Category: reason

The site is DiReSom.net (no apparent connection with the rare word diresome):

The health emergency caused by the contagious virus Covid-19 is having many consequences also on religious rules – more broadly for the difficulties raising from the possible contradiction between the respect for the measures taken by civil authorities and religious rules. International law allows for the limitation of the right to religious freedom on the grounds of protection of public health, and we are witnessing a situation of unprecedented restrictions on the global scale.

As scholars engaged in the study of the legal regulation of the religious phenomenon, we have wanted to create a space to collect documents, comments and other useful materials related to the emergency, in order to assess the outcomes of the normative choices made by civil and religious authorities.

DiReSom (Diritto e Religione nelle Società Multiculturali – Law and Religion in Multicultural Societies) is a research group created in 2017 within ADEC (Associazione dei docenti della disciplina giuridica del fenomeno religioso – Association of academics of the legal regulation of the religious phenomenon). Its activities are carried out also in collaboration with the European Academy of Religion.

It is coordinated by Pierluigi Consorti, full professor of Law and Religion at the University of Pisa and chairman of ADEC.

It has articles (many just posted today) on developments in Europe, East Asia, North America, and the Middle East, and it looks like it will have many more. Right now it’s chiefly about how churches are deciding whether and how to temporarily replace in-person services, but I expect it will cover other topics as well. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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“Healthy regimes strike a balance between prohibition and permission,” claims conservative columnist Ross Douthat in the latest Fifth Column podcast. Libertarians, God love us, tend to have a different point of view.

The New York Times writer was on the program to discuss his new book The Decadent Society: How We Became the Victims of Our Own Success, which is more an exercise in analysis and debate-framing than moralistic finger-wagging. The trad-con nonetheless heard an inevitable earful from co-hosts Kmele Foster, Michael Moynihan, and Matt Welch about his trailblazing role in social conservatives’ recent reanimation of the War on Porn, and where that all fits with the post-Trump ideological realignment on the right.

You can listen to the whole thing conversation here:

And below is an edited transcript from the more porny part of the conversation:

Douthat: I…think the smarter populists have a reasonable point, that right now, the people saying we should be content with 3 percent growth and not try for 4 percent or something are often the centrists. The sort of, respectable, somewhere between Barack Obama and the Simpson-Bowles Commission, or maybe the presidency of Joe Biden. There is that quality of let’s just sustain our slow growth rate to a lot of…centrist and elite discourse right now.

And the[n there are the] populists, who are sort of casting about and saying, “Well, why can’t we have an industrial policy? Why can’t we rebuild manufacturing?” All of these things. Some of their ideas may be bad, but they do at least have ambitions for a 3 percent or 4 percent growth society.

Welch: Is it that, though? I mean, it’s been Manifesto Season in your—or on their/your—part of the right for like the last 18 months. How many goddamn manifestos are we going to read in The American Conservative?

Douthat: You don’t have to read them….

Welch: I want to know what they’re coming for.

Douthat: It’s OK.

Welch: Well, they’re coming for porn, which you started….

Douthat: When they take the porn, you can curse my name….

Moynihan: Talk about that a little bit. Because I mean in the book, you talk about how the worst fears of the Andrea Dworkins and Catharine MacKinnons and James Dobsons, on both sides of the aisle, turned out to be wrong….That this was going to increase sexual violence, et cetera, et cetera.

That didn’t turn out to be true, but then you did write a column in 2018, where the headline said that you wanted to ban—

Douthat: “Let’s ban porn.”…

Moynihan: Make the case to a roomful of skeptics, and in one case a porn addict, who I will not name—I will not name Matt Welch; I won’t. Why would I do that? Why would I do that to you?

Make the case, and give us the précis of why you think banning porn is the right idea.

Foster: While Matt stares daggers at you.

Douthat: There is sort of a Catholic argument, and a decadence argument, and I think the Catholic argument you probably know pretty well—

Foster: “The wages of sin is death.”

Douthat: You are inherently dehumanizing, blah, blah, blah.

The decadence argument, which is compatible with the Catholic argument but somewhat separate, is that porn in the internet age has become essentially a substitute for forms of human gratification that lead to actual happiness in relationships, and kids and family and flourishing and all these things. And that porn basically has a numbing effect on the male libido; that you keep seeking out more and more outré forms to satisfy yourself. You don’t become some sort of psycho rapist, as people worried in the ’80s. Instead, you end up with erectile dysfunction, basically, and can’t relate to women in the real world….

