Category: reason

Go ahead and finish off that bottle of Laphroaig, because a temporary reprieve in tariffs on imported Scotch whisky likely means relief for American consumers beset by high booze prices.

Perhaps more importantly, the announcement on Thursday that the United States would suspend those tariffs demonstrates that the Biden administration is looking to de-escalate trade conflicts with American allies, even though it has signaled an unwillingness to roll back the Trump administration’s broad tariffs on steel, aluminum, and goods made in China. In a joint statement, the American and British governments said they would use the four-month suspension of tariffs as an opportunity “to ease the burden on industry and take a bold, joint step towards resolving” a long-running dispute over subsidies for airplane manufacturers.

That conflict dates back to the Bush administration, but it came to a head during the Trump years. In 2019 the Trump administration imposed a series of tariffs on European cultural goods, including Scotch whisky and French cheeses, in response to what the U.S. sees as unfair European Union subsidies for Airbus, a European airplane manufacturer.

But the United Kingdom is no longer part of the European Union. In January, the British government announced that it was lifting retaliatory tariffs on American goods imposed as part of the Airbus dispute. This week’s move by the Biden administration is a tit-for-tat de-escalation.

White House Press Secretary Jen Psaki said Thursday’s announcement was meant to “create space for a negotiated settlement to the Airbus and Boeing disputes,” but declined to comment on what the next steps might be.

The move is also a clear win for British Prime Minister Boris Johnson, who said in a statement that it “shows what the U.K. can do as an independent trading nation, striking deals that back our businesses and support free and fair trade.” The American tariffs had put a serious dent in Scotch whisky exports to the U.S., which had dropped 37 percent in 2020 according to data tracked by the Distilled Spirits Council of the United States (DISCUS), an industry group.

But while Scotch distillers and American drinkers might cheer the removal of U.S. tariffs, American whiskey will still be subject to 25 percent tariffs levied by the U.K. and E.U. governments. Those tariffs are not connected to the Airbus dispute but were imposed in response to the Trump administration’s tariffs on steel and aluminum, which remain in place.

American whiskey exports to the U.K. have fallen by 53 percent as a result of those tariffs, according to DISCUS’ data, costing distillers $79 million in sales since 2018.

In a statement, DISCUS urged the American and British governments to “build on this positive momentum by negotiating an agreement to simultaneously eliminate retaliatory tariffs on all distilled spirits, which will benefit hospitality businesses on both sides of the Atlantic that are struggling to recover and rebuild from the global pandemic.”

The clock is ticking. European and British tariffs on American whiskey will automatically rise from 25 percent to 50 percent in June unless an agreement is reached.

The tangled mess of booze tariffs on both sides of the Atlantic provides a useful demonstration of the damage that trade wars can cause. Distillers have been caught up in a series of costly trade conflicts that have little, if anything, to do with their businesses. Consumers in America should cheer for this latest development, but Biden has more work to do unwinding these counterproductive trade policies so the whisk(e)y can flow freely.

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An article on the State v. Criscione case in Cleveland.com (Cory Shaffer):

A 64-year-old woman’s Facebook posts blaming a Brook Park nursing home and its administrator for her mother’s death could land her in prison for up to a year in a case that has ignited a battle over the First Amendment.

Lawyers representing Gina Criscione say the first-degree misdemeanor telecommunications harassment and menacing by stalking charges she faces in response to her criticisms of East Park Care Center and administrator Sara Thurmer violate Criscione’s freedom of speech.

A Berea Municipal Court magistrate on Friday held a brief hearing to determine whether there is enough evidence for the case to go to trial. The magistrate, Chris Greene, is expected to issue a ruling next week and, if the case goes forward, schedule another hearing to discuss the First Amendment issues.

Criscione’s attorneys from the Chandra Law Firm and six law school deans and professors who teach First Amendment law in Cleveland and one in Los Angeles filed briefs asking the court to drop the charges and find that the First Amendment protects the Criscione’s posts.

