Category: reason

Today two Democratic members of Congress sent letters to the presidents of Comcast, AT&T, Verizon, Cox, Dish, and other cable and satellite companies implying that they should either stop carrying Fox News, One America News Network, and Newsmax or pressure them to change their coverage. According to the lawmakers, these conservative channels are responsible for promoting misinformation and political violence.

“To our knowledge, the cable, satellite, and over-the-top companies that disseminate these media outlets to American viewers have done nothing in response to the misinformation aired by these outlets,” wrote Reps. Anna Eshoo and Jerry McNerney, both of California.

Released in advance of the House Committee on Energy and Commerce’s Wednesday hearing on “Disinformation and Extremism in the Media,” the letter makes clear that some lawmakers do not want television providers to let their customers watch conservative news channels. (Disclaimer: I am interviewed regularly on Fox News and Newsmax.) Eshoo and McNerney ask the companies to explain the “moral and ethical principles” that undergird their decisionmaking with respect to which channels are carried, how many viewers tuned in to these channels during the four weeks before the the Capitol riots on January 6, 2020, and what steps were taken to “monitor, respond to, and reduce the spread of disinformation.”

“The committee members also sent the letter to Roku, Amazon, Apple, Google and Hulu, digital companies that distribute cable programming,” reports The New York Times.

False claims do appear with some frequency on conservative news channels, streaming services, and social media. But they also appear in The New York Times, on CNN, and in other mainstream information outlets. The traditional remedy to misinformation is to file a defamation lawsuit. The federal government does not need to involve itself.

On the contrary, the First Amendment prohibits Congress from infringing on free speech—and that includes the freedom of provide companies to decide what kind of speech appears on their platforms. Politicians are not in charge of setting the parameters for acceptable speech on the internet and television. That responsibility devolves to individual companies and individual viewers.

Make no mistake: The letter to television providers was an act of intimidation. This behavior is equally unacceptable when Republicans do it: Calls to regulate tech companies because Facebook, Twitter, and Google make moderation decisions that irritate conservatives are also threats to free speech. Members of both political parties are intent on wielding their power to curb the speech of their adversaries, which is precisely why the government does not—and should not—have the power to compel or censor speech.

Comcast, not Congress, gets to decide whether to carry Newsmax. Mark Zuckerberg, not Cognress, gets to decide whether Facebook will deplatform a COVID-19 denialist. Jack Dorsey, not Congress, gets to decide whether Twitter will ban Alex Jones. That’s the plain meaning of the First Amendment.

As the words “misinformation” and “disinformation” come to refer not to just clear falsehoods but to information that is contentious, disputed, or highly partisan but nevertheless true, it is important to reject the idea that there is a “fake news” exception to the First Amendment. If a statement is libelous, then an outlet can be sued for printing it. If it contains a call to violence, platforms may have some legal responsibility to take action against it. But the First Amendment’s protections are extremely robust, and the government may not criminalize the dissemination of information that is merely wrong or uninformed. Such a move would imperil not just right-wing news channels, but all speech that criticizes the government.

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Newly identified COVID-19 cases have fallen dramatically in both the United States and the United Kingdom since early-to-mid January, notwithstanding strikingly different government policies aimed at controlling the pandemic. The comparison casts further doubt on the assumption that broad legal restrictions play a crucial role in reducing virus transmission.

Despite the lockdowns that all but a few governors imposed last spring, the United States has seen more COVID-19 deaths per capita than the vast majority of countries. But it still has fared better than several European countries that imposed wider and more prolonged legal restrictions. The countries with higher death rates include the U.K, which has gone through several rounds of national lockdowns.

In early November, the Prime Minister Boris Johnson responded to surging infections with a new lockdown that closed most businesses, banned indoor gatherings of two or more people from different households, and required everyone to stay home without a “reasonable excuse.” The rules were loosened in early December, then tightened again the week before Christmas. While the United States also saw a big increase in daily new cases in the fall and winter, it did not lead to anything like the nationwide lockdown imposed in the U.K., although some states did tighten their restrictions on social and economic activity.

Despite the stark difference in policy, both countries saw remarkably similar COVID-19 trends this winter. According to Worldometer’s numbers, the seven-day average of new cases peaked in the U.K. on January 9; it peaked in the U.S. two days later. That number then fell sharply in both countries. As of yesterday, it was down 81 percent in the U.K. and 73 percent in the U.S.

Daily deaths are also falling in both countries. As of yesterday, the seven-day average in the U.K. was down 61 percent from the peak on January 23. In the U.S., it was down 43 percent from the peak on January 26. Given the dramatic drop in daily new cases that began more than a month ago, daily deaths should continue to fall.