I think there’s a fair amount of not entirely dispositive but pretty indicative medical and social science research to suggest that that’s the case. And that’s bad! It’s bad for the future. It’s bad for men. It’s bad for women. It’s bad for everybody. So why not get rid of it?

Welch: Because prohibition also is bad, right? Like, it’s hard to imagine a thing that is either popularly done, or consumed; or a behavior that is done by tens of millions—not just by 200,000, like tens of millions—where an attempt to ban it has worked out, that hasn’t created terrible black markets, that hasn’t led to a lot more danger and violence and death, and also contributed to the architecture of entire policing apparatuses that have made the world less free.

Douthat: So yeah, I mean, that’s a sweeping statement. I think that I’m more sympathetic to the idea that healthy regimes strike a balance between prohibition and permission. So in a healthy society, you maybe have gambling in Vegas and Atlantic City, and you don’t have a casino at every corner, right? In a healthy society, you don’t ban alcohol entirely, but you can have blue laws and age restrictions and all of these things.

I think a porn ban would end up functioning in roughly the same way….You don’t have to empower the Ministry for the Promotion of Virtue and the Prevention of Vice to hunt down pornographers in their lairs, to have a world where it’s a lot harder to find pornography on the internet….

The world of Pornhub and so on is a world that in its own way encourages all kinds of sexual exploitation and human trafficking and pedophilia and so on.

Moynihan: Does Pornhub, you think—let me just take the last one you said. Pedophilia?

Douthat: …There was a piece recently that basically said, you know, Pornhub does not obviously promote or condone pedophilia, it just happens that obviously lots and lots of people are attracted to women, young women, in the zone between maturity and non-maturity, and that Pornhub ends up as a zone where you get a lot of cases that seem to look a lot like the human trafficking of minors.

But it’s very hard to tell, and Pornhub doesn’t do a lot about it. So it’s more that it’s creating a space with minimal policing for a lot of bad things to happen.

Moynihan: Yeah, I don’t know of any of those cases in the U.S. at the moment. I mean, I remember very famously the case of Traci Lords, who had faked an I.D. and the rest of it, and they pulled a bunch of films that she made when she was, I think 15. [Editor’s note: 16.]….

Douthat: But this is the thing about the internet: You don’t have the discrete population of porn stars that sort of define the pornography world of the 1990s. Not that I, as a good Catholic, had any awareness of any such world….

Moynihan: You were just writing a book.

Douthat: I had friends, right?…

This is the argument, of course, that people say: “Well, you can’t ban it, because it’s so democratized and widely distributed.”

Foster: It’s hard. Three of the top 10 websites in the world are pornography websites.

Douthat: Right. But those websites… I mean, there’s like one company in the U.S. that manages a bunch of those. There’s a sort of Matt Stoller–style anti-monopoly argument, right, for breaking up—

Foster: And as soon as we knock that down, we’d get a bunch more….

Moynihan: But just be clear about this. The headline of your piece, and it seems to be explicit: We need to ban it. That’s still your desire, right? To just ban pornography, and make the production of it illegal?

Douthat: Yeah. I think that a low and a sort of moderately enforced ban would have the same effect as milder forms—

Moynihan: What do you mean by “moderately enforced”?

Douthat: I mean what I said. That you would not break into people’s homes to arrest them for making amateur pornography videos. That you would go after large-scale producers. I mean, I think this balance exists in other areas. I think it would have been possible to sort of maintain a world where you had marijuana prohibition. I think marijuana should be banned, and I think that ban should not be enforced in the way the War on Drugs was enforced for many years. I think this is—

Welch: How is that going to happen, though? “I want a lighter banning. A gentle banning.”

Douthat: Well, I mean, this is how we handled gambling in the U.S. before the age of the first Indian reservation casinos, and then casinos everywhere. You weren’t running massive FBI operations to eliminate the local bookie. You had a few places where it was legal, and I’m—

Moynihan: But the local bookie could be arrested.

Douthat: Yeah, he could be. He could be.

Moynihan:  And he could go to jail.

Douthat: He could be arrested, yeah….

So basically a pornographer has to assess a set of risks. And he knows that in most cases, if he’s making amateur pornography, he’s not going to get in trouble, and if he scales up his operation, he is.

