every case, the failure was Hawley’s.

One might argue that Hawley has tried to sand down the rougher edges of the views he’s trying to represent by turning them into concrete legislative issues: concerns about Section 230, say, or the mechanics of Pennsylvania’s early vote counting. But this attempt to render inchoate, nonsensical concerns into something more cognizable has led, at best, to context collapse, exaggerations, distortions of the truth, and too-clever covers for mistaken or even deranged ideas. And often, it has resulted in Hawley simply lying.

In the weeks after he raised his fist to the nascent mob of Capitol rioters, Hawley insisted that he had never questioned the outcome of the vote. “I was very clear from the beginning,” he said, “that I was never attempting to overturn the election.”

Yet following the election, Hawley repeatedly raised the possibility that Joe Biden would not be sworn in as president. On January 4, two days before Congress’ certification vote (and the riot that accompanied it), he appeared on Fox News and was asked by Bret Baier: “Are you trying to say that as of January 20, that President Trump will be president?” Hawley responded that it was at least a possibility: “Well, Bret, it depends on what happens on Wednesday.”

Hawley was indeed quite clear from the beginning. The results of the election—the results that said Biden had won—were in doubt. What happened next was just as clear: A mob of pro-Trump idiots ransacked the Capitol, and people died.

When the publisher Simon & Schuster subsequently canceled Hawley’s contract for a book on “the tyranny of Big Tech,” the senator’s indignant response was to call the cancellation “Orwellian” and brand it as “a direct assault on the First Amendment.” It was no such thing. The First Amendment guarantees citizens the right to be free from government interference in speech. It does not guarantee a right to a book contract. Moreover, Hawley’s book was soon picked up by another imprint. He hadn’t been censored, even in the colloquial sense. Every word he wrote would still be published.

Is that the future of the GOP? One might argue it’s actually the present. Under Trump, the party embraced an ethos of self-serving lies that weren’t even particularly clever. In some ways, their obviousness was part of the appeal: They were dares and stunts and bait meant to generate attention and drive opponents nuts as much as anything else. Trumpy grandstanding is hard to replicate, even for someone like Hawley. But that doesn’t mean he won’t try.

In the weeks after the Capitol riot, Hawley was increasingly chastised for his actions leading up to the event. A major donor to his campaign, Tamko Building Products CEO David Humphreys, called for him to be censured—officially reprimanded—by Congress. Seven Democratic senators filed an ethics complaint against him and fellow election-results questioner Sen. Ted Cruz (R–Texas). A Morning Consult poll in late January found Hawley’s overall approval in solidly red Missouri had fallen precipitously, to 36 percent. Among Republicans, his approval had dropped 9 points in the weeks following the Capitol riot, to 63 percent.

In response, Hawley amped up the grievance mongering. If he was going to go down, he would go down grandstanding.

He responded to the Democratic letter calling for his censure by accusing the signers of trying to “silence dissent” and by issuing a formal demand for an ethics investigation into them. “The Senate cannot function if its neutral administrative processes are hijacked for bad-faith ends,” he complained in what was somehow not a competition for the least-self-aware statement ever made by a U.S. senator.

Separately, in a rambling diatribe of victimhood for the New York Post, he linked the widespread criticism he’d received post-riot and the cancellation of his contract with Simon & Schuster to China’s “social credit scores”—a government-run monitoring scheme to rate citizens based on their conformity with the expectations of the Communist state. The headline, and his tweets about the piece, declared, “It’s time to stand up to the muzzling of America.” It was yet another self-serving gimmick built on lies.

America hadn’t been muzzled, and neither had Hawley. He’d landed his tirade on the front page of a major newspaper, available on a website accessible to every American with an internet connection. He’d confused widespread disapproval of his behavior with the threat of an authoritarian crackdown on his rights, a telling mistake from a politician whose frequent response to ideas he disagrees with is to propose a government crackdown on someone else’s rights. And perhaps even more revealing, he’d mistaken opprobrium at his own malignant behavior for opprobrium at the country as a whole.

In the end, Hawley isn’t even a very good populist. He may think he is speaking for the nation or representing the voiceless and oppressed. Instead, he advances his own political fortunes at the expense of the nation’s. He simply can’t tell the difference.

That raised fist at the mob that would go on to storm the Capitol? He wasn’t just cheering them on. He was raising it for himself, ensuring the eyes of history would be trained on him that day. It worked.

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