Category: reason

Thirteen years ago in the pages of Reason, John Mackey, co-founder and CEO of Whole Foods Market, debated Milton Friedman, the Nobel-winning economist famous for declaring that “the social responsibility of business is to increase its profits,” and T.J. Rodgers, the CEO of Cypress Semiconductor who was (rightly!) famous for publicly telling buttinsky activist-investor nuns that they had no understanding of how to create jobs (the Catholic schoolboy in me still thanks Rodgers every night during my evening prayers).

Mackey argued an early version of a business philosophy that he would later codify in a 2013 book, Conscious Capitalism, and a nonprofit organization of the same name. Contrary to Freidman’s Ahab-like focus on shareholder value, Mackey said,

The enlightened corporation should try to create value for all of its constituencies. From an investor’s perspective, the purpose of the business is to maximize profits. But that’s not the purpose for other stakeholders—for customers, employees, suppliers, and the community. Each of those groups will define the purpose of the business in terms of its own needs and desires, and each perspective is valid and legitimate.

Friedman and Rodgers toed the standard libertarian line: Take care of profits and shareholders, and good things will follow. Markets are set up in such a way that profits happen only when what a business does is valuable and wanted; the business can keep making money only if it uses resources wisely and efficiently, which includes paying good wages to keep talented people around. The intricate interplay of investors, entrepreneurs, employees, raw materials, competition, and so forth guarantees that if a company is doing right by its financial backers, it will be doing right by its workers, customers, and society.

According to this view, any discussion of the “social responsibility of business” to do anything other than earn a buck (such as Whole Foods’ support of charities picked by local store workers) is either cheap P.R. or a dangerous invitation to all sorts of new expectations and regulations layered on top of the already brutally hard business of keeping the lights on at your store, factory, or hot dog stand. (As Joseph Schumpeter noted in his 1942 book Democracy, Capitalism, and Socialism, in any given year more businesses go tits up than make a profit.) “Mackey’s philosophy demeans me as an egocentric child because I have refused on moral grounds to embrace the philosophies of collectivism and altruism that have caused so much human misery, however tempting the sales pitch for them sounds,” Rodgers complained, even as Mackey insisted that “my argument should not be mistaken for a hostility to profit.”

Today that 2005 debate reads like it’s from the distant past, if not from a different planet. Friedman is dead, of course, and Rodgers retired in 2016 after helming Cypress for 34 years. Whole Foods is now part of Amazon and, more important, helped to transform the stodgy, old grocery business so fundamentally that my local Kroger store in Oxford, Ohio, has two Asian guys making sushi in plain sight eight hours a day and enough organic produce on every shelf that the local food co-op, a fixture in college towns, is barely scraping by. Walmart is not simply the largest seller of guns and ammo in America; it moves more organic produce than anybody else.

And here’s the thing: Mackey’s call for businesses to explicitly care about more than revenue per square foot or investors’ earnings has effectively won the argument with just about everyone but libertarians.

“In the last 13 years, more and more people are beginning to see it our way,” Mackey told me in a just-released podcast that was recorded last month at FreedomFest, the annual gathering of 2,000 libertarians in Las Vegas. “Honestly, I get the biggest pushback when I come to FreedomFest. I’d say the hardcore libertarians don’t believe it, though people who run businesses tend to believe it….The enemies of business and the enemies of capitalism have put capitalism and business in a very narrow box, where it’s all about greed, it’s all about selfishness, it’s all about just money, money, money…..There’s a deep cynicism out there about business and businessmen, and economists fall into the trap. They say, ‘Yeah, it is all about money. Get over it!’ But I’ve known lots of entrepreneurs in my life—hundreds of them—and very few of them started their businesses simply to make money. They had some kind of dream or vision they wanted to realize.”

It’s not that America’s business class has been magically transformed from uptight, Robert McNamara types in towering corporate skyscrapers or cigar-chomping, baby-stomping, tuxedo-wearing pigs into turtleneck-clad hippies who use organic deodorant or everyday-is-casual-Friday-clad hipsters riding penny-farthings to work. But there’s no question that the firms and start-ups that define the cutting edge of contemporary capitalism—everything from Apple to Chipotle to WeWork—grok a Whole Foods vibe much more than they do, say, the ethos of General Electric, which was just dropped from the Dow Jones Industrial Average after a 100-year run.