Foster: I could certainly imagine a universe where you knock off the really big players in the porn industry. I also imagine the scope-creep that inevitably happens with regimes like this, where once they knock off the big guys, they start to go after the medium-sized guys, and then they start to go after smaller guys.

But even worse than that, if we think Pornhub is a problem, I don’t know that the proliferation of a bunch of copycat websites is actually going to be a good thing.  It strikes me that you can at least go after Pornhub, and sort of strangle them a bit, to invoke a metaphor….And they would probably try to get their act together. Those other folks might not.

And to invoke one more piece of evidence from The New York Times, there’s been a lot of really good and totally fucking terrifying reporting about child pornography and its proliferation online, its explosion online, and the fact that it is completely illegal, and we have no capacity to stop it whatsoever. So I think the difficulty of this is actually an impossible task, and in criminalizing it even a little bit we run the risk of driving it underground, making it much worse, and then necessarily having some risk of scope-creep, that makes an ever wider percentage of the population subject to punitive actions from the state, which always makes me nervous.

Douthat: I read those same articles, and I came away convinced that, one, nobody was putting any law enforcement energy towards this; and two, major internet providers, on whose messaging services these things were happening, were facing no pressure whatsoever from public authorities to do anything about it. So I don’t think it’s the case that those horrifying stories reflect the failure of law enforcement. They reflect an absence of law enforcement will and pressure on companies.

Now, I agree that if you extend that forward, as with anything—if you’re trying to catch terrorists online, right?—there’s always the danger of mission creep and so on.

And, look: You know, if you write an op-ed column, you need a catchy headline! I don’t expect porn to be banned in a comprehensive way in my lifetime, but I would much rather have the problem of worrying about that the civil liberties of the amateur pornographer might be infringed, than to live in a world where teenagers get their sex education from pornography that is not even remotely like the pornography that hypothetical friends of mine, certainly not myself, might have gotten their sex education from….

Welch: I initially brought this up to say that Sohrab Ahmari isn’t talking about 3 percent growth, and that all of the manifestos he’s signing his name to is “pornography” this, it’s “trade” that, it’s everything, it’s immigration. That’s the problem with you damn trad-cons….It seems like that…what’s getting people up in the morning to do their chest pushups is the social stuff.

Douthat: Yes.

Welch: And it’s stuff that’s infringing on my zone of freedom.

Douthat: Every day, in new ways. That’s right.

Welch: Every day, in new ways.

Douthat: Sohrab wakes up and says, “What kind of library story am I going to prevent Matt Welch from attending today?”

Welch: It strikes me as a strange thing.

In some way, nodding to what you were saying before, there is an acknowledgement that the world is not the world that we lived in in 2015, and you and they are acting on this, and trying to create new programs and new ideas, and like, “Let’s shape the alignment in an interesting way.” And I have respect for the game of doing that.

Douthat: Manifestos, man. They pay the bills. I’ve got kids. They’ve got to eat.

Welch: But this is not going to be popular! As soon as you start giving the sense of, like, “Hey, you’re getting into my grill”—

Douthat: So, pornography is actually not that popular. I mean, you can dispute the polls—

Moynihan: In polls. It’s not that popular. Hmmm. Let me close this tab.

Douthat: First of all, women, even now in our enlightened age, are not generally big fans of pornography.

Moynihan: Is it one in three women consume pornography once a week, I just saw the other day?

Foster: I think people lie.

Moynihan: Yeah, and people also lie. This is the one thing I’d lie about. The masturbation Bradley effect.

Douthat: I think it runs the other way. Certainly, in the circles that we all run in, sort of political journalism, to be against porn, let alone against masturbation, is to be a hopeless loser and a square, right? I don’t see there is all this social pressure to be anti-pornography that would manifest itself in opinion polls….

I do actually think that not banning porn, but restricting porn, would be more popular than, say, rolling back same-sex marriage. I think that one of the things that the trad-cons are arguing is that there are things that social conservatives could be in favor of that would be more helpful than re-fighting some lost battles on other issues.

