Category: reason

Nearly a year into the pandemic, people on both coasts are increasingly fed up with their leaders. In California, Democratic Gov. Gavin Newsom has done such a poor job handling COVID-19 that activists in the state have submitted more than 1.1 million signatures for a “Recall Newsom” ballot initiative, hoping to qualify for inclusion by the March 17 deadline. In New York, previously chummy reporters and TV anchors are finally holding Democratic Gov. Andrew Cuomo’s feet to the fire after reports surfaced that his administration had not only issued a March directive that put nursing home residents’ lives in peril but had also hidden the total deaths resulting from that decision. 

For those who soured on the efficacy of lockdowns many months ago, or voiced skepticism of executive power right from the start, the incompetence of Newsom and Cuomo is unsurprising. It’s encouraging, though, because now people other than partisans and principled critics of executive power are taking notice of the ways these two governors failed their constituents over the last year.

In California, schools remain closed, meaning 6 million children continue to be subjected to ineffectual virtual learning. The vaccine rollout got off to a terribly slow start. The second ban on outdoor dining, which was in place from early December until late January, has been lifted but was in place for far too long. The 10 p.m. curfew for all non-essential work and gatherings, which was put in place at the end of November, was finally lifted at the end of January. And, as Newsom asked residents to continue to stay home and avoid gatherings this fall, he was caught redhanded attending a lobbyist’s 12-person birthday dinner at the Michelin-starred French Laundry in early November. 

So now the chickens have come home to roost, and an effort to recall Newsom is gaining steam. Recall proponents must submit nearly 1.5 million verified signatures from registered California voters by March 17. As of February 5, proponents had submitted 1.1 million signatures, 800,000 of which have already been officially verified. Of those verified signatures, 84 percent belong to registered voters, which the New York Times notes is an unusually high percentage compared to typical recall efforts. Wasting no time, the former mayor of San Diego, Kevin Faulconer, is already campaigning—as a Republican, no less—for the Newsom’s job.

If the recall effort is successful, Newsom would be the second California governor to be fired from the job. And, according to organizers, it will be in no small part due to the crippling effect his policies have had on small business owners, school children, and working families.

A related story of incompetence is playing out on the opposite coast.

Cuomo has not covered himself in glory since the start of the pandemic. New York has been afflicted by typical blue-state pandemic governance, the likes of which we also saw in places like California: a winter of closed indoor dining and 10 p.m. curfews, very limited school reopening, guidance from leaders advising residents to double mask, and maybe even to continue masking once vaccinated. But Cuomo’s administration has also been embroiled in an enormous scandal. Just a few weeks ago, New York Attorney General Letitia James reported that the governor had undercounted the state’s COVID-related nursing home deaths by nearly 4,000, making the true nursing home resident death toll about 40 percent higher than Cuomo’s administration claimed. Then, Cuomo aide Melissa DeRosa admitted during a private conference call with Democrats that the administration had covered up the true death toll, afraid of provoking a Department of Justice investigation.

For months, the Cuomo administration has been rightfully hounded by critics asking for more information on the March 25 directive, which required nursing homes to admit or re-admit COVID-19 patients regardless of whether they’d tested negative for the virus. Though it was intended to free up hospital space by shifting patients back to nursing homes, many theorize that the total death toll in nursing homes could have been significantly reduced had they required negative COVID-19 tests prior to admission. So Cuomo is essentially facing two different scandals: The initial negligence of the March 25 directive, which resulted in thousands of additional people dying, and a disgraceful refusal to come clean and face accountability.

Though Cuomo’s blameworthy nursing home directive has been an open secret for many months, the national news media largely averted their glance from this story while people like Fox’s Janice Dean sounded the alarms alone. (Locally, journalists at the Newark Star-Ledger were ripping the policies of New Jersey and New York as far back as May 2020, but national media outlets took fairly little notice.) Of late, they’ve taken a gruffer stance, even examining Cuomo’s past and present of strongman bullying. A New Republic headline reads, “The Andrew Cuomo Show Has Lost the Plot“; New York Times headlines declare “Uprising Grows Over Andrew Cuomo’s Bullying” and “Cuomo Faces Revolt After Handling of Nursing Home Deaths” and even “As Outcry Over Nursing Homes Grows, Cuomo Lashes Out at Critics“; The Wall Street Journal bluntly asks if Cuomo did the same thing to disabled people that he did to the elderly in “Another Cuomo Cover-Up?“

