Category: reason

Above is a photograph of my stash of five at-home COVID-19 tests. After participating a conference in South Dakota in July where a lot of folks were ostentatiously unvaccinated, I used one so that if I tested positive I could quarantine myself to prevent infecting other people. Since I have been fully vaccinated since early March, I hoped that the results would be negative. Fortunately, they were. The cost of my test stockpile is $149.95.

Below is a photo showing a bin of at-home rapid Flowflex COVID-19 tests for sale for about $3.50 apiece at a supermarket in the Netherlands. The test is manufactured by a company headquartered in the U.S., but the Food and Drug Administration (FDA) has not approved it for sale here. In the bin below the Flowflex test, you’ll see another COVID-19 self-test offered by Roche. You can buy it in the Netherlands for about $4.90 per test. It too is not approved by the FDA.

The picture was tweeted by the Tufts Medical Center pediatrician Mark Dexter, who quite reasonably observes, “I don’t understand why we *still* don’t have these in the US!”

The answer is simple: From the beginning of the pandemic 20 months ago, hypercautious federal bureaucrats have massively bungled COVID-19 diagnostic testing. Way back in March 2020, I argued that the FDA should get out of the way of rapid at-home COVID-19 testing. Instead, the agency prevented private companies and academic labs from developing and deploying any COVID-19 tests. It especially took its sweet time approving at-home diagnostic tests. The first real at-home COVID-19 wasn’t finally approved until mid-December.

Making cheap, fast COVID-19 self-testing widely available could have dramatically reduced cases and deaths and enabled Americans to safely work, shop, travel, and entertain themselves just a few months into the pandemic. Bureaucratic incompetence ensured that this didn’t happen.

Demand for the expensive at-home COVID-19 tests approved by the FDA has outstripped in-store supplies as delta variant infections surged. Even at this late date, rolling out cheap rapid self-tests could significantly reduce transmission of the virus. If cheap rapid COVID-19 self-tests are good enough for Europeans, surely they are good enough for Americans.

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Australia’s highest court has upheld a controversial and potentially destructive ruling that media outlets are legally liable for defamatory statements posted by online commenters on Facebook, a decision that could result in massive amounts of online censorship out of fear of lawsuits.

The case revolves around a television program from 2016 on Australia’s ABC TV (no relation to America’s ABC network) about the mistreatment of youths in Australia’s jail system. Footage of Dylan Voller in a restraining chair was part of the coverage. When media outlets covered this program and posted links to the coverage on Facebook, users made comments about Voller, and this prompted Voller to sue the media outlets. The comments were defamatory, Voller claimed, and he argued that the media outlets themselves were responsible for publishing them.

The media outlets countered that, no, they were not the publishers of third-party comments on Facebook and were not responsible for what they said. The outlets have been appealing to the courts to toss out the lawsuits, and they’ve been losing.

Reason first reported on this case in 2020 as it worked its way up through the courts, and Wednesday’s decision from the High Court of Australia is the final stop: The country’s top justices determined that media outlets in the country are, indeed, publishers of the comments that users post on Facebook under stories that they link.

The logic here is absolutely terrible and destructive. Facebook has control over the tools for managing comments on media pages. The media outlets themselves do not, and they can’t “turn off” commenting on their Facebook pages. They do have the power to delete comments after the fact or use filtering tools that target keywords (to stop people from making profane or obscene comments) and can block individual users from the page.

Using these tools to try to prevent defamatory comments requires constant monitoring of the media outlet’s Facebook page and would demand that moderators be so agile as to remove potentially defamatory content the moment it appears before anybody else could see it. Nevertheless, the justices concluded that this is enough control over the comments for media outlets to be considered publishers. Two of the justices were very blunt that simply participating on Facebook made Fairfax Media Publications a publisher of the comments:

In sum, each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments.

Except, of course, that the extent to which media outlets may monitor or control third-party comments is completely in the hands of Facebook. Facebook decides how much a media outlet can block comments or users or whether people can comment at all.

Not all of the judges agreed. Justice James Edelman dissented from the other judges and noted the potentially dire consequences of this decision:

Merely allowing third-party access to one’s Facebook page is, of itself, insufficient to justify a factual conclusion that the Facebook page owner participated in the publication of all the third-party comments posted thereafter. Were it not so, all Facebook page owners, whether public or private, would be publishers of third-party comments posted on their Facebook pages, even those which were unwanted, unsolicited and entirely unpredicted. Indeed, it might extend to cases where a Facebook page is hacked and then has posted on it entirely unwelcome, uninvited and vile defamatory comments, whether by the hacker or in response to a post made by the hacker. It might also render Facebook itself, at common law, the publisher of all posts made on Facebook.