People want to work for companies that not only have social commitments but live them every day in the office or store. Many customers willingly pay a premium by patronizing companies that express similar values or employ practices that accord with various environmental, philosophical, or social views. These companies (the successful ones, anyway) don’t use such commitments as an excuse to deliver shitty service or products. It’s more of a giveaway, like the toy in a McDonald’s Happy Meal. And they face real wrath when they contravene their own stated commitments. Chipotle, which prided itself on using local organic ingredients and being transparent about its operations, is still struggling with fallout from a 2016 e. coli outbreak. People aren’t just scared to eat there; they feel betrayed. In 1993, the fast-food chain Jack in the Box served food that killed four and injured 178 others. Its rehabilitation was simply about making customers feel safe to eat there, which is an easier lift.

As we move further into a post-scarcity economy, one in which our basic material needs are completely taken care of, we move into a world where our choices will be guided by more than simple questions of cost, availability, or even quality. Consumption has always been a symbolic activity as well as a starkly pragmatic one. Take it from a long-dead economist whom we can safely assume never wore sandals to work or called for team building via goat yoga or paintball outings:

“Choosing determines all human action,” wrote the eminent Austrian economist Ludwig von Mises more than 50 years ago, sounding more like Jean-Paul Sartre than Adam Smith. “In making his choice, man chooses not only between various materials and services. All human values are offered for option. All ends and all means, both material and ideal issues, the sublime and the base, the noble and the ignoble, are ranged in a single row and subjected to a decision which picks out one thing and sets aside another.”

In a world where supermarket shelves are crammed with endless choices, commerce is about speaking to consumers’ moral and ethical values every bit as much as their plummeting blood-sugar levels. The same goes for workers: Given a choice between working for a company that offers a compelling, holistic vision of the world that aligns with your own and one that doesn’t, which are you more likely to sign up with?

This needn’t be a totalizing vision, in which everything we do every minute of every day must have deep ethical and spiritual meaning. Many of us may want to fully separate work from play or personal life. But as work becomes more artisanal and expressive (even cake baking is now seen as akin to painting the Mona Lisa), it seems likely that the fusion of work and personal values will be increasingly taken for granted. You can call it virtue signaling, but since when is signaling a shameful activity, especially among free-market libertarians, anarchists, and fellow travelers? All things being equal (or even just most things being equal), why wouldn’t you want to work and shop at places that share your values?

Libertarians who reflexively recoil from ideas like conscious capitalism seem to do so mostly because they think it’s an attempt to get with the cool kids on the left or because they view it as a betrayal of foundational values, insights, and axioms developed by Friedman and others under very different circumstances. Friedman made his original statement about corporate social responsibility in 1970, at a time when belief in what John Kenneth Galbraith called “the new industrial state” was at its zenith. Through a mix of market power and cronyism, massive corporations such as IBM, Xerox, Philip Morris, and GM had supposedly tamed the vicissitudes of the marketplace. They were immune from the ups and downs of smaller, less-efficient, poorly managed firms. These companies would exist forever and would provide cradle-to-grave employment, health care, and retirement for us all, taking over many basic functions of government.

Friedman recognized how wrong that consensus was: The great mid-century monopolists of the U.S. economy were already falling apart due to mismanagement, growing global competition, and failure to adapt and innovate. He understandably bridled at the idea that businesses should be concerned with more than their bottom line. They were about to go out of business, and here they were, talking about all sorts of things completely unrelated to profit. Politicians and activists had their hands in the supposedly bottomless pockets of America’s leading corporate citizens.

But nearly 50 years later, we live in a very different world. Despite all sorts of ups and downs and a global recession, we are infinitely wealthier and better off. We live in a world of super-abundance that is provided not by governments but by endlessly churning, innovative businesses that change the world and then die off or limp along as zombie versions of their formerly great selves, barely remembered even by their biggest fans. There is just one Blockbuster video store left only a couple of decades after the chain changed all our viewing habits. Anyone remember just how great BlackBerry’s phones were?