Another Times article notes that Cuomo has for years “berated aides and elected officials, brought people to tears and threatened to fire them or end their careers. People outside the governor’s direct control who have clashed with him said he told them they would be subject to negative news stories or political challenges or, in one case, would be publicly likened to a ‘child rapist.'” Most recently, Ron Kim, a New York state assemblyman (and fellow Democrat), has come forward with stories of Cuomo calling him to threaten him after Kim called the nursing home cover-up an “obstruction of justice.” Kim has also declared his intention to pursue impeachment proceedings in a scathing piece in Newsweek.

As Cuomo and Newsom face deserved condemnation and maybe even real consequences for their pandemic malfeasance, it’s worth remembering that the two combined make decisions affecting a collective 60 million people, or about 18 percent of the U.S. population. The pandemic—and subsequent deprivations of liberty in the form of cyclical lockdowns—are too-late reminders that we ought to be choosy not just about who sits in the Oval Office, but also the governor’s mansion.

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If it walks like a duck and talks like a duck, it probably is a duck. But if it looks like a rose and smells like a rose, maybe it’s sex trafficking?

That was the conclusion reached by police officers contacted by a manager at the Walmart in Coshocton, Ohio, who saw some people putting roses on the windshields of cars in the store’s parking lot. The manager called the cops and soon an investigation was underway, according to local news.

“Was this something heinous or was it something of a lesser nature, was it completely harmless?” Deputy Chris Johnson asked.

A bunch of Walmart shoppers thought heinous. Soon so many calls were flooding in that Johnson took the bull by the long-stems and issued a warning:

On 2/15/2021 the Sheriff’s Office received a call from the Walmart Security Department in regards to suspicious activity in their parking lot involving a vehicle and two, what appear to be, males looking into vehicles and placing a single red rose under the windshield wipers of those vehicles. While reviewing the Walmart Surveillance Cameras, the two unknown males are seen exiting from, what appears to be, a newer style dark gray Ford Explorer…and placing a single red rose on it. This same sequence occurs multiple times on several vehicles…

As if that wasn’t scary enough, Johnson raised the terrifying prospect of human sex trafficking:

Although there have been several Facebook posts of similar instances that have happened in Ohio regarding Human Trafficking related techniques, it is unclear at this time if this incident is related to such type of crime.

Ah yes, the reliability of “several Facebook posts.”

Word of the thorn thugs spread so far so fast that a woman named Brittaney Strupe read about the panic in her newsfeed—and picked up the phone.

Note, please, the day of the scary incident: February 15. Hmm. Roses… February 15… Could there possibly be some connection?

Strupe told the police that on Valentine’s Day, a holiday in some parts, her fiancé had given her $300 worth of roses. The next day, as they started to wilt, she didn’t want to throw them out. So she decided to give them away instead.

Strupe and her sister and daughter headed over to where they knew they’d find a lot of cars and put one rose on each windshield.

When Johnson heard the explanation, “It was a relief, and it was nice to put out that update letting the community know that it had been solved.”

In that post to the pollen-petrified people of Coshocton, he explained the guerilla gifters, “never meant to alarm anyone or cause panic in our community.”

And then, as if to undermine the idea that sometimes even sex traffickers take a day off, he added that it is still very important for everyone to be vigilant and aware of their surroundings and follow their gut if they ever see anything suspicious.

Like a random act of kindness.

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Coronavirus developments across the country have largely taken a positive turn, with deaths and hospitalizations declining and new infection rates plummeting. Widespread immunity from a combination of vaccination and prior infection, as well as the likely seasonality of the virus, all point toward the strong possibility that the COVID-19 pandemic may finally be reaching its end.

But you would never imagine this was the case if you get your information solely from government and public health officials, who continue to insist that Americans practice aggressive social distancing and masking—even double masking.

New York City Mayor Bill de Blasio, for instance, advised residents of his city to wear not just one mask, but two masks, until at least June.

“June is the earliest we would even consider changing guidance around masks,” said de Blasio at a press conference on Tuesday. “It may be we continue that guidance for quite a while given what’s going on. Keep doing exactly what you’re doing, not just wear a mask, wear two.”

