Category: reason

The office of Baltimore’s top prosecutor, State’s Attorney Marilyn Mosby, is trying to convince the Federal Communications Commission to investigate the city’s Fox affiliate on the basis of its critiques of her.

This is not, of course, how Zy Richardson, Mosby’s communications director, frames the issue in the May 5 letter she has sent to FCC Chairwoman Jessica Rosenworcel. Richardson attempts an argument that Fox affiliate WBFF’s coverage of Mosby is “misleading, racist, and extremely dangerous.”

What the letter is actually complaining about, though, is constitutionally protected speech. Part of the letter’s “evidence” is that WBFF simply runs far more stories about Mosby than the other Baltimore networks. Richardson incorrectly argues that the “tone” of Fox’s coverage violates FCC rules. She writes that Fox News is “infamous for its bias against people of color,” shifting abruptly to a complaint about Tucker Carlson’s commentary, which has nothing to do with whether WBFF’s coverage of Mosby is some sort of regulatory violation.

The letter complains that WBFF has broadcasted Mosby’s home address and attempted to find out which schools her children attended, which the letter classifies as part of the network’s “heinous acts and deliberately dangerous activities.”

There is no point in the letter where Richardson actually details anything WBFF has done that is a violation of the law or FCC regulations. The letter links to several stories that she believes are “so slanted that they are not simply a dog-whistle to the right wing, they have become a megaphone that amplifies, encourages, and provides fodder for racists throughout the city and beyond, to continue sending hate mail and death threats.”

One of many problems with this claim is that there’s actually no sign of these alleged racist dog whistles in the six pieces she linked to. The pieces all involve analyses of the decisions being made by her office, like fewer prosecutions of low-level crimes and drug crimes, travel funded by outside organizations, and oversight of her office. All of this is completely fair game for network coverage, and several of them even include responses by her office.

But, yes, there’s a lot of critical coverage of Mosby’s office at WBFF, and it’s absolutely reasonable for an independent observer (which, to be clear, Mosby’s communications director is not) to conclude that WBFF is definitely not a fan of Mosby, playing instead to a tough-on-crime audience that supports the drug war.

But this complaint is an attempt to marshal the power of the government against critics of a government official. UCLA Law Professor Eugene Volokh over at The Volokh Conspiracy (hosted on this site) notes that contrary to what Richardson writes (that the FCC is authorized to act against slanted news), the FCC has actually indicated, “no Government agency can authenticate the news, or should try to do so,” and that they will “eschew the censor’s role, including efforts to establish news distortion in situations where Government intervention would constitute a worse danger than the possible rigging itself.”

Mosby’s attempt to get the federal government to punish WBFF for the viewpoints it expresses is very clearly unconstitutional. Richardson explains that her requests to the affiliate that “WBFF cease its intentional distortion of the news” has not been led to results, which is why she’s turning to the FCC. But there is nothing in the letter that provides any evidence that the news has been distorted. It’s a simple assertion they’re asking the FCC to accept.

FCC Commissioner Brendan Carr, a Republican nominated to the position by President Donald Trump, blasted Mosby’s letter Monday, calling it an attempt by “Democratic officials to pressure the FCC and its regulated entities into censoring news coverage and political speech that Democrats don’t like.”

Richardson responded to the Baltimore Sun by trying to insist that she’s not trying to engage in censorship of the press, despite a massive pile of evidence otherwise.

“We are very clear in the letter that we support free speech and we support accountability of public officials,” Richardson wrote. “To say otherwise is willfully ignorant. We are simply asking the FCC to look into the racist and hateful rhetoric that is consistently broadcast by WBFF Fox 45 and its potential to incite threats of violence on the state’s attorney and her children.”

To be clear here: Richardson is not just asking the FCC to “look into” what WBFF is doing. The letter’s opening sentence is that it’s a “formal complaint” that accuses the network of violating FCC regulations and ends by asking the FCC’s chairwoman to “take action against the WBFF as soon as possible.” Carr is not the person being willfully ignorant here.

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In March, World Health Organization (WHO) Director-General Tedros Adhanom Ghebreyesus called into question the organization’s report on the origins of the COVID-19 coronavirus. The stage-managed investigation didn’t take place until a year after the pandemic started, and reckoned that it’s most likely that the virus jumped to humans from animal species, deeming the lab leak hypothesis extremely unlikely. Tedros observed, “Although the team has concluded that a laboratory leak is the least likely hypothesis, this requires further investigation, potentially with additional missions involving specialist experts, which I am ready to deploy.”