If the idea that where you buy and work should reflect your core values is ascendant, there’s still a much tougher task for Mackey and his nonprofit, Conscious Capitalism. In the podcast, I also talked with Alexander McCobin, the CEO of Conscious Capitalism (and the founder of Students for Liberty). The group hopes to pull together companies and startups that share the vision that businesses should care about more than shareholder value. One goal is create a vibrant community that can share experiences and promote best practices, especially for novice entrepreneurs. Another goal is to change the way the world thinks about business.

“We don’t want to just help the businesses out” by sharing advice and building networks, says McCobin. “We want to make sure we’re sharing their stories with the world to change the narrative about business and society. We want to highlight all these businesses and business leaders who are making the world a better place, why business is a force for good, and to encourage people to go into business to make the world a better place.”

The idea that businesses make the world a better place is a point on which virtually all libertarians wholeheartedly agree. It’s common to hear libertarians say that Bill Gates (or Ted Turner, John D. Rockefeller, Henry Ford, etc.) did far more for humanity during his days as a rapacious, profit-driven businessman than he has done as a philanthropist. Isn’t creating cheap, ubiquitous, good-enough software or driving the price of home heating oil down to nearly zero worth more than free money for libraries?

That way of thinking reflects a disconnect that libertarians should engage with and work to resolve within our movement. We aspire to create a world in which individuals are free to pursue happiness in whatever peaceful way they want. We recognize that commerce and work, every bit as much as art, music, and writing, are expressive. Yet we can’t quite celebrate entrepreneurs and titans of industry who change our world unless they admit they’re in it only for the money.

Here’s the full podcast with Mackey and McCobin. Go here to subscribe via RSS, iTunes, and more.

Pearl Jam is at the center of the latest provocation causing outrage among supporters of President Trump.

The Associated Press reports that the band performed in Missoula, Montana, on Monday night for a Rock2Vote concert in support of Sen. Jon Tester (D), who is running for re-election against Republican challenger Matt Rosendale. Bassist Jeff Ament, who is from Montana, collaborated with an artist named Bobby Brown to create a promotional poster for the event. The poster depicts a burning White House and an eagle picking at what many believe to be Trump’s corpse.

Official artwork by Jeff Ament and Bobby Brown from last night’s show in Missoula. #TheAwayShows #Rock2Vote pic.twitter.com/CQI4chGEjs

— Pearl Jam (@PearlJam) August 14, 2018

Rosendale and the National Republican Senate Committee (NRSC) compared the poster to comedian Kathy Griffin’s 2017 video in which she held a bloodied head modeled after Trump’s. Not only did Griffin lose several gigs, but Americans were subjected to weeks of commentary on what does and does not count as a threat against the president.

“In a state Trump won by 20 points, Senator Tester’s silence…is quickly showing Montanans there’s no stoop too low for him when it comes to attacking President Trump and his supporters,” NRSC spokesperson Calvin Moore said in a statement.

“This poster from Pearl Jam is disgusting and reprehensible,” Rosendale tweeted. “It depicts a dead President Trump and a burning White House. It’s time for [Tester] to denounce this act of violence and blatant display of extremism!”

Sunday’s Unite the Right II rally in Washington, D.C., may have been sparsely attended by white nationalists, but it still cost the city at least $2.6 million.

The core Unite the Right group consisted of about two dozen people, although thousands showed up in response, including plenty of anti-fascist (antifa) and Black Lives Matter (BLM) protesters. All those counterprotesters made for a chaotic scene outside the White House. Unsurprisingly, there was a huge police presence in Lafayette Square, where the rally was held, and the surrounding area. Cops guarded the white nationalist protesters wherever they went, and the D.C. Metro even set aside a special train car for them.

According to The Washington Post, the Metropolitan Police Department ran up a bill of $2.5 million on staffing and overtime costs for the event. The remainder of the cost was attributed to other city agencies, including Public Works, Fire and Emergency Medical Services, and Homeland Security and Emergency Management.

Unite the Right II was a sequel to last year’s Unite the Right event in Charlottesville, Virginia, where violent clashes broke out and one counterprotester was killed. In an attempt to prevent a repeat of Charlottesville, D.C. authorities pulled out all the stops. Now the city is hoping it won’t have to pay the $2.6 million out of its own pocket. The Post reports:

The city plans to ask the federal government to reimburse those costs. Congress budgeted $13 million this year for a fund to help the District pay for responses to large-scale protests and events, which are common in the nation’s capital but have become more frequent during the Trump administration.