It is easy to assume, as these other justices apparently have, that such a decision could not possibly cause a disastrous amount of online censorship because media outlets should know when a controversial story might lead to defamatory comments. The judges actually note this in the ruling. They seem to think that this is only an issue with certain types of stories and that the appearance of defamatory comments can be predicted in advance.

This is complete rubbish, and anybody with any experience on social media already knows this. Trolls, scammers, and spammers range far and wide (that’s the point of them), and it’s incredibly naive to think that a story that has no controversial elements can’t end up with third parties posting defamatory nonsense under them.

Edelman has the right of it here, and it’s why Section 230 of the U.S. Communications Decency Act, which generally protects websites and social media platforms (and you) from liability for comments published by others, is so important. It’s not just to protect media outlets from being held liable for comments from trolls. It’s to allow social media participation to even happen at all. Some large media outlets or companies might be able to afford around-the-clock moderation to attempt to catch problems. But even if they could, let’s be clear that they’re going to avoid as much risk as possible and delete any comment that has a whiff of controversy. Why would they allow it to stand if it could get them sued?

But smaller companies and outlets—and there’s no reason to think this ruling applies only to media outlets—will either have to hope Facebook gives them better tools to control who posts on their page or just not have social media presences at all.

It’s a terrible ruling. The only positive here is that the courts have not yet ruled on whether the contested comments are actually defamatory. Subsequent rulings may clear Fairfax. But if courts decide that these random comments were defamatory, the downstream consequences will be disastrous for free speech. Expect to see commenting start to disappear across media platforms.

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I am happy to pass along an announcement for the Institute for Free Speech’s First Amendment Fellowship program:

The 2022 Institute for Free Speech Summer Associate Legal Fellowship is a unique opportunity for current law school students to explore a career in public interest and First Amendment law. The program is open to students who will finish their first or second year of law school by the summer of 2022.

Fellows are expected to work full time for 10 weeks in our Washington, D.C. headquarters, but other arrangements may be available to especially outstanding candidates.

Fellows are eligible to earn $10,000 in salary for their 10 weeks of employment.

During the fellowship, students will work with Institute for Free Speech attorneys for a portion of their time. Each fellow will also be expected to complete a project. Applicants are encouraged to be creative in suggesting a project as part of their application. While many projects may produce papers suitable for publication, we will consider any project related to protecting or advancing First Amendment rights.

The rolling submission deadline began on September 1.

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As I wrote about in early August, the California Legislature is set to enact a law providing such a definition, in a content-based, unconstitutionally broad restriction on speech outside vaccination centers. Since my post, the Assembly passed the bill as well, joining the Senate, though with a slight revision that changes the nature of the content discrimination—in a way that is even more definitively unconstitutional. The bill is now on the governor’s desk.

[1.] The bill begins:

(a) It is [a misdemeanor punishable by up to six months in jail and a fine of up to $1000] to knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.

Now that sounds modest: After all, it’s limited to approaching for the purpose of “obstructing” (defined as blocking access), “injuring,” “harassing,” “intimidating” (defined as making a true threat of physical harm), or “interfering with” (defined as restricting freedom of movement). Who can be in favor of that sort of behavior?

But wait—here’s how “harassing” is defined:

(c)(1) “Harassing” means knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area.

Such ordinary speech—familiar from a wide range of peaceful protests—would now be  criminal “harassment.” Yet the First Amendment of course protects speech on public sidewalks, including offering leaflets, displaying signs, or conveying oral messages to people who haven’t “consen[ted]” (whether because they haven’t thought about the matter, or even if they affirmatively don’t want to see the sign or hear the message).

In Hill v. Colorado (2000), the Court did uphold a restriction on “‘knowingly approach’ within eight feet of another person [near a medical facility], without that person’s consent, ‘for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.'” But the majority stressed that this stemmed from 8 feet being such a short distance:

Unlike the 15-foot zone [struck down in Schenck v. Pro-Choice Network (1997)], this 8-foot zone allows the speaker to communicate at a “normal conversational distance.”

Thirty feet, on the other hand, is very far from a “normal conversation distance”; and in McCullen v. Coakley (2014), the Court struck down a 35-foot buffer zone outside a clinic in part because

Continue reading “California Law Would Define “Harass” to Include Approaching Within 30 Feet to Give Leaflets to Strangers, or to Try to Speak to Them”

Last May, when the Centers for Disease Control and Prevention (CDC) decided that many Americans could relax their vigilant mask wearing, the leaders of the nation’s top teachers union were furious.

The National Education Association (NEA) swiftly intervened to ensure that the CDC would still advise masking in schools, regardless of vaccination status. According to documents obtained by Fox News, the NEA threatened to release a letter excoriating the CDC’s guidance. This prompted government health officials to clarify that masks should still be worn in all schools.