Prosecuting Criscione, the experts warn, would send a message that anyone who dares criticize a business or medical institution online could face the wrath of a vindictive business owner if they can convince a local prosecutor that the negative comments caused them harm.

I blogged about our brief in the case here; an excerpt:

Summary of Argument

[1.] The telecommunications harassment statute and menacing by stalking statute are unconstitutionally overbroad:

• The telecommunications harassment statute bars knowingly posting anything “on an internet … web page for the purpose of abusing, threatening, or harassing another person,” R.C. 2917.21(B)(2)—criminalizing any online statement that is seen as being ill-intentioned.
• The menacing by stalking statute bars people from making multiple posts online if they know that their pattern of conduct would cause another “mental distress” (or, possibly, would cause another to believe that future conduct will cause mental distress), R.C. 2903.211(A)(1)-(2).

These statutes criminalize a substantial amount of protected speech, including speech on matters of public concern. They could, for instance, expose a person to criminal liability for repeatedly ridiculing a local community leader based on a political position the leader has taken—though such a prosecution would violate the First Amendment, see Rynearson v. Ferguson, 355 F.Supp.3d 964, 972 (W.D. Wash. 2019). Moreover, even speech on matters of private concern is protected by the First Amendment. See Bey v. Rasawehr, __ N.E.3d __, 2020-Ohio-3301, ¶ 59.

Unlike traditional telephone harassment statutes, these statutes are not limited to unwanted speech said to an unwilling listener—speech that can in some situations be properly restricted, regardless of its subject matter. Rather, they extend even to critical public expression of opinions or true statements of fact about a person, which is generally constitutionally protected.

[2.] The statutes are not saved by their mens rea requirements. Even if speakers are “motivated by hatred or ill-will,” their speech on matters of public concern is still protected by the First Amendment. Bey, 2020-Ohio-3301, ¶ 59. And Bey makes clear that the same is true of speech on matters of private concern. Id. There is no First Amendment exception for discomforting or upsetting speech made to the public, even if the speech is made with bad intent or with knowledge that some will find it disturbing.

[3.] The telecommunications harassment and menacing by stalking statutes are thus facially unconstitutional—but they are also unconstitutional as applied as well. Ms. Criscione spoke publicly on her personal social media page and while picketing on a public sidewalk. She criticized a healthcare organization and its employees for what she perceived as poor job performance. Statements regarding the “quality of … medical care” involve “a public issue of community concern.” Mucci v. Dayton Newspapers, Inc., 71 Ohio Misc. 2d 71, 75, 654 N.E.2d 1068 (Ct. Com. Pl. 1995). Yet Ms. Criscione is being prosecuted for her statements anyway.

[4.]  Since these statutes criminalize speech based on its content, they are unconstitutional unless they pass strict scrutiny. This they cannot do. Even if there is a compelling governmental interest in protecting people from abuse, harassment, and mental distress, barring a broad range of public criticism cannot be narrowly tailored to serve that interest. See Snyder v. Phelps, 562 U.S. 443, 458-59, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (holding that even outrageous speech that causes emotional distress is still constitutionally protected).

East Park and its employees might prevail in a defamation lawsuit against Ms. Criscione, if they can prove that her allegations are false. But Ohio cannot constitutionally prosecute Ms. Criscione for such criticism under the state’s tele­communica­tions harassment and menacing by stalking statutes, which require no showing of libelous falsehood. These charges should therefore be dismissed.

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President Joe Biden is reportedly considering naming federal Judge Ketanji Brown Jackson to fill the vacancy on the U.S. Court of Appeals for the District of Columbia Circuit that will soon be left when Judge Merrick Garland leaves that court to assume the role of attorney general. Sometimes known as the “second-highest court in the land,” the D.C. Circuit is frequently a stepping stone to a spot on the U.S. Supreme Court. In other words, if Biden names Jackson to the D.C. Circuit, it is a good sign that she is on Biden’s SCOTUS shortlist.

So what does Jackson’s judicial record tell us about her?