It’s worth noting that $2.6 million is only an early estimate, according to Anu Rangappa, a spokesperson for D.C. Mayor Muriel E. Bowser. Plus that figure doesn’t take into account what other police departments—including Virginia State Police, Fairfax police, and U.S. Park Police—had to spend. It’s likely the actual cost will be higher.

Some people seemed to think the massive response only validated the white nationalists. “I really think we should just ignore them,” counterprotester Glen Hellman told Reason outside the Vienna Metro station on Sunday morning, where Unite the Right rally participants boarded a subway headed into downtown D.C. “We’re validating them, and that is a problem,” he added, describing himself as “torn” over whether to ignore the rally or protest it

The rally’s tiny size did not stop antifa protesters from getting all riled up. Decked out in black with their faces covered, they screamed chants like, “Any time, any place, punch a Nazi in the face.”

Sen. Elizabeth Warren (D–Mass.) thinks she knows what ails capitalism: There aren’t enough people telling the biggest businesses what to do.

Try to contain your surprise that Warren believes the profit motive is ruining capitalism. She wants the largest corporations in the United States to be legally answerable to people other than their shareholders, and she’s introducing a bill to force it.

Warren’s “Accountable Capitalism Act” would require that corporations that earn more than $1 billion in revenue a year (note “revenue,” not “profits”) would need a federal “charter” in order to operate. This charter would obligate these companies to consider all “stakeholders,” not just shareholders, when making decisions. The bill would also require these corporations to permit employees to elect 40 percent of the company’s board of directors; a super majority of 75 percent of directors and shareholders would have to approve political donations. (Gee, I wonder if somebody will propose something similar for unions?) Shareholders would be permitted to sue the company if they felt its actions were driven purely by profit and did not reflect the desires of its many “stakeholders.”

The justification for all this is the common, economically sketchy claim of income inequality; that the rich are getting richer and that wages are stagnating. Warren complains in a Wall Street Journal commentary that shareholders have “extracted” $7 trillion in profits since 1985 that “might otherwise have been reinvested in the workers who helped produce them.”

That number may look huge when presented this way, but it breaks down to $233 billion a year when calculated over 30 years. The United States’ total Gross Domestic Product for 2016 was more than $18 trillion. (For extra fun homework, imagine taking this to its logical socialist conclusion, and calculate how much money each American would get from that $7 trillion profit figure if it were forcibly redistributed annually over that 30-year period.) Furthermore, Warren’s argument assumes that because the money didn’t get “reinvested” back into workers—in the form of, say, increased wages—those workers did not benefit from whatever it was that money did instead—like improvements to the machinery or software they use.

It’s interesting that progressives (and many nominal conservatives) invoke “economic multipliers” when the government spends our tax dollars on subsidies and grants within the private sector. Entire communities, we are told, benefit when tax dollars are given to just a handful of politically connected firms. That money must acquire some special magic when it passes through a legislator’s hands, because private sector profits apparently just get buried in a great big hole.

The truth is that our marketplace looks nothing like it did in 1985, and this is a good thing. Our options and our technologies have expanded dramatically and are increasingly accessible to more and more people. It’s telling that none of that seems to be a consideration in Warren’s proposal. Here’s a reminder about the entire “growing income inequality” nonsense: Our middle class is shrinking because more people are moving up the economic ladder, not down.

Warren explains that she wants to essentially force these companies to use the “benefit corporation” model, which prizes a set of values above just profits. She notes that successful companies like Kickstarter and Patagonia have embraced such a model, and that it’s legal in several states.

So, stay with me here: If these types of business models are so successful in the American market, then why wouldn’t corporations adopt such a model voluntarily? We shouldn’t need a federal bill at all! And what about companies that are reinvesting? Amazon brings in billions in revenue annually, but has operated for most of its lifetime barely making a profit. That it has recently started to increase its profit margin has inspired headlines over how dramatically their profits have increased. But here’s what it actually looks like over time, courtesy of ReCode:

Amazon made the decision to invest in growth over profits for the long term, and the market has rewarded that decision. Now, it’s getting the profits it passed up for years. Amazon is not legally operating under the public benefit corporation business model, but it certainly did operate for most of its lifespan with priorities other than profit. Yet Warren doesn’t mention Amazon at all in her commentary. Why aren’t they an example of a model corporation?