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Thursday, the mayor of Champaign (Ill.) declared an emergency, based on the coronavirus epidemic, and Friday the city council approved the declaration. This in turn triggered a 2006 ordinance that authorized the mayor to do many things, including

(2) Order a general curfew …;

(4) Order the discontinuance of the sale of alcoholic liquor by any wholesaler or retailer;

(5) Order the discontinuance of selling, distributing, or giving away gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle;

(6) Order the discontinuance of selling, distributing, dispensing or giving away of explosives or explosive agents, firearms or ammunition of any character whatsoever;

(7) Order the control, restriction and regulation within the City by rationing, issuing quotas, fixing or freezing prices, allocating the use, sale or distribution of food, fuel, clothing and other commodities, materials, goods or services or the necessities of life;

(8)(a) Order City employees or agents, on behalf of the City, to take possession of any real or personal property of any person …;

(b) In the event any real or personal property is utilized by the City, the City shall be liable to the owner thereof for the reasonable value of the use or for just compensation as the case may be …;

The list goes on, but recall that this is the general grab-bag authorization from the ordinance; it’s not a specific choice to include any of the provisions in this particular emergency declaration. I’ve seen no indication that the mayor has any plans related to blocking sales of alcohol or guns or ammunition or anything else (or for that matter seizing guns or ammunition, as part of the authorization for seizing property generally). The City Attorney specifically said “the city doesn’t plan to use” these particular provisions. (The ordinance, by the way, is patterned on an Illinois statute, which dates back at least to 1988, that provides for similar emergency powers on the Governor’s part, though the ordinance mentions ammunition and the statute doesn’t.)

I thus think that it’s a mistake to describe this—as some headlines (“Champaign Illinois First Locality To Cite ‘Emergency Powers’ To Ban Gun Transfers”) seem to do—as a ban on gun sales, just as we wouldn’t call it a ban on alcohol sales. I expect that both kinds of sales are proceeding at their normal pace, or perhaps even more than normal, notwithstanding the ordinance. The ordinance is an authorization of such bans, should the mayor conclude that an emergency requires it, and one can disapprove of that; but it’s not actually a ban itself.

Now any broad order actually forbidding gun and ammunition sales and transfers (which would cover a friend seeing a bag of hundreds of rounds in his closet from the last target-shooting trip, and sharing it with relatives or friends) may well be unconstitutional. Bateman v. Perdue, a 2012 federal district court case from North Carolina struck down certain North Carolina statutes related to guns in emergencies:

The first statute, North Carolina General Statute § 14-288.7, makes it a Class 1 misdemeanor “for any person to transport or possess off his own premises any dangerous weapon or substance in any area” in which a state of emergency has been declared. The other statutes at issue in this case authorize government officials to impose further “prohibitions and restrictions[]… [u]pon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances” during a state of emergency.

The court concluded that the Second Amendment protects guns outside the home as well as inside (a matter on which federal courts are in disagreement, though the Seventh Circuit seems to lean in the same direction as did the North Carolina federal court); and it held—correctly, I think—that both prohibitions were unconstitutional:

North Carolina General Statute § 14-288.7 prohibits the transportation or possession of both “deadly weapons” and ammunition off one’s own premises. This prohibition applies equally to all individuals and to all classes of firearms, not just handguns. It is not limited to a certain manner of carrying weapons or to particular times of the day. Most significantly, it prohibits law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense….

While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment. As such, these laws, much like those involved in Heller, are at the “far end of the spectrum of infringement on protected Second Amendment rights.”

That being the case, the emergency declaration statutes are presumed invalid, and defendants bear the burden of rebutting that presumption by showing that the laws are narrowly tailored to serve a compelling government interest. This defendants have failed to do.

There is no dispute that defendants have a compelling interest in public safety and general crime prevention. “‘[P]rotecting the community from crime’ by keeping guns out of the hands of dangerous persons is an important governmental interest.”

The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government’s interest in public safety. They do not target dangerous individuals or dangerous conduct. Nor do they seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times.

Rather, the statutes here excessively intrude upon plaintiffs’ Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest. See D.C. v. Heller (“[A]mericans understood the ‘right of self-preservation’ as permitting a citizen to ‘repe[l] force by force’ when ‘the intervention of society in his behalf, may be too late to prevent an injury.'” (quoting Blackstone’s Commentaries)). Consequently, the emergency declaration laws are invalid as applied to plaintiffs.

Gun restrictions imposed under the Champaign ordinance would thus be unconstitutional, unless perhaps they were somehow particularly “narrowly tailored” to “target[ing] dangerous individuals” or “dangerous conduct” (as opposed to merely acquiring guns or ammunition).