The NEA’s meddling is unsurprising: Earlier this year, teachers unions mounted a similar effort to persuade the Biden White House to slow down on school reopening. This is the role the teachers unions have claimed for themselves throughout the pandemic: create obstacles to prevent children’s lives from returning to normal for as long as possible. It’s a role that American Federation of Teachers President Randi Weingarten clearly relishes. Her Twitter feed is filled with demands that students be masked, distanced, and quarantined as often as necessary.

It’s worth noting that masks are of dubious importance for school children. There’s scant evidence that putting kids in masks makes them any safer from the ill effects of COVID-19. New York magazine’s David Zweig reviewed 17 different studies cited by the CDC and found little reason to believe that masks were making a difference in schools. (Better ventilation seemed to be the much more important mitigation strategy.) Young people, after all, are at extremely low risk of suffering a negative health outcome associated with COVID-19. The disease has claimed the lives of fewer than 400 people under the age of 18, many of them with underlying health problems. For most kids, COVID-19 does not pose a greater statistical risk than the flu—masks just don’t matter.

Before the widespread availability of vaccines, masks might have been important to prevent students from unwittingly spreading the disease to vulnerable adults. But it’s now trivially easy for school staff members to get the vaccine and reduce their risk of hospitalization and death to almost nothing. The students are overwhelmingly safe—because they are young people—and the teachers and staff are also safe—because they can take the vaccine. Schools can implement additional strategies for good measure, like opening the windows and having lunch outside, weather permitting. Masks are much more trouble, especially if kids are expected to wear them until some distant point in the future—possibly forever—when COVID-19 is gone completely.

“The negatives [of masks] are not zero, especially for young children,” Lloyd Fisher, the president of the Massachusetts chapter of the American Academy of Pediatrics, told Zweig. “It is important for children to see facial expressions of their peers and the adults around them in order to learn social cues and understand how to read emotions.”

Weingarten and company act as if it would be insane to reopen a school without a mask mandate, and have lashed out at Republican officials like Florida Gov. Ron DeSantis for prohibiting such requirements. But the U.S. is somewhat alone in its zeal for placing masks on school children. As The New York Times recently conceded, most students and teachers in the U.K. do not wear masks at all—and the situation is much the same in Ireland, France, Italy, and Switzerland.

Teachers unions and their allies must have missed this memo. Indeed, former Education Secretary Arne Duncan implicitly suggested that DeSantis had blood on his hands, following the deaths of more than a dozen Florida educators from COVID-19.

Please take a minute to fully understand this: our teachers are being killed right now at a much higher rate than our soldiers.
What the Governor of Florida has done to the residents of his state is incomprehensible. https://t.co/klNLKjTWEQ

— Arne Duncan (@arneduncan) September 5, 2021

These deaths are tragic. But it is simply not true that a lack of mask mandates is killing Florida teachers. What’s killing Florida teachers—and practically everyone else who suffers a negative health outcome due to COVID-19—is a lack of vaccination. Of the 15 who passed away, at least 13 were unvaccinated (information for the other two was not available, though it’s likely they were unvaccinated as well). It’s reasonable to criticize DeSantis for his efforts to prevent public institutions from requiring employees to get vaccinated, but the dearth of mask mandates has largely taken center stage.

The Food and Drug Administration should move much faster to approve vaccines for young kids so that families have the option of additional, over-the-top protection. But there’s no compelling reason to make students experience further hardship while waiting for that day to come. Why are teachers unions behaving otherwise?

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California is set to outlaw unannounced condom removal. A bill that passed the California legislature earlier this week and now awaits Gov. Gavin Newsom’s signature would be the first in the country to make such “stealthing” a cause for legal action.

But the measure (Assembly Bill 453) will not work through the state’s criminal code. Rather, removing a condom without a sexual partner’s verbal consent will become grounds for a civil lawsuit and punitive damages, with the act added to the state’s civil definition of sexual battery.

Under A.B. 453, “a person commits a sexual battery who causes contact between a sexual organ, from which a condom has been removed, and the intimate part of another who did not verbally consent to the condom being removed.”

In effect, it creates an affirmative consent rule for condom removal.

Supporters of the legislation say that consenting to safe sex doesn’t mean consenting to sex without a condom. Thus, furtively removing a condom before or during sexual activity amounts to rape.

Yet determining who is telling the truth in such cases will be incredibly tricky. If nothing else, this seems like a very difficult claim to prove in court. (“How the fuck is this enforceable?” comments Nancy Rommelmann on Twitter. “It’s not.”)

Even folks who agree with the theory behind the law note that proving an offense may be impossible.

Regulating sexual conduct is a pain practice, since usually there are only two people present, the accuser and accused. But in theory, makes perfect sense: if sex if consented to conditional on a condom being worn, removal would result in sex without consent.