“British experts attribute the decline to a strict national lockdown,” The New York Times reports. “Vaccines don’t explain it: Even though a quarter of the population has been vaccinated, only the earliest recipients had significant protection by Jan. 10, when cases there started to drop. Those early doses mostly went to health-care workers and elderly patients already in the hospital.”

What about the United States? “Although the United States did not impose a national lockdown, voluntary changes in behavior, along with some degree of immunity in hard-hit communities, may have helped prevent an even worse outcome after the holidays,” the Times says, citing Johns Hopkins epidemiologist Caitlin Rivers. “During the winter, when things were getting really bad, I think people saw how bad things were getting in their community and made different choices,” Rivers told the Times. “They canceled gatherings, they stayed home more, they reached for the mask, and those things really do help, put together, to reduce transmission.”

Here in the United States, Rivers thinks voluntary precautions were largely responsible for reversing the upward trends in cases and deaths. Yet in the U.K., according to the Times, “British experts” are crediting the government’s decisive action. While Americans chose to be more cautious, in other words, Brits had to be forced. The premise that U.K. residents are more reckless than Americans and less inclined to comply with COVID-19 safeguards seems implausible, although it is convenient for lockdown enthusiasts.

The same story of starkly different policies and similar outcomes emerges from a comparison of Texas and California, the two most populous states. While California Gov. Gavin Newsom ordered a new lockdown on December 3, Texas Gov. Greg Abbott did not impose new restrictions, and the state remained largely open. Yet since mid-January, the two states have seen almost the same drop in the seven-day average of newly reported cases, which has fallen by 85 percent in California and 81 percent in Texas.

Notwithstanding its much stricter regulations, California saw a bigger increase in new infections during December and January, when the seven-day average tripled. In Texas during the same period, the average doubled. Nationwide in the United States, the average rose 50 percent. In the U.K., it quadrupled.

Since politicians are more inclined to impose restrictions when they see infections rising dramatically, it is not surprising that Johnson and Newsom decided new lockdowns were necessary. But on the face of it, those policies, despite the economic and social costs they entailed, were not actually necessary to bring case numbers back down. Since jurisdictions that took a much looser approach saw similar declines around the same time, it seems official commands do not play as important a role in reducing the spread of COVID-19 as many politicians imagine.

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Today the Supreme Court denied a petition for certiorari in Bridge Aina Le’a v. Hawaii Land Use Commission. This case invited the Court to reconsider the Penn Central balancing test which is applied to more regulatory takings claims under the Fifth Amendment’s Takings Clause. Alas, this was an invitation the Court declined to accept.

Justice Thomas issued a brief solo opinion dissenting from the denial of certiorari explaining why, in his view, the time is right to reconsider Penn Central. Of note, he cites a range of scholarship, from scholars across the ideological spectrum, expressing dissatisfaction with the Penn Central factors. I reproduce his dissent below.

I recently explained that “it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.” Murr v. Wisconsin, 582 U. S. ___, ___ (2017) (dissenting opinion) (slip op., at 1).

Our current regulatory takings jurisprudence leaves much to be desired. A regulation effects a taking, we have said, whenever it “goes too far.” Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393, 415 (1922). This occurs categorically whenever a regulation requires a physical intrusion, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S.
419 (1982), or leaves land “without economically beneficial or productive options for its use,” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1018 (1992). But such
cases are exceedingly rare. See, e.g., Brown & Merriam, On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claim, 102 Iowa L. Rev. 1847, 1849–1850 (2017) (noting that in more than 1,700 cases over a 25-year period, there were only 27 successful takings claims under Lucas—a success rate of just 1.6%). For all other regulatory takings claims, the Court has “generally eschewed any set formula for determining how far is too far,” requiring lower courts instead “to engage in essentially ad hoc, factual inquiries.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U. S. 302, 326 (2002) (internal quotation marks omitted). Factors might include (1) “[t]he economic impact of the regulation on the claimant,” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations,” and (3) “the character of the governmental action.” Penn Central Transp. Co. v. New York City, 438 U. S. 104, 124 (1978); see also Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 538–539 (2005). But courts must also “‘weig[h] . . . all the relevant circumstances.'” Tahoe-Sierra Pres. Council, 535 U. S., at 322. As one might imagine, nobody—not States, not property owners, not courts, nor juries—has any idea how to apply this standardless standard.