Criminal justice reform advocates will likely be heartened by Jackson’s decision in the 2013 case Patterson v. United States. At issue was the arrest of an Occupy D.C. protester named Anthony Michael Patterson for using profanity in a public park. According to one of the arresting officers, Patterson yelled “fuck white people” when he saw several Tea Party activists on the scene at an Occupy D.C. protest in Washington’s McPherson Square park. After another officer told Patterson to stop cursing, Patterson allegedly yelled “fuck” a few more times. Patterson was ultimately arrested for disorderly conduct. That charge was dropped a month later.

Patterson sued the officers over the bogus arrest. Here’s how Jackson described the suit in her opinion for the U.S. District Court for the District of Columbia: Patterson “alleges that Sergeant [Todd] Reid violated Patterson’s First Amendment rights when he ordered Officers [Jennifer] Lemke and [Matthew] Cooney to arrest Patterson solely based on the content of protected speech in the absence of probable cause to arrest him for disorderly conduct and that Officers Lemke and Cooney violated Patterson’s First Amendment rights when they complied with that order and actually arrested him.”

The officers moved to have the lawsuit dismissed. Among other arguments, they maintained that their actions were shielded from civil litigation under the doctrine of qualified immunity. According to the Supreme Court’s 1982 ruling in Harlow v. Fitzgerald, state actors are entitled to immunity from civil suits arising from their official conduct so long as the conduct that they’re being sued over “does not violate clearly established statutory or constitutional rights.” In effect, the officers took the position that it was not “clearly established” that the First Amendment prevents somebody like Anthony Michael Patterson from being arrested for using certain four-letter words in public.

Jackson not only denied the officers qualified immunity, but she practically laughed them out of her courtroom. “The right to be free from a retaliatory arrest in the absence of probable cause is clearly established in this jurisdiction,” she wrote. Indeed, “a police officer is unquestionably on notice that arresting a speaker solely based on the content of his speech and without probable cause to believe that he has committed a crime is a violation of the First Amendment.”

The case easily could have turned out differently in the hands of a different judge, one who was perhaps more deferential toward the police or was simply more amenable to pushing qualified immunity doctrine to the hilt. After all, other federal judges have awarded qualified immunity in cases of truly egregious police misconduct.

Jackson took a different approach. “Because no reasonable officer could conclude that there was probable cause to believe that Patterson was committing disorderly conduct on the facts as alleged in the complaint,” she concluded, “the complaint ably supports the claim that Patterson was arrested in retaliation for his protected speech and that the individual officers therefore violated Patterson’s clearly established First and Fourth Amendment rights.”

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Cold Courage. Available Thursday, March 11, on AMC+.

A decade ago, when the detective series The Killing (an American remake of a Danish TV show) and the child-vampire film Let the Right One In (a Swedish film based on a Swedish book) introduced a new Nordic spin on an old genre, film noir, it was an exciting innovation. Cloaking hardboiled fiction, cynical characters, and somber existential heroes not just in midnight-blurred alleys but in the very climate implied a darkness without escape, a perpetual state of moral ambiguity.

But as streaming services have exponentially expanded the volume and reach of Nordic noir television, its limits have been increasingly obvious. And most of them are apparent in Cold Courage, a 2020 British-Finnish political conspiracy thriller that’s about to make its U.S. debut on AMC’s new AMC+ streaming service.

It’s got two strong female characters with uncertain backgrounds who find themselves in the murky center of a tangle of not-necessarily-related troubles: sadomasochistic sex trafficking; missing persons; deranged exes; and, most importantly, dark doings in the populist campaign of an anti-immigration candidate for British prime minister.

Both women—Mari (Pihla Vitaala, Deadwind) and Lia (Sofia Pekkari, The Sandhamn Murders)—are Finn expatriates working in London after fleeing their country to extricate themselves from family problems. Beyond that, the similarities are few. Mari comes from wealth (her father once owned a gold mine) and has used it help fund a secret organization of uncertain aims (“We…fix … things,” explains one member) that calls itself The Studio.