Nonetheless, while it’s certainly worth noting that the ordinance authorizes something that’s likely unconstitutional (and certainly quite burdensome on people’s ability to defend themselves), there has so far been no attempt to exercise this power, and no indication that the mayor has any plans to exercise the power. We’re talking about an authorization of a ban—and perhaps one that wasn’t specifically intended by the Mayor and City Council right now, though it had been intended by the drafters of the ordinance and the statute on which it was based—not a ban as such.

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Earlier this month, a group of organic farmers and advocates sued the U.S. Department of Agriculture (USDA) over the agency’s certification of some hydroponic produce as “organic.” The suit seeks to bar the USDA from awarding its organic seal to hydroponically raised foods.

Hydroponics is a type of farming or gardening that uses water (rather than soil) as a growth medium for a variety of fruits, vegetables, herbs, and other plants—including cannabis. Hydroponic growth can be accomplished indoors with the addition of commercially available lighting, nutrients, and other materials.

The suit was filed by the Center for Food Safety (CFS)—a “litigious” California-based nonprofit that boasts nearly a million members—along with a handful of organic farmers and the Maine Organic Farmers & Gardeners Association. CFS petitioned the USDA early last year, asking the agency to develop rules that would prohibit organic certification of hydroponic operations. The agency denied the petition in June.

The suit alleges that the USDA’s actions fly in the face of the 1990 law that established the agency’s authority over the labeling of organic foods. That argument hinges in large part on the language around fostering soil fertility in the 1990 law, the Organic Foods Production Act (OFPA), which gave rise to the USDA’s certification program.  Under the law, which refers to “soil” only a handful of times, farmers must have in place an “organic plan [which] shall contain provisions designed to foster soil fertility, primarily through the management of the organic content of the soil.” A farmer raising crops she wishes to market under the USDA’s organic seal must submit its organic plan to a certifying body such as Oregon Tilth.

That group, the nation’s first organic certifying body, was established in the early 1970s. The word “tilth” refers to soil quality.

“Organic farmers and consumers believe that the Organic label means not just growing food in soil, but improving the fertility of that soil,” says Andrew Kimbrell, executive director of the Center for Food Safety, in a release announcing the lawsuit. “USDA’s loophole for corporate hydroponics to be sold under the Organic label guts the very essence of ‘Organic.'”

According to the handful of farmers who are part of the lawsuit—and who grow a host of organic fruits and vegetables, many of them having done so for decades—they’re facing stiff competition from (typically) larger hydroponic farmers, who incur lower costs to grow the same food and can therefore offer more value to consumers for the same products.

What exactly is “organic”? For regulatory purposes, the term refers as much to what doesn’t go into producing a particular food as what does go into it. As I explained in a 2016 column, under USDA rules the term “organic” refers to foods that are produced 1) “without excluded methods;” 2) ” using allowed substances;” and 3) under the oversight of a USDA-authorized organic certifying agent.

The hydroponic-organic fight dates back to at least 2010, according to Food Dive, a news website that has a helpful chronology on the fight.

As I detailed in 2016, the Cornucopia Institute, which promotes organic foods, had recently filed a complaint with the USDA over hydroponic organics.

“It’s not hard to make the case that soil is as central to the concept of ‘organic’ as any other idea or thing,” I wrote. “On the other hand, it’s also not hard to make the case that soil isn’t central to the concept of what is and isn’t organic. While most of our food is grown in soil, only a small percentage of that food is ‘organic’ under USDA rules. In other words, whether or not food is grown in soil tells us little that’s useful about whether that food is ‘organic’ or not.”

When I last wrote about this issue, the Boston Globe editorial board had just weighed in on the debate over hydroponics and organics. Step off, the paper told the USDA.

“It would be better for the authorities to focus on ensuring the safety of food and the accuracy of label information about things like nutrition and allergens, while letting consumers figure out for themselves what organic means to them,” write the Globe‘s editors. 

That latter point is so important—and something USDA rules simply don’t allow for. It’s also just one of the many flaws inherent in the USDA’s oversight of organic food. For example, I detail the arguments of several leading supporters of organic foods who are also leading critics of the USDA’s organic labeling program in my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable

If CFS and its fellow plaintiffs lose, then the result will likely be more innovation, more competition, and lower costs for consumers. The USDA’s organic seal has very little integrity to begin with. Allowing hydroponic crops to be certified as organic—while not as welcome as would be getting the USDA out of the organic-labeling business altogether—won’t damage that integrity any further.

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3/14/1932: Justice Owen Roberts takes oath.

 

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