De Blasio stressed that vaccinated New Yorkers should continue to follow every conceivable precaution out of concern for others, even though preliminary evidence strongly suggests that vaccinated people are substantially less likely to spread the virus at all.

“I would say to anyone vaccinated: Keep wearing that mask,” said de Blasio. “It’s also just the culture, we want everyone to remember that the mask-wearing culture has been part of what turned the corner for us, and we have to keep it that way until this is finally defeated.”

This framing is ridiculous. Government mask mandates are an infringement on individual liberty—perhaps a useful one, but an infringement all the same—not some hot new cultural trend. People are understandably tired of having to wear them, they are sick of avoiding social gatherings, and they miss their friends and family. We were all asked to put up with an astonishing amount of misery for an entire year in order to keep the pandemic at bay. It’s one thing for government officials to stress that people need to hold steady until they receive their vaccines, but it’s quite another to implore them to be even more cautious even after they have been vaccinated.

It’s not just de Blasio sounding an excessively pessimistic note: Anthony Fauci, the Biden administration’s top coronavirus adviser, recently poured cold water on the idea that vaccinated people can enjoy normal life.

“There are things, even if you’re vaccinated, that you’re not going to be able to do in society,” Fauci said during a White House press briefing on Monday. “For example, indoor dining, theaters, places where people congregate. That’s because of the safety of society.”

People are already dining indoors, of course—and have been for much of the pandemic. While this activity has certainly carried risks (COVID-19 spread has been linked to restaurants), those risks drop precipitously if everybody is vaccinated. The notion that we must all live under pandemic rules until some distant, illusory future when the coronavirus has vanished from the earth is demoralizing—and may even make people less interested in getting vaccinated at all—but many public health officials keep implying it.

Perhaps this isn’t so surprising: In his excellent Slow Boring post on this subject, Matthew Yglesias pointed out that public health officials often make impractically cautious pronouncements on a whole host of health-related subjects.

“The thing about public health officials is that they are really into public health,” wrote Yglesias. “The CDC [Centers for Disease Control and Prevention] once put out a bulletin urging sexually active women who aren’t on birth control to preemptively abstain from drinking alcohol lest they risk accidentally exposing a fetus to the demon rum.”

The CDC says you shouldn’t eat eggs with runny yolks.

By the same token, they will continue advising masks past the point at which business or government requires them. pic.twitter.com/ogEZcuIcDB

— Matthew Yglesias (@mattyglesias) February 23, 2021

The upside of this is that everyone who is waiting for government leaders and public health experts to give them permission to live their lives as normal will be waiting forever. So don’t be that person: Get vaccinated as soon as you can, wait for the protection to kick in, and then seize normalcy for yourself.

FREE MINDS

Read Matt Taibbi on Democratic lawmakers’ letter to cable providers urging them to drop Fox News, Newsmax, and One America News Network:

Incredibly, Fox News may soon be the last line of defense against an all-out assault on the heterogenous free press as an institution, and people like me, who’ve despised the channel their whole lives, now find themselves in the unenviable position of having to defend the “Fair and Balanced” channel as a matter of self-preservation.

The local and alternative presses are already dying, and tech platforms have already successfully asserted their rights to censor. All that remains is to topple a behemoth like Fox as a show of strength, leaving an untouchable Soviet-style club of Chuck Todds and Jennifer Rubins and Max Boots in charge of disseminating an approved top-down version of reality. Are you excited yet?

FREE MARKETS

Remember “kids in cages”? Well, Donald Trump is no longer president, so The Washington Post has rebranded this disturbing phenomenon:

First migrant facility for children opens under Biden https://t.co/ADgQxIlMYU

— The Washington Post (@washingtonpost) February 23, 2021

It’s true that President Joe Biden ended the Trump-era policy of routinely separating families caught crossing the border, but Biden did not abolish the practice outright. As Reason‘s Billy Binion explained, Biden’s policy is for states to use their discretion when deciding whether to charge someone apprehended at the border: “It goes without saying that those indicted on criminal charges cannot take their children with them to jail, thus splintering families for the crime of trying to claim asylum. Hundreds are yet to be reunited. Some likely never will be.”