Lia, on the other hand, has always lived a hardscrabble existence, most recently as a graphic artist for a little lefty magazine that sounds a bit like The Nation, except poorer. To make rent, she’s been doing some freelance design for the party of demagogic politician Arthur Fried (John Simm, Doctor Who). Slogan: “Putting the great back in Great Britain.” She sees no contradiction in her actions—”I don’t care anything about politics”—but knows enough to keep the political work silent.

Until, that is, Mari literally bumps into her in the street, steals her cell phone, and kinda blackmails and kinda bribes Lia into volunteering to work in Fried’s campaign office and pass along whatever interesting gossip she hears. Lia agrees in return for help finding a missing old friend from her brief new-to-London career as a hooker. But the price, inevitably, is much higher than she expected. She soon slippery-slides into planting surveillance cameras, picking locks, installing phone taps and laying honey traps.

That plot is fairly interesting; its implications perhaps even more so. What, really, is The Studio, which says it fixes things but will never be mistaken for Habitat for Humanity? And who, really, is Mari, whose genteel concerns for Lia do not long conceal her capacity for wielding a stiletto? Initiating a game she calls “Secrets and Lies” at a party of Mari’s magazine colleagues, she offers up instant and detailed assessments of some of the players—”You were sexually abused by your father when you were a child”—that are as accurate as they are appalling. Retorts an enraged Mari: “Who made you God?” But she doesn’t break off her relationship with The Studio.

The twists and turns of Cold Courage are intriguing, but following them isn’t always easy, and the problems will be aggravatingly familiar to anybody who’s watched much Nordic noir. Subplots multiply like Finnish fleas. The perpetually underlit scenes in London’s winter fog—amplified by the characters’ inexplicable urges for midnight strolls down inky harbor-side streets—often make it difficult to tell who’s doing what to whom. What they’re saying is even more of a mystery; though Cold Courage is shot mostly in English, the cast speaks it with half a dozen or more soupy European accents.

Though I’ll admit the mushy Babel of tongues produced some amusing moments. For instance, there’s a scene in which guys I suppose were cops were interrogating a large man who I suppose was a prison inmate.  After a long exchange of murgle-burgle-blahs and mmph-hmmmp-phmfs, the large man boomed out, with crystal clarity: “I want a blow job from Marilyn Monroe!”  Whether his wish was fulfilled, I don’t know. That London fog is thick.

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From U.S. v. Rundo, decided yesterday by the Ninth Circuit (Judges Richard Paez and Ferdinand F. Fernandez, and District Judge Jon S. Tigar):

“[T]he constitutional guarantees of free speech and free press” protect “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio. At its core, the [Anti-Riot Act criminalizes using interstate commerce or communications] “with intent”

(1) to incite a riot; or

(2) to organize, promote, encourage, participate in, or carry on a riot; or

(3) to commit any act of violence in furtherance of a riot; or

(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot ….

[“Riot” is defined as:] a public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.

“[T]o incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.

(1) Instigate: “Instigate” means “to goad or urge forward : set on : PROVOKE, INCITE.” Likewise, “incite” means “to move to a course of action : stir up : spur on : urge on.” Like the Fourth Circuit and the Seventh Circuit, we conclude that speech that “incites” or “instigates” a riot satisfies Brandenburg‘s imminence requirement.

(2) Urging: Urge “means simply to ‘encourage,’ ‘advocate,’ ‘recommend,’ or ‘advise … earnestly and with persistence.'” We agree with the Fourth Circuit that, “because earnestness and persistence don’t suffice to transform such forms of protected advocacy into speech that is likely to produce imminent lawless action, Brandenburg renders the purpose of ‘urging’ others to riot overbroad.”

(3) Organize: The verb “organize” is similarly overbroad. Like “urge,” “organize” is not susceptible to a limiting construction that brings it within Brandenburg‘s strictures….