“I do not believe that this assessment was extensive enough. Further data and studies will be needed to reach more robust conclusions,” he added, noting that “all hypotheses remain on the table.” For his troubles, Chinese officials are suggesting that Tedros’ comments are being used by “some forces with ulterior motives [that] are challenging the authority of and science behind the joint report.” But if the Chinese government has nothing to hide, why has it stymied investigations into the origin of the virus from the very beginning of the pandemic?

In an extensive analysis at The Bulletin of the Atomic Scientists published last week, science journalist Nicholas Wade evaluates the likelihood that the virus has a natural origin versus the possibility that it escaped from the Wuhan Institute of Virology. Noting that ultimately “neither the natural emergence nor the lab escape hypothesis can yet be ruled out,” Wade nevertheless concludes that the “proponents of lab escape can explain all the available facts about SARS2 [COVID-19 virus] considerably more easily than can those who favor natural emergence.”

As evidence, Wade notes that while researchers have identified a very similar RaTG13 virus in horseshoe bats, they have not so far found a likely progenitor of the COVID-19 coronavirus in any wild or domesticated species. Initially, it was suggested that a local Wuhan wet market where wild animals were sold for food may have been the source of the initial outbreak. That was later discounted when further testing found that many of the first cases had no link to that market.

Wade argues that circumstantial evidence strongly supports the idea that the virus escaped from the Wuhan Institute of Virology. First, the lab has been collecting and doing research on bat coronaviruses for years and, perhaps not so coincidentally, the outbreak begin in Wuhan and nowhere else. Second, he claims that the initial uniformity of the strain of virus at the outset of the pandemic suggests that it was a gain-of-function variant experimentally adapted to be especially good at infecting human cells. Gain-of-function research seeks to improve the ability of a pathogen to cause disease. Wade also puts great evidentiary weight on the fact that the virus supposedly has an unusual furin cleavage site (a specific protein that the virus uses to enter human cells). Wade believes that its presence in the COVID-19 virus suggests lab manipulation.

Wade is particularly suspicious of EcoHealth Alliance researcher Peter Daszak who oversaw a National Institutes of Health grant used to fund research on coronaviruses at the Wuhan Institute of Virology. He notes that Daszak was involved in organizing an open letter published in The Lancet in March 2020 that decried “rumours and misinformation” suggesting that the COVID-19 virus did not have a natural origin. The letter did reference nine different early studies that concluded that the virus most likely had a natural origin. It is, however, notable that Daszak was a member of the WHO investigatory team that went to China in January. Daszak’s longtime association with the Wuhan Institute of Virology certainly does have a conflict of interest whiff about it.

Wade asserts that the NIH grant was used to fund gain-of-function research on coronaviruses. Reading the abstract suggests that the funded research was actually focused on collecting viruses from the wild and developing predictive models to assess the risks of spillover into humans. On the other hand, in a video interview just days before the outbreak was identified, Daszak could be alluding to some gain-of-function research in Wuhan. In any case, even if Daszak is honest in his denials that doesn’t mean that NIH funding might not have been diverted to gain-of-function research by lab leaders in Wuhan. Yesterday at a Senate hearing, Anthony Fauci, member of the White House Coronavirus Task Force, strongly denied that the NIH had ever funded gain-of-function research at the Wuhan laboratory.

Wade claims that “no known SARS-related beta-coronavirus, the class to which SARS2 belongs, possesses a furin cleavage site.” Therefore it seems most likely to him that the furin cleavage site was added through gain-of-function experimentation in Wuhan. Certainly some research supports this contention, whereas other researchers report, “Furin cleavage sites in spike proteins naturally occurred independently for multiple times in coronaviruses. Such feature of SARS-CoV-2 spike protein is not necessarily a product of manual intervention, though our observation does not rule out the lab-engineered scenario.” More research and analysis will be required to sort these claims out.

Wade also asserts that if the virus “jumped from bats to people in a single leap and hasn’t changed much since, it should still be good at infecting bats. And it seems it isn’t.” Actually, according to some non-peer-reviewed research, some bat species are susceptible to COVID-19 infections. Among these are the common bent-wing bats (Miniopterus schreibersii) that are also found in the Yunnan caves from which the Wuhan virus researchers collected coronavirus samples. But have Chinese researchers sought to (re)test for the presence of a virus similar to the COVID-19 virus among that species of bat in Yunnan? The Chinese government still has plenty for which they ought to answer.