Many children who arrive at the border are unaccompanied—they have no parents from which to be separated. They may have family members already inside the U.S., but the government is often slow to reunite them.

For its part, the Post maintained that criticism of the “migrant facility for children” line was unfair, given that the actual story did contain some criticism of the new practice. This is unpersuasive: The detention of children at the border received dramatic coverage from the mainstream media, often justifiably. Now is not the time to undersell the cruelty of hardline immigration policies.

QUICK HITS

• Congress held hearings on law enforcement failures before, during, and after the Capitol Riots.
• Golf legend Tiger Woods was badly injured in a car crash.
• Virginia voted to abolish the death penalty.
• Apparently, a lot of people had not realized that Elizabeth Olsen is the sister of twins Mary-Kate and Ashley Olsen.

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From Cayuga Nation v. Showtime Networks Inc., decided yesterday by the New York intermediate appellate court (Judges Barbara R. Kapnick, Troy K. Webber, Angela M. Mazzarelli & Jeffrey K. Oing):

Plaintiffs allege that in an episode of the television series Billions they were falsely portrayed as having been involved in an illegal casino land deal, bribery of a public official, and blackmail. To the extent asserted by plaintiff Cayuga Nation, their claims were correctly dismissed on the ground that a governmental entity cannot maintain a libel claim. Contrary to Cayuga Nation’s contention, First Amendment principles are applicable to cases involving libel claims arising from fictional works of entertainment…. While plaintiffs argue that Native American tribes are a unique kind of government entity, they do not explain how that uniqueness bears on the libel analysis at issue.

The claims asserted by plaintiff Halftown were also correctly dismissed. Supreme Court correctly found that the allegedly defamatory matter in the episode was not “of and concerning” Halftown, that is, the fictional character Jane Halftown was not “so closely akin” to plaintiff that a viewer “would have no difficulty linking the two.” The facts that the fictional character Jane Halftown and plaintiff Halftown are both Cayuga, have the same surname, and hold the same or similar positions within the Cayuga tribe do not alter that conclusion[, … especially] given plaintiffs’ failure to allege that plaintiff Halftown was involved in negotiating real estate deals or in electoral issues.

Here’s what I wrote about the trial court decision:

Friday’s decision by New York Judge Kathryn E. Freed in Cayuga Nation v. Showtime Networks Inc. involves a lawsuit over an episode of the Showtime TV series Billions. The show depicted possible bribery and blackmail by the leaders of a “Cayuga Iroquois” tribe, including a council member named “Jane Halftown.” Plaintiffs, Cayuga Nation and tribal council member Clint Halftown, claim the show libeled them, but the court said no:

[1.] There can be no claim for libel of a government entity (as opposed to a government official); that’s a lesser-known holding of New York Times v. Sullivan, and the court concluded that it applies to tribal governments as well.

[2.] Clint Halftown lost his defamation claim because the show would be perceived as fiction that doesn’t make any claims about real people (even ones who share the same last name and job description as a character):

Here, there has been no demonstration that Jane’s character is “of and concerning” plaintiff such that the description of Jane’s fictional character “is so closely akin to [Mr. Halftown that a viewer of the episode who knew him] would have no difficulty linking the two.” … Moreover, … a disclaimer is played during the credits of each episode of the series representing that “[t]he events and characters depicted in [the series] are fictitious” and that “[a]ny similarity to actual persons, living or dead, or to actual events, is purely coincidental.” …

[3.] Plaintiffs lost their right of publicity claim: The New York right of publicity statute is “to be narrowly construed and ‘strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.'”

Since the Cayuga Nation is clearly not a living person, the claim against it pursuant to section 51 must be dismissed. Additionally, since “works of fiction and satire do not fall within the narrow scope of the statutory phrases ‘advertising’ and ‘trade'”, the claim by both plaintiffs pursuant to section 51 must be dismissed. Hampton v Guare (1st Dept 1993)….

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From State v. Peters, decided Monday by the Washington Court of Appeals (opinion by Judge Stephen J. Dwyer, joined by Judge Linda W.Y. Coburn and Chief Judge David S. Mann):

Charles Peters … was a frequent sex buyer—he engaged sex workers once or twice a week while trying to “limit” his spending on these episodes to $2,400 per month.