(4) Encourage and promote: Moreover, like the Fourth Circuit, we conclude that the First Amendment protects speech tending to “encourage” or “promote” a riot. Black’s Law Dictionary defines “encourage” as meaning “[t]o instigate; to incite to action; to embolden; to help” and cross-references aiding and abetting. The Oxford English Dictionary’s definition of “encourage” is similar but also includes “to recommend, advise.” The latter definition fails Brandenburg‘s imminence requirement. The same is true for “promote,” which is synonymous with “encourage.”

(5) Effect of § 2102(b) limitations: Additionally, § 2102(b) states that the terms in question “shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” The Defendants argue that the double negative cancels itself out and that the Act therefore proscribes mere “advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” We agree. The First Amendment protects that kind of advocacy.

We recognize that the Seventh Circuit [in a 1972 decision] construed the exclusion to merely “forestall any claim … [that] advocacy and assertion constitute mere advocacy of ideas or expression of belief excluded under” § 2102(b) in the context of “a truly inciting, action-propelling speech [that] include[d] advocacy of acts of violence and assertion of the rightness of such acts.” We do not believe that the words of the Act will reasonably bear that construction.

(6) Aid or abet: The Defendants assert that “to aid or abet any person in inciting … a riot” (from subparagraph 2101(a)(4)) is subject to the same definition as “to incite a riot” (from subparagraph 2101(a)(1)). Thus, for the foregoing reasons, aiding or abetting inciting a riot satisfies Brandenburg‘s imminence requirement.

In sum, subparagraphs (1), (2), and (4) of § 2101(a) do not violate the First Amendment except insofar as subparagraph (2) prohibits speech tending to “organize,” “promote,” or “encourage” a riot, and § 2102(b) expands the prohibition to “urging” a riot and to mere advocacy….

Defendants assert that the very definition of a “riot” is unconstitutional. We do not agree.

A “riot” requires either one or more “acts of violence” or one or more “threats” to commit one or more acts of violence. The completed acts of violence (or the threatened acts of violence) must “constitute a clear and present danger of, or … result in, damage or injury to the property … or to the person of any other individual.”

Acts of violence are not protected under the First Amendment. Nor are “true threats,” which involve subjective intent to threaten. “True threats” are not limited to bodily harm only but also include property damage.

“[W]e do not hesitate to construe” a statute punishing threats “to require … intent” to threaten. By requiring proof of “intent” and proof that the overt act was committed “for [the] purpose” of a riot, which also indicates subjective intent, Congress limited the “threats” part of the definition of a riot to “true threats.” Thus, a “riot,” as defined in the Act, is not protected under the First Amendment….

[With the unconstitutional portions] severed, § 2101(a) [criminalizes interstate travel or communication] “with intent”

(1) to incite a riot; or

(2) to participate in, or carry on a riot; or

(3) to commit any act of violence in furtherance of a riot; or

(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot ….

As used in this chapter, the term “to incite a riot”, or “to participate in, or carry on a riot”, includes, but is not limited to, instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief.

With the above construction and severance, the Act is not facially overbroad. Rather, the Act prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot [and thus constitutes incitement under Brandenburg v. Ohio], unprotected conduct such as committing acts of violence in furtherance of a riot, and aiding and abetting of that speech or conduct….

[T]he freedoms to speak and assemble which are enshrined in the First Amendment are of the utmost importance in maintaining a truly free society. Nevertheless, it would be cavalier to assert that the government and its citizens cannot act, but must sit quietly and wait until they are actually physically injured or have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them. Of course, the government cannot act to avert a perceived danger too soon, but it can act before it is too late. In short, a balance must be struck. Brandenburg struck that balance, and the Act (after the elisions) adheres to the result….

Judge Fernandez dissented as to the striking of the “organizing” and “urging” language; he would have read urging as limited to incitement of imminent riot, and thus as consistent with Brandenburg, and he added, as to “organizing”:

In the context of an event or activity, like a riot, “organize” means “to unify into a coordinated functioning whole : put in readiness for coherent or cooperative action,” or “to arrange by systematic planning and coordination of individual effort.” Simply put, “organize” means “[t]o arrange (personally); to take responsibility for providing (something); to ‘fix up.'” I agree with the Fourth Circuit that “speech tending to organize a riot serves not to persuade others to engage in a hypothetical riot, but rather to facilitate the occurrence of a riot that has already begun to take shape,” indicating imminence.