However, Wade is correct when he observes, “The records of the Wuhan Institute of Virology certainly hold much relevant information. But Chinese authorities seem unlikely to release them given the substantial chance that they incriminate the regime in the creation of the pandemic.”

It is notable that on September 12, 2019, the main database of samples and viral sequences of the Wuhan Institute of Virology was taken offline. Institute researchers claim that that was done to prevent hacking. There is, however, no reason WHO or other investigators cannot now be given access to it.

“Absent the efforts of some courageous Chinese whistle-blower, we may already have at hand just about all of the relevant information we are likely to get for a while,” Wade concludes.

The WHO investigation was pitifully inadequate. On March 4, a group of skeptical researchers issued an open letter questioning the WHO report and calling for an independent “forensic investigation” into the origins of COVID-19. If the Chinese government has nothing to hide concerning the origins of the COVID-19 virus, then it should welcome such an inquiry. If not, then Chinese researchers and officials should expect continued—and increased—skepticism about their assertions that the COVID-19 virus was not introduced to the world via a lab leak.

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That’s in Michigan House Bill No. 4813, introduced by Reps. Maddock, Outman, Eisen, Roth, Martin, Griffin, Bezotte, Damoose and Carra:

Sec. 3(a) “Fact checker” means a person that meets all of the following:
(i) Is paid or compensated by an organization affiliated with a national or international fact-checking organization or network that holds itself out as a fact-checking organization or network.
(ii) Is a member of the International Fact Check Network.
(iii) Publishes material physically or digitally in this state.
(iv) Holds itself out to the public as a fact checker.

Sec. 5. A fact checker shall register with the secretary of state.

Sec. 7. At the time of registration, a registrant shall file with the secretary of state proof of a fidelity bond in the amount of no less than $1,000,000.00.

No, the government can’t require people who engage in speech with a specific sort of content (fact-checking) or who belong to a specific organization of writers (the International Fact-Checking Network) to register and provide a bond before speaking—just as the government can’t require people who engage in speech with a specific sort of content to pay extra money for police protection (see Forsyth County v. Nationalist Movement (1992)). Content-neutral requirements for demonstrations on public streets at parks, with insurance aimed at dealing with potential harms unrelated to content (e.g., physical injury and property damage), may be constitutional. But not content-based requirements such as the Michigan one, which are clearly aimed at supposed harms stemming from the content of the speech.

If people really think that fact-checkers are outright libeling them, they can sue, just as they can sue whenever any other speakers (non-fact-checker journalists or non-journalists) libel them. It’s true that sometimes the defendants won’t have the money to pay (though ones that write for money and belong to established organizations often do have insurance). But that isn’t an adequate reason to require people to register and pay for a bond before speaking on certain topics.

Thanks to my colleague Prof. John Villasenor for the pointer; see this Detroit News article (Beth LeBlanc & Craig Mauger) for more.

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A cyber-attack on the company that operates one of the country’s most important fuel pipelines has temporarily crippled the supply of gasoline and jet fuel to much of the East Coast, causing prices at the pump to rise by several cents in most of the affected states. More increases could be on the way as some gas stations have run out of fuel amid a craze of panic-buying.

Predictably, the crisis has already sent some federal and state authorities into a tizzy about so-called “price gouging” at the pump. During a press conference on Tuesday, Energy Secretary Jennifer Granholm issued a stern warning to gas station owners who might dare to raise their prices in response to changing market conditions.

Secretary of Energy Jennifer Granholm on shortages from the Colonial Pipeline cyberattack: "We will have no tolerance for price gouging" from gas station owners. https://t.co/ay3MJzTXcq pic.twitter.com/tF044nZml4

— USA TODAY (@USATODAY) May 11, 2021

“We expect that gas station owners are and should act responsibly,” she said. But here’s the thing: oftentimes raising prices during a crisis is the responsible thing to do.

When prices shoot up during a shortage, Duke University political scientist Michael Munger told Reason last year as politicians panicked over coronavirus-induced supply problems, one of the first things that happens is “consumers buy less.”

“They look at that price and they say, ‘You know, somebody else must need this more than I do,’ and so they leave some for the person behind them,” says Munger.