Warren even complains in her commentary that “companies are setting themselves up to fail” by funneling earnings to shareholders rather than reinvesting them. Assuming this is true, what does this have to do with her? Let them fail. This is why there is a marketplace. Why keep a poorly managed company alive if it’s not creating value and drawing customers?

But Warren isn’t really concerned about businesses failing. She’s worried about the ones that succeed despite operating in ways that she doesn’t like. What she really wants to is put the federal government in a position of evaluating and approving how companies grow. She wants to substitute the decisions of people who run businesses with the prejudices and preferences of people who think like she does. And she wants to use the courts to enforce her ideas of how corporations should be managed.

I brought up Amazon for a reason. Even though Amazon heavily reinvests in its own growth over profits it has constantly been getting crap over its low wages. Under Warren’s bill, employees could essentially use the government to force Amazon to raise its wages. This would have benefited a certain number of employees, but it also would have done so at the expense of the company’s growth. It would be creating fewer jobs. It would be smaller. There are some people who would see this as a good thing, but it could also result in a marketplace where people don’t have the broad access to products and supplies that we have today. And that is not even getting into all the technology investments Amazon is responsible for that are making our lives better in any number of ways and will continue to do so in the future.

Warren says she wants American corporations to be looking out for “American interests.” They are. They’re just not always the same as Warren’s political interests. She doesn’t grasp the difference.

She has an apparently champion for her bill in Matt Yglesias over at Vox. Yglesias has also noted how frequently zoning regulations and NIMBY types keep much-needed urban housing development at bay. So he realizes when too many people have regulatory veto power over market decisions, stagnation is the outcome, and it ends up hurting any number of people. Why would this be any different?

President Donald Trump has set a new record. Since entering the White House in January 2016, Trump has had 24 judicial nominees confirmed to the federal appellate bench by the U.S. Senate. That’s the highest number of federal appellate court judges ever confirmed during a president’s first two years in office.

What do these new judges mean for the future of American law? It depends on the judge.

Take Joan Larsen, who was confirmed to the U.S. Court of Appeals for the 6th Circuit in November 2017. Among her past writings is a strong defense of executive power, including the use of presidential signing statements by her old boss, President George W. Bush. “If circumstances arose in which the law would prevent him from protecting the nation,” Larsen wrote, summarizing the thrust of one such signing statement, Bush “would choose the nation over the statute.”

In other words, Larsen defended Bush for claiming the unilateral authority to ignore the text of the very statute he had just signed into law. This suggests that Judge Larsen will be inclined to vote in favor of expansive theories of executive power while on the 6th Circuit.

Trump’s appellate court picks also include some explicit critics of libertarian legal thinking. Amy Coney Barrett, for example, who was confirmed to the U.S. Court of Appeals for the 7th Circuit in October 2017, has faulted the libertarian legal scholar Randy Barnett for championing a theory of economic liberty that she considers to be unsupported by the text of the Constitution. Furthermore, she has argued in support of the Supreme Court’s current approach in economic regulatory cases, in which the regulation at issue is judged under the highly deferential “rational-basis test.” In Barrett’s view, “deferential judicial review of run-of-the-mill legislation” makes sense because it “is consistent with the reality that the harm inflicted by the Supreme Court’s erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute.”

Along similar lines, Kevin Newsom, who was confirmed to the U.S. Court of Appeals for the 11th Circuit in August 2017, has argued that the federal courts have no business protecting economic liberty from state regulation. This view led Newsom to praise the Supreme Court’s 1873 ruling in The Slaughter-House Cases for its “judicial restraint,” its rejection of “the constitutionalization of laissez-faire economic theory,” and its conclusion that “the 14th Amendment did not safeguard [economic liberties] against state interference.”

Trump’s picks are not all bad news for libertarians, however. Don Willett, who was confirmed to the U.S. Court of Appeals for the 5th Circuit in December 2017, has characterized Slaughter-House as wrongly decided because the 14th Amendment does indeed contain judicially enforceable protections for “the right to earn a living free from unreasonable government intrusion.” As for the sort of judicial deference praised by Newsom, Barrett