It is far from mere speech. It is the very purposeful, physical, and concrete action of structuring people into an intentionally physically violent force, which is at least on the brink of carrying out its mission. Although it might be reasonable to organize some events into the far future, as I see it, organizing a riot does not reasonably lend itself to that interpretation.

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Price gouging laws are generally derided by economists for causing shortages during emergencies. During the COVID-19 pandemic, have they also led to more deaths? A provocative new paper published today by Utah State University’s Center for Growth and Opportunity posits that the shortages caused by government-imposed price controls led to increased numbers of people visiting retail stores in search of scarce products. That overcrowding in stores, the researchers argue, led to more COVID-19 cases and deaths.

“While mitigation policies primarily sought to decrease social contact among individuals to flatten the infection curve, price-gouging regulation may act against this goal by creating shortages that result in increased consumer searches for goods,” write the study’s authors, economists Rik Chakraborti and Gavin Roberts. “The crowds that this produced led to more crowding in stores, and thus more COVID-19 cases and deaths.”

In their paper released today, the two used cellphone mobility data compiled in the Device Exposure Index (DEX), which measures how many devices a smartphone is exposed to at commercial locations, to see whether those shortages led to more social interactions as people traveled around town looking for goods.

Using the DEX, Chakraborti and Roberts found that “activation of price-gouging regulation led the average individual’s social contacts to increase by at least 3.3 other devices per device per day” when holding constant income effects, large nationwide daily changes to the number of social contacts, and measures of the pandemic’s severity, which includes cases, deaths, and whether a lockdown order was in effect.

The price control-induced increase in social contacts, the study found, led to 57 to 184 additional daily confirmed COVID-19 cases in the average state where anti-price gouging laws were in effect. Those policies also produced an additional 12 to 17 daily COVID-19 deaths on average per state.

The additional deaths caused by price gouging laws make up about 25 percent of all COVID-19 deaths from early April in those states, according to the study.

Chakraborti, a professor at Christopher Newport University, tells Reason that the pandemic has provided a unique opportunity to study the empirical effects of price gouging laws.

Economic theory has long predicted that emergency limits on price increases will lead to shortages by encouraging consumers to buy more of a product than they need, while limiting the incentive of entrepreneurs to increase supply.

Measuring the impact of price gouging laws, however, is difficult given that the natural disasters for which they are invoked usually affect only a few states at most, all of which are likely to impose price controls at the same time.

The pandemic, in contrast, has been a nationwide phenomenon that saw states impose restrictions on price increases in a staggered fashion, or not at all. That, says Chakraborti, allows researchers to better tease out the impact of price gouging laws on the availability of goods, and, in the context of the pandemic, COVID-19 deaths.

In a previous study published in the Journal of Private Enterprise in January, Chakraborti and Roberts established that price gouging did produce expected shortages of high-demand products like toilet paper and hand sanitizer by looking at Google search trends for those items. The thinking there was that shortages on store shelves would lead to more people looking online for products.

DEX data also breaks down its data by income quartile based on the estimated census block location of a household.

Chakraborti and Roberts were also able to measure increased searches and social contacts by income group by looking at DEX data on the estimated location of a cellphone owner’s household down to the census block level and then cross-referencing that with income levels in that census block. They found that poorer households experienced a greater increase in social contacts.

“That’s pretty surprising and flies completely in the face of the typical fairness argument that people make” for price control, says Chakraborti. “It’s almost a regressive tax on the poor because they have to go out and search for these products more.”

This is obviously just one study, so its conclusions should be treated with a grain of salt. Nevertheless, the paper is more evidence of the unintended consequences that come with price controls.

During a pandemic, some of those unintended consequences could be deadly.

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