Peters located information concerning which sex workers were available for hire and which services they offered on a review website called “The Review Board.” Because he wanted to “give something back,” Peters also wrote and posted reviews about his own experiences with various sex workers. Peters’ reviews included detailed and graphic narratives describing his encounters with the particular sex worker he was reviewing, as well as booking information and an Internet hyperlink to that sex worker’s online advertisement.

Peters was also a founding member of another, smaller group of enthusiasts called “The League of Extraordinary Gentlemen.” This group focused its collective attention specifically on Korean sex workers in the greater Seattle area. The League began as an e-mail chain but eventually grew into a private discussion board website. Peters served as a moderator to the online discussion board and was able to invite new members into the group. The members of the League also held occasional, informal, in-person meetings, which were often organized by Peters.

Peters regularly helped to connect various actors within the sex trade to one another. Peters introduced independent sex workers who wanted to work with agencies or bookers to pertinent agency representatives or bookers. He recommended specific sex workers and explained the screening process to would-be customers. He made appointments for other customers and “vouched” for new customers to help them pass through screening processes.

Peters was also one of several creators of an advertising website for Korean sex workers in the greater Seattle area, KGirlDelights.com. Peters paid the website hosting fee for KGirlDelights.com and also purchased the .net and .org versions of the same domain name. Agency owners and independent sex workers sent Peters advertisements, which he posted on the website.

In the spring of 2015, the King County Sheriff’s Office and the Bellevue Police Department began a joint investigation into the Internet sex trade in the greater Seattle-Bellevue area. Detective Luke Hillman, working undercover as “LucasK1973,” created an account on The Review Board and noticed that Peters, under the name “Peter Rabbit,” was a frequent poster and appeared to be “kind of a leader.” Eventually, Peters invited Detective Hillman to join the League of Extraordinary Gentlemen. This proved unwise.

Peters was ultimately charged with nine counts of promoting prostitution in the second degree….

Peters was convicted, and challenged the conviction on various grounds, including the First Amendment. The Court of Appeals was not persuaded:

Speech that is intended to “incit[e] or produc[e] imminent lawless action and is likely to incite or produce such action” is not protected by the First Amendment. Brandenburg v. Ohio (1969). Our Supreme Court has determined that “the only kind of speech punished” by the prohibition of advancing prostitution, as defined by RCW 9A.88.060, is “[s]peech directed toward the persuasion of another to enter into an illegal arrangement.” Because such speech is intended to incite imminent lawless action (i.e., engaging in prostitution) and is likely to do so, it is not protected by the First Amendment.

Peters … [argues that] the speech for which he was prosecuted was not an offer to enter into an illegal arrangement but, rather, “the fact that he wrote detailed positive reviews describing his experiences with prostitutes, and referred others to sex workers upon his recommendation.” In support, Peters cites to Hess v. Indiana (1973). In Hess, the Supreme Court determined that a remark by an anti-war protestor could not be punished as disorderly conduct because, as the protestor’s words were not directed to anyone in particular, there was no evidence that the protestor’s words were intended and likely to produce “imminent disorder.” That holding does not aid Peters. Here, by contrast to Hess, Peters’ speech—detailed reviews meant to serve as advertisements and referrals to specific sex workers—was intended to and was likely to produce imminent violation of prostitution laws.

Because Peters’ speech was both intended to produce and likely to produce unlawful activity, prosecution based on this speech does not violate the First Amendment.

I think this analysis is likely mistaken, because from the facts it appears that he wasn’t encourage imminent unlawful activity, which is generally understood as calling for action within hours or at most days; rather, his speech was “advocacy of illegal action at some indefinite future time,” which is precisely what Hess says doesn’t qualify as incitement.

But it might well be specific enough (because it identifies particular prostitutes) to constitute solicitation of crime, a separate exception recognized by the Court in U.S. v. Williams (2008). Though the boundaries of that exception are unclear, it might well cover such speech; for more, see pp. 993-97 of my The “Speech Integral to Criminal Conduct” Exception article. Encouraging someone to kill a particular person or bomb a particular building may well be solicitation, even if the plan is to do it some time later; likewise for encouraging someone to patronize a particular prostitute. I think that prostitution ought to be legalized, but so long as it’s illegal, speech soliciting such transactions can likely be made illegal as well.

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