This case illustrates the point. After an 8-day trial and with the benefit of jury instructions endorsed by both parties, the jury found a taking. The District Court, in turn, concluded that there was an adequate factual basis for this verdict. But the Ninth Circuit on appeal reweighed and reevaluated the same facts under the same legal tests to conclude that no reasonable jury could have found a taking. These starkly different outcomes based on the application of the same law indicate that we have still not provided courts with a “workable standard.” Pomeroy, Penn Central After 35 Years: A Three Part Balancing Test or One Strike Rule? 22 Fed. Cir. B. J. 677, 678 (2013). The current doctrine is “so vague and indeterminate that it invites unprincipled, subjective decision making” dependent upon the decisionmaker. Echeverria, Is the Penn Central Three-Factor Test Ready for History’s Dustbin? 52 Land Use L. & Zon. Dig. 3, 7 (2000); see also Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Pa. St. L. Rev. 601, 602 (2014) (“[T]he doctrine has become a compilation of moving parts that are neither individually coherent nor collectively compatible”). A know-it-when-you-see-it test is no good if one court sees it and another does not.

Next year will mark a “century since Mahon,” during which this “Court for the most part has refrained from” providing “definitive rules.” Murr, 582 U. S., at ___ (slip op., at 7). It is time to give more than just “some, but not too specific, guidance.” Palazzolo v. Rhode Island, 533 U. S. 606, 617 (2001). If there is no such thing as a regulatory
taking, we should say so. And if there is, we should make clear when one occurs.
I respectfully dissent.

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In an unsigned on-sentence order issued earlier today, the Supreme Court is allowing New York state prosecutors to obtain former President Donald Trump’s tax returns. Here’s the order in all its glory:

The application for a stay presented to Justice Breyer and referred to the Court is denied.

There are no concurring opinions or recorded dissents to the order. The ruling is not a surprise, because it is a natural outgrowth of the Court’s 7-2 ruling in Trump v. Vance last year, where the majority made clear that presidents have no special right to prevent state prosecutors from issuing criminal subpoenas to access their tax returns (though they can still raise the same objections as are available to ordinary citizens targeted by similar investigations). And, at this point, of course, Trump is no longer president, so any special privileges associated with that office would no longer apply in any case.

This ruling doesn’t necessarily mean that Trump will be charged with any financial crimes as a result, much less convicted. But it will make it easier for New York prosecutors to find any evidence of such criminality, if it is out there. And, given Trump’s history, few informed observers would be surprised if it turned out he engaged in some illegal activity here.

Trump v. Vance should not be confused with Trump v. Mazars, a more complex decision issued the same day, addressing the power of congressional committees to subpoena presidential tax returns. In Mazars, the Court rejected Trump’s extreme position that Congress had virtually no power to subpoena presidential tax returns. But it also didn’t unequivocally side with the Democratic-controlled House of Representatives. Instead, a 7-2 majority created a complex balancing test. I critiqued that test and suggested what I think is a superior alternative here.

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It’s housing legislation season in California, where state lawmakers have introduced a flurry of red-tape-slashing bills aimed at kickstarting new development.

“California’s severe housing shortage—in the millions—is severely harming our state, and we must take firm actions to help create more housing,” said state Sen. Scott Wiener (D–San Francisco). “We need multiple strategies to help end our housing shortage, including empowering cities to build more housing, funding affordable housing, and ensuring that cities are taking necessary steps to meet their housing goals.”

The headline-grabbing housing fights of the past three years have been overly ambitious, ultimately failed bills co-authored by Wiener, first S.B. 827 and then S.B. 50, that would have preempted local restrictions to allow mid-rise apartments near transit and fourplexes almost everywhere else.

This time, “yes in my backyard” (YIMBY) lawmakers and activists are instead focusing on more modest, wonkier bills that would collect data on the effect of past reforms, pare back more obscure regulations, and make it easier for local governments to ditch their own restrictions on new housing.

One of these bills, S.B. 10, would let cities skip time-consuming, resource-intensive environmental reviews normally mandated by state law when zoning for “missing middle” housing of up to 10 units in areas with lots of jobs or frequent public transit service.

Those environmental reviews can take years and cost millions of dollars. Worse still, the process allows third parties—whether they’re neighborhood groups, labor unions, or individual gadflies—to sue if they think a proposed rezoning’s environmental impacts weren’t studied thoroughly enough, which can hold things up for even longer.

“We’re talking about more light-touch density. You can make a real argument that that kind of housing does not need the same kind of environmental scrutiny,” Wiener told Reason in January. “It allows cities to do what they want to do, or need to do, quickly and not have to spend ten years doing [environmental impact reports] and getting sued.”