— King Haris (@kingharis) September 9, 2021

And what if someone never puts on a condom in the first place but their partner mistakenly thinks they did—could that partner still sue? Will the law punish people who inadvertently lose a condom during sex? Won’t people sued under the law simply claim this is what happened?

All in all, enforcement here seems like a logistical nightmare. That’s not necessarily a reason to oppose the law. (Proving sexual assault claims in general can be difficult, of course.) But it does suggest that the measure may be more symbolic than anything else.

It also means the measure could be ripe for abuse—disproportionately wielded against the same parties who routinely suffer most under U.S. laws.

In any event, it seems at odds with California’s 2017 move to reduce penalties for knowingly exposing someone to HIV.

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FREE MINDS

9/11’s domestic law enforcement legacy. As we approach the 20th anniversary of the September 11 attacks, a slew of articles looks at how they entrenched America’s surveillance state within our own borders.

“The rich nations of Europe and North America are liberal democracies, but their governments are also ferociously efficient repression machines.”https://t.co/RRgN4wjcCP

— Foreign Affairs (@ForeignAffairs) September 8, 2021

From Foreign Affairs:

Spectacular though the 9/11 attacks were, they did not, as many feared, indicate that large and powerful terrorist organizations had laid down roots in the West and threatened the foundations of its social order. Meanwhile, the persistent fear of that outcome—which was never likely—has blinded many to an opposing trend: the steadily growing coercive power of the technocratic state. With artificial intelligence already entrenching this advantage, the threat of a major armed rebellion, in developed countries at least, is becoming virtually nonexistent.

In New York City, cops use war-on-terror tools against minor crime suspects and innocent people. The New York Times details some of these:

New Yorkers simply going about their daily lives routinely encounter post-9/11 digital surveillance tools like facial recognition software, license plate readers or mobile X-ray vans that can see through car doors. Surveillance drones hover above mass demonstrations and protesters say they have been questioned by antiterrorism officers after marches. The department’s Intelligence Division, redesigned in 2002 to confront Al Qaeda operatives, now uses antiterror tactics to fight gang violence and street crime.

This is always the case.

DA in Salt Lake threatens two women who threw paint w life using a broadly-written anti-gang law.

PATRIOT Act’s anti-terror “sneak and peek” warrants are used almost solely in routine drug cases.

Etc., etc. https://t.co/guUqVtHQb3

— John Pfaff (@JohnFPfaff) September 8, 2021

And be sure to check out Reason‘s recent content reflecting on the domestic legacy of 9/11:

• America’s Post-9/11 Surveillance Authorities Were Inevitably Turned Against Its Own Citizens

• The Department of Homeland Security’s Creators Promised Efficiency. They Delivered Disaster.

• Spencer Ackerman: How 9/11 Destabilized America and Produced Trump

• My Generation Inherited the Aftermath of 9/11

• 9/11’s Lesson: War Doesn’t Work

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FREE MARKETS

America still lags way behind many countries on at-home COVID-19 testing:

What makes the FDAs failure to approve more rapid antigen tests even more galling is that the test being sold cheaply in the Amsterdam supermarket is the Flowflex, an American test made by Acon Labs in San Diego. https://t.co/lqpLAGBSUd

— Alex Tabarrok (@ATabarrok) September 7, 2021

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QUICK HITS

• Next month, Supreme Court justices will return to the courtroom for the first time since the start of the pandemic.

• Another court has ruled against Florida’s ban on mask mandates in schools. “Leon County Circuit Judge John C. Cooper again sided with parents who said an executive order from DeSantis (R) overstepped the state’s authority in restricting school districts from requiring masks,” The Washington Post reports.

• Los Angeles Unified School District will vote today on whether to require COVID-19 vaccines for all students ages 12 and up.

• Ohio’s capital city is requiring masks in indoor spaces again.

• SCOTUS has intervened to delay the execution of John Ramirez:

BREAKING: The Supreme Court halts the execution of John Ramirez so that the court can fully consider Ramirez's request that Texas allow his pastor to audibly pray and lay hands on him during the execution. Before SCOTUS' intervention, the execution had been set for tonight. pic.twitter.com/sDp73zkAIJ

— SCOTUSblog (@SCOTUSblog) September 9, 2021

• Why defense lawyers in the Backpage case have already asked for a mistrial to be declared. (The judge yesterday denied the request.)

• The Los Angeles Police Department’s social media policies raise alarms.

• North Carolina regulators come for Flying Dog beer.

• Australians on lockdown have their alcohol consumption policed.

• Why are so many languages dying out?

• The Innocence Project recommends memoirs by wrongly convicted writers:

Writing is such a powerful tool of expression and reflection for so many incarcerated and wrongly convicted people. On #LiteracyDay, we recommend these incredible memoirs. https://t.co/o310ggiaFy

— The Innocence Project (@innocence) September 8, 2021

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