When you throw basic economics out the window, you end up with panicked consumers trying to buy up as much of the supply as they can. Which looks something like this:

Shared by a friend in Tallahassee: selfish idiots gas hoarding and turning the SUV into a Molotov cocktail pic.twitter.com/QABR42dFz9

— Adam Weinstein (@AdamWeinstein) May 11, 2021

And this:

Man and woman brawl over line-cutting at packed North Carolina gas station https://t.co/SCnBwu2OPX

— The Daily Beast (@thedailybeast) May 12, 2021

Too often—and especially during times of crisis—politicians don’t seem to understand that prices are a source of information for the public, rather than some arbitrary figure dreamed up by greedy businessmen. Disrupting the flow of that information doesn’t help.

Criminalizing that flow of information is worse, but that’s exactly what South Carolina has done. Alan Wilson, the state’s attorney general, issued an emergency order Tuesday that anyone found selling gasoline for “an unconscionable price” could face fines of up to $1,000 or 30 days in jail.

Probably the best (so far) illustration of how basic economics completely befuddles politicians comes from North Carolina Gov. Roy Cooper (D), who dropped this golden nugget of advice yesterday.

I have talked today with federal officials including Energy Secretary Jennifer Granholm and we have a full court press to get the Colonial Pipeline back up and fully operating quickly. Report price gouging and please don’t rush to top off your tanks. – RC

— Governor Roy Cooper (@NC_Governor) May 11, 2021

If only there was a way to discourage people from rushing to top off their tanks. Perhaps allowing companies to make it more expensive to do so would do the trick.

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One of the things lawyers need to do, and therefore one of the things I try to teach my students how to do, is to understand the strongest arguments against their position. Lots of people agree that this is important in principle, but can falter in practice. (Look, I understand the strongest arguments against my position, it’s just that they are all bad arguments! That’s why my position is correct!)

So a useful exercise to get there is what some people on the internet call “steelmanning.” A steel man is the opposite, of course, of a straw man. Steelmanning “is the art of addressing the best form of the other person’s argument, even if it’s not the one they presented.” For instance, given the inconsistent quality of judicial opinions, this can be a very useful supplement to just reading cases if you are trying to think through an area of law.

Indeed, I now sometimes test a version of this skill on my exams, asking students to write up both sides of an argument, with the rule that their grade will be based on the quality of the worse of the two arguments. (I discussed this a little bit towards the end of my recent podcast appearance on Rationally Speaking with Julia Galef.)

On Twitter last night, my friend Jacob Levy asked whether this practice is really just a re-labeled version of the older notion of “interpretive charity,” in which we try to put others’ claims in a sympathetic rather than an unsympathetic light.

Reflecting about it, I think these two strategies are obviously related, and both are forms of good intellectual hygiene, but there are some differences.

Interpretive charity is ultimately more interpretive than steelmanning. There is a potential limit to interpretive charity if you think: I know he should have said X, but he just plainly rejected X or didn’t think of it. “You have to be able to declare, at some point: ‘For crying out loud, he never would have thought of that!'” By contrast, with steelmanning it doesn’t really matter what a particular person said. It just matters what the best argument is.

Relatedly, there are multiple ways one can be “charitable” to somebody else’s claim. One can try to make it as true as one can. One can try to make it as consistent or coherent as one can. One can try to make it fit in to a broader philosophical world view, even if it’s a world view that you don’t hold. One can try to trim off particularly ugly implications. Etc. Steelmanning, by contrast, focuses on making an argument as true as possible.

Relatedly relatedly, I’ve sometimes seen people use interpretive charity in ways that actually make an argument easier for them to reject. Justice so-and-so says X, which seems weird to me. But maybe I’ll be charitable and assume that this argument was motivated by his underlying political philosophy. And I reject his underlying political philosophy because it is wrong/uninformed/racist/whatever, so I can now safely reject his argument. This may indeed be charitable to the speaker; but steelmanning is less focused on the speaker and more on the listener. What is the version of this argument that hits closest to home for me?

Again, both of these can be useful tools. I don’t think steelmanning is categorically superior to interpretive charity, even when trying to get at the truth. For instance interpretive charity might be a better tool for understanding the argument of an epistemic peer—somebody whose arguments may well be persuasive to you if you only understood them better.

By contrast, steelmanning may be a better tool when dealing with the arguments of those who start from different premises. Rather than safely reduce their argument to its premise and then reject the premise, you can be forced to search for other premises that might ground the argument closer to where you stand.

Regardless of the differences between these two, both ought to be a standard part of our critical thinking toolbox.

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