Last month, the Sacramento City Council unanimously approved a draft plan to allow up to four-unit homes in all residential areas currently zoned for single-family housing. Local officials in San Francisco and Berkeley have proposed similar ideas.

Should S.B. 10 pass, it could make it easier for these cities to finalize rezonings without having to spend years conducting environmental reviews and fending off lawsuits.

The bill passed rapidly through the state Senate last year, but failed in the state Assembly over what Wiener says were bad inter-chamber dynamics that had little to do with policy. He’s optimistic about S.B. 10’s changes this year, noting that even some legislators who were skeptical of the state preemptions in bills like S.B. 50 supported it because it gave cities more flexibility.

While that bill would make it easier for cities to allow housing, another of Wiener’s proposals would make it harder for them to get away with preventing new housing development.

That bill, S.B. 478, would require localities to allow a floor area ratio (FAR), the ratio of developed floor space to the plot it’s built on, of a least 1.5 on residential land zoned for housing developments of two to ten units. This is to combat a devious tactic used by cities whereby they upzone land on paper, but effectively prevent denser development by imposing tight FAR regulations.

The bill would also cap localities’ minimum lot size requirements, which often require developers to use more land than they otherwise would, limiting density and driving up prices.

The importance of both pieces of legislation is highlighted by California’s ongoing Regional Housing Needs Adjustment (RHNA) process, whereby the state requires regions and localities to plan for enough housing to meet projected future needs.

In 2020, the California Department of Housing and Community Development came out with planning quotas that will require cities and counties across the state to allow a lot more housing than they currently do.

A bill like S.B. 10 will make life easier for local governments by streamlining the rezonings they’ll have to do to comply with new, higher RHNA quotas. S.B. 478 will make it harder for local governments to cheat on those quotas by upzoning in theory but still leaving in place development-killing regulations.

“A lot of cities are already saying we have enough capacity. We don’t have to change our zoning. If you look carefully at the rules and regulations it’s really not true,” says Sonja Trauss, the executive director of YIMBY Law. “When you look at the setback requirements and the open space requirements, by the time you go through every regulation, you can’t really build ten units there, you can only build two.”

The other two bills in Wiener’s housing package include one that would spend $100 million on housing for at-risk youth, and another that would have the state collect more data on the effects of past housing laws.

California regulated its way into having the highest rents and home prices in the country. Undoing that bureaucratic detritus requires reformers to propose some regulatory minutiae of their own.

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Here’s “Dane-geld” (1911) by Rudyard Kipling (1865-1936):

It is always a temptation to an armed and agile nation
To call upon a neighbour and to say: —
“We invaded you last night–we are quite prepared to fight,
Unless you pay us cash to go away.”

And that is called asking for Dane-geld,
And the people who ask it explain
That you’ve only to pay ’em the Dane-geld
And then you’ll get rid of the Dane!…

For the rest of my “Sasha Reads” playlist, click here. Past poems are:

1. “Ulysses” by Alfred, Lord Tennyson
2. “The Pulley” by George Herbert
3. “Harmonie du soir” (“Evening Harmony”) by Charles Baudelaire
4. “Dirge Without Music” by Edna St. Vincent Millay
5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova
7. “The Jumblies” by Edward Lear
8. “The Conqueror Worm” by Edgar Allan Poe
9. “Les Djinns” (“The Jinns”) by Victor Hugo
10. “I Have a Rendezvous with Death” by Alan Seeger
11. “When I Was One-and-Twenty” by A.E. Housman
12. “Узник” (“Uznik”, “The Prisoner” or “The Captive”) by Aleksandr Pushkin
13. “God’s Grandeur” by Gerard Manley Hopkins
14. “The Song of Wandering Aengus” by William Butler Yeats
15. “Je crains pas ça tellment” (“I’m not that scard about”) by Raymond Queneau
16. “The Naming of Cats” by T.S. Eliot
17. “The reticent volcano keeps…” by Emily Dickinson
18. “Она” (“Ona”, “She”) by Zinaida Gippius
19. “Would I Be Shrived?” by John D. Swain
20. “Evolution” by Langdon Smith
21. “Chanson d’automne” by Oscar Milosz
22. “love is more thicker than forget” by e.e. cummings
23. “My Three Loves” by Henry S. Leigh
24. “Я мечтою ловил уходящие тени” (“Ia mechtoiu lovil ukhodiashchie teni”, “With my dreams I caught the departing shadows”) by Konstantin Balmont

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