Category: reason

Mask mandates aren’t quite back, but we appear to be headed in that direction. Yesterday, the Centers for Disease Control and Prevention (CDC) issued renewed guidance that even vaccinated people should be masking up indoors, if they live in areas “of substantial or high transmission.” The CDC also says that vaccinated people exposed to someone with the coronavirus should be tested and quarantine. And it recommends “universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.”

The updated guidance was issued over concerns that the delta variant of COVID-19 may be spread by vaccinated people. The science on this is still out.

Even folks who have heretofore been amenable to most CDC guidance seem a bit baffled by the latest update.

“For most of the pandemic, the CDC’s guidance has felt reasonable,” writes Oliver Darcy in CNN’s Reliable Sources newsletter:

It made sense to wear masks when vaccines weren’t available and the public had no other ability to protect itself … But we are in a very different situation now with some swaths of the country hitting high rates of vaccination, and others with dismally low rates. The disparity in vaccination rates means that a positive case in a state like New York is far different than a positive case in a state like Louisiana. The CDC’s own hospitalization data bears this out: Louisiana is seeing a spike in hospitalizations while New York is not. And yet, the CDC’s latest guidance treats parts of New York exactly the same way it treats Louisiana. It doesn’t make much sense…

Policies like this should be challenged and tested. Gov’t officials should face reasonable questions about the guidance they are issuing. An easy one: Why isn’t the CDC basing its recommendations on hospitalization rates versus case counts? Another: How did the CDC determine that 50 new cases per 100,000 amounts to ‘substantial’ transmission?

Overall, application of the new guidance seems unlikely to jibe with actual threat levels, as areas with high vaccination rates—which also tend to be largely liberal areas—are most likely to impose new rules, despite low hospitalization rates, and the people most likely to follow the CDC’s new guidance seem to be those least likely to benefit from it.

The New York Times called the latest CDC guidance “a confusing message,” with David Leonhardt writing that “the C.D.C. has both a polarization problem and a communication problem.”

High transmission is occurring in places where people have been most resistant to vaccination and mask wearing already. “Who, then, is most likely to listen to the C.D.C.’s new request that vaccinated people wear masks indoors?” asks Leonhardt. “People who live in the places where it will do the least good.”

But so long as this stays in the realm of guidance, not mandates, maybe that’s OK.

“50/50 masked/unmasked at a Whole Foods in Manhattan tonight. Seems right,” tweeted CNN’s Brian Stelter. “Give people the most up to date info, then let them make their own risk assessments. This is all about risk tolerance.”

Indeed, “to suggest that Covid-19 is an escalating emergency in the United States is not quite right,” writes Aaron E. Carroll, chief health officer for Indiana University. “The truth is that the vaccinated and the unvaccinated are experiencing two very different pandemics right now. If we don’t confront that, the nation can’t address either appropriately.”

That’s where the CDC guidance truly fails.

“CDC messaging is astonishingly bad here,” suggests cardiologist and CNN medical analyst Jonathan Reiner. “Instead of clearly articulating the problem which is 80 million adults have chosen not to get vaccinated and they are largely also unmasked, CDC suggests that the problem is rare transmission from vaxed to unvaxed people. This is so wrong.”

Meanwhile, the U.K. reports some encouraging news about delta variant transmission:

JPMORGAN: UK COVID cases “have more than halved in ten days. What explains this dramatic reversal? .. We are not the only people struggling to explain.. it is hard to argue against the idea that the current Delta wave .. is turning out to be much, much milder than we anticipated” pic.twitter.com/CocX4FWcpw

— Carl Quintanilla (@carlquintanilla) July 28, 2021

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FREE MINDS

The Justice Department seized a rare cuneiform tablet from Hobby Lobby:

Inbox: DOJ seizes the Epic of Gilgamesh from Hobby Lobby pic.twitter.com/kUEDCBcnv4

— Matt Ford (@fordm) July 27, 2021

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FREE MARKETS

Teen hiring slows, adult hiring rises in states that ended federal unemployment benefits. “The 20 Republican-led states that reduced unemployment benefits in June did not see an immediate spike in overall hiring, but early evidence suggests something did change: The teen hiring boom slowed in those states, and workers 25 and older returned to work more quickly,” reports The Washington Post. More:

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QUICK HITS

Don’t look now but New York is closing in on one of its lowest July homicide rates on record. pic.twitter.com/u87UUbvhyj

— Joel Wertheimer (@Wertwhile) July 27, 2021

• How drug warriors made the opioid epidemic deadlier.

• A New Jersey town has dropped its obscenity case against a woman who had “fuck Biden” signs in her front yard.

VICTORY! The court dismissed charges for our client who was criminalized for displaying “Fuck Biden” signs outside her home.

The town asked the court to dismiss the case and accepted what we’ve been saying all along: it's your right to express dissent, even with strong language. pic.twitter.com/MW47Og7DgU

— ACLU of New Jersey (@ACLUNJ) July 27, 2021

• In Afghanistan, “what could’ve been a promising end to another bloody theater of U.S. involvement in the Middle East is actually an anticlimactic maintenance of the status quo,” writes Reason‘s Fiona Harrigan.

• The latest on vaccine mandates: Biden is considering a vaccine mandate or regular mandatory testing for federal employees. New York City and California will require them (or weekly testing) of government employees. Meanwhile, in the private sector, The Washington Post has instituted a vaccine mandate:

Washington Post publisher Fred Ryan announces new vaccination policy “is to require all Washington Post employees to demonstrate proof of full COVID-19 vaccination as a condition of employment.”

— Marc Fisher (@mffisher) July 27, 2021

• California residents expected to vote in the state’s September recall election are divided on whether Democratic Gov. Gavin Newsom should be removed from office.

• Reason‘s Stephanie Slade has more on 303 Creative LLC v. Elenis, in which “a divided three-judge panel found that designing a custom wedding website is ‘pure speech.'”

• Walmart is expanding its free college tuition program for employees.

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Two recent tech stories—both appearing in Reuters—should make civil libertarians wary for the future: Social media sites and tech companies are partnering with watchdog groups and law enforcement to share information about so-called extremists using their platforms.

PayPal, for instance, will work with the Anti-Defamation League (ADL) to identify hate groups that use the platform to raise funds. Recall that the company previously denied accused rioters facing charges relating to the January 6 Capitol attack the ability to solicit donations for their defenses: It would seem that PayPal’s plan is to facilitate even fewer of these transactions. This is potentially concerning since the ADL defines hateful content in the broadest possible terms.

Meanwhile, Facebook, Twitter, YouTube, and other sites will be expanding their use of a centralized database that compiles extremist content for the purposes of coordinated de-platforming. At present, the sites collude to take down content that promotes Islamic terrorism—ISIS and the Taliban, for instance—but in the future, it could be deployed against right-wing extremism as well.

“As the database expands, the risks of mistaken takedown only increase,” said Emma Llanso, director of Free Expression at the Center for Democracy & Technology.

In both of these cases, information may eventually be shared with law enforcement.

Users of tech platforms obviously don’t enjoy full free speech and due process protections, since private corporations are not bound to follow the Constitution. But to the extent that federal authorities are encouraging these changes—more coordinated takedowns, the collection of data, and an overly broad definition of what counts as extremist—we have the right to speak out against government encroachment.

This week, I am guest-hosting The Hill‘s YouTube show, Rising, and talked about these issues:

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In recent years, I have often found myself defending unpopular and unconventional legal views. For example, I argued that the President was not subject to the Foreign Emoluments Clause. I thought the private plaintiffs in California v. Texas had standing-through-inseverability. I claimed that President Obama’s deferred action policies violate the Constitution’s Take Care Clause. During President Trump’s first impeachment trial, I contended that he engaged in politics, not bribery. During President Trump’s second impeachment, I wrote that First Amendment should constrain the proceedings. And so on. At this point in my career, I am fairly accustomed to holding unorthodox positions, even where those views put me at odds with scholars in my own camp. So be it.

Still, I maintain something of a checklist to ensure that I have not gone astray. My internal Turing test is not a failsafe. But it keeps me sane.

First, I place myself behind the proverbial veil of ignorance, and ask whether I would hold this view without regard to the specifics of the current controversy. Often, that inquiry is easier: I had reached the view before the controversy arose. Other times, it is tougher, because the issue was so novel that no one—not even me—had considered it before.

I refer to the second checkpoint as the “scruffy-bearded weirdo” test. In Texas v. Johnson, Justice Scalia cast the fifth vote to halt a law that banned flag burning. But Scalia’s constitutional commitments differed from his policy preferences. “If it were up to me,” he said, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag.” But, Scalia admitted, “I am not king.” This Scalia quote has always resonated with me. I routinely ask myself whether my legal positions line up with my policy preferences. If they do, I redouble my efforts to ferret out motivated reasoning. But if my legal positions diverge from my police preferences, I feel more comfortable that I’d let the “scruffy-bearded weirdo” torch old glory.

The final guardrail focuses on whether I can, with full conviction, debate in favor of that position. I recognize that lawyers are skilled at arguing just about any side of just about any position. Law professors are in a unique position where we don’t have to serve as hired guns. We can pick and choose which sides we advocate for. Or we can advocate for nothing at all. The perks of the job are nice. I am very careful about the positions I take. If I am not certain about some position, I will say so. Or more likely, I will stay quiet. Nota bene: if there is ever some contentious issue on which I do not opine, it’s likely that the project did not tick the third checkbox.

I don’t pretend my work will always satisfy all three guardrails. Sometimes I’m sloppy. Other times I can drink my own Kool-Aid—the homebrew flavor can be quite intoxicating. But I always try, to my best efforts, to carefully think through an argument before I advocate for it.

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Children are a never-ending well of interpretive puzzles and delights. A few days ago, I was standing in the kitchen with my four-year-old when he asked me, “Is there anything in the oven?” I said no. Now that was not literally true. Inside there were heating elements, as well as two oven racks, though one could say that those were just part of the oven. But I also knew that hanging from the bottom oven rack there was an oven thermometer. That was a “thing.” And it was in the oven. But I said no. And not just that, I knew that in the oven there were two cast-iron skillets. Those are certainly “things.” On no theory would the cast-iron skillets be part of the oven, and they were in the oven. And yet I said no when asked “Is there anything in the oven?”

Did I answer truthfully? Of course. The reason, as you have no doubted intuited, gentle reader, is that my four-year-old son was asking whether there was any food in the oven.

How did I know? This is not because “food” is one of the senses in the dictionary for “anything.” In the linguistic community of our family or neighborhood or city there is no special usage by which “anything” could be a special term for “food.” Nor was there any semantic ambiguity that would make me decide to turn to background or context. To the contrary, his question was about as free from semantic ambiguity as one could get. The referent for “oven” was clear. What part of “anything” didn’t I understand?

But I knew that it was 5 pm and said four-year-old was eager for supper. In other words, I knew the setting. I knew–to put it in legal language–what the mischief was to this four-year-old.

Now imagine a different setting. I’ve told my four-year-old that we’re going to clean the oven. And I’ve told him that the first step is to clear everything out of it. And he asks: “Is there anything in the oven?” Now I answer differently: “Yes, there are two cast-iron skillets, a couple oven racks, and a thermometer. We have to take those out before we can clean it.”

In this second setting, his question was verbally identical. The semantics were the same: there was no distinctive meaning of “anything” in one question or the other, no semantic seam that would allow you to distinguish the two cases. Instead, the question was operating in a different context, against a different background. Which made it a different question. And, critically, I needed to know the context and background before I could make sense of the question.

For the longer, more elaborate version of this point, you can see The Mischief Rule. And as I argue there, the mischief is not just a device for resolving ambiguity, but it is part of the background and context in which a court discerns that there are multiple possible meanings for statutory text.

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Over the weekend, Australians protested against a new round of lockdowns imposed to curtail the spread of the latest COVID-19 variant. Police arrested dozens of participants, vowed to hunt down more, and threatened mass arrests in the event of future acts of dissent. It was a chilling reminder of how far a nominally free country can fall when the public panics and officials see opportunity to expand power.

“Anger is growing in Australia as 13 million people – about half the population – endure fresh lockdowns to quash Covid outbreaks,” the BBC reported last week. “A third state went into lockdown on Tuesday. Stay-at-home orders are now in place in South Australia, Victoria and parts of New South Wales.”

“You must stay home,” the government of New South Wales, where Sydney is located, starkly commands residents of the city. “Only leave your home if you have a reasonable excuse.”

Unsurprisingly, those exhausted by a year-and-a half of restrictions on travel, commerce, and other forms of human activity took to the streets. Thousands of protesters flooded into Sydney to express their dissatisfaction with restrictive government policies. They were met with a heavy police presence and dozens of arrests—and threats to round up anybody who returns.

“There is some information on the internet at the moment about a potential protest this Saturday,” huffed Michael Fuller, the Police Commissioner of New South Wales. “You will be arrested and prosecuted. The community has spoken about that behavior. The Premier has spoken about that behavior and it won’t be tolerated again.”

While the protest featured some violence (as did similar demonstrations elsewhere in the world) officials made clear that the behavior they won’t tolerate is public dissent. Civil liberties may have a place, the powers-that-be suggest, but they must give way to more important concerns.

“Covid-19 has given rise to extraordinary emergency powers that would previously have been unacceptable to Australians,” Lydia Shelley and John Coyne of the Australian Strategic Policy Institute warned earlier this month about the need to better balance civil liberties with security priorities. “Australia is already conducting secret trials behind closed doors and allowing law enforcement raids on journalists’ homes and on our national broadcaster,” they added about developments predating COVID.

“A good 18 months into the pandemic, the nation is still trapped in April 2020,” agrees James Morrow, federal political editor for Sydney’s Daily Telegraph. “Australians need permission from the federal government to leave the country—applications succeed about half the time—and Australia’s states throw up their borders against one another at the slightest hint of trouble.”

What’s remarkable is how quickly Australia has fallen. Just months ago, as reports from The Economist, Freedom House, and the University of Gothenburg’s V-Dem Institute tracked the eroding health of liberal democracies in recent years, accelerated by authoritarian pandemic policies, Australia seemed to be holding on more effectively than countries including France and the United States. Admittedly, it wasn’t so much swimming upstream as losing ground more slowly, but that was something.

Recently, though, Australia’s decline has accelerated with remarkably little opposition. The Sydney Morning Herald even ran a piece headlined: “‘Missing in action’: What happened to the civil liberties movement?” about the tepid pushback against pandemic restrictions.

“We don’t have much of a human rights culture, unlike, for example, Canada and America and Europe,” Sarah Joseph, a professor of human rights law at Griffith University, told the newspaper in explanation.

“Australia also has no tradition of liberty in a sense Americans might understand, and appeals to freedom are looked at suspiciously,” confirms Morrow.

One problem is that Australia has no Bill of Rights to which a liberty-concerned minority can turn when politicians push restrictions on freedom that enjoy at least temporary popular support, as they have in the United States as well as Australia. Some Australians even boast about that absence.

“The essence of my objection to a Bill of Rights is that, contrary to its very description, it reduces the rights of citizens to determine matters over which they should continue to exercise control,” former Prime Minister John Howard told an audience in 2009. “I also reject a Bill of Rights framework because it elevates rights to the detriment of responsibilities.”

True, constitutional protections for rights shield individuals from majority preferences—which is their whole purpose. In the U.S. during the pandemic, that has meant courts invalidate lockdowns, eviction moratoriums, and restrictions on private schools, even when a panicked public latches on to promises of safety. That’s important partially because authoritarian dictates make trade-offs that many people wouldn’t choose for themselves, and also because such impositions often prove to be ineffective. 

Nor is this the first time protections for liberty have taken a turn for the worse in the land down under. As mentioned by Shelly and Coyne, Australian Federal Police raided media offices in 2019 after a series of embarrassing stories about military misconduct and domestic surveillance. The government also holds some trials in secret under the cloak of national security.

 In 2018, the country’s government gained the power to force access to encrypted communications and even to compel private companies to build in back doors. Anybody planning a new anti-lockdown protest via email or text messages should keep in mind that Big Brother might be watching.

“The truth is that, without constitutional guarantees, the measure of our freedom of expression has become that which remains after all the laws that restrict the right have been taken into account,” Gillian Triggs, president of the Australian Human Rights Commission, noted during a 2014 Free Speech Symposium.

None of this should be taken as grounds for complacency on the part of Americans who want to pretend that liberty is more secure here. The United States might have stronger constitutional protections for liberty, but that only slows the decline if the culture embraces authoritarianism—it’s not an absolute barrier. Pandemic restrictions are popular with much of the public here, too. The surveillance state is alive and well in America. And the health of liberal democracy in our country has eroded in recent years as Americans turn against each other.

Australia is suffering a surge of authoritarianism, in part because of its lack of constitutional protections for liberty. But developments down under may be showing where America is going.

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7/28/1880: San Francisco prohibits operation of laundires in wood buildings, “without having first obtained the consent of the board of supervisors.” The Supreme Court found this ordinance unconstitutional in Yick Wo v. Hopkins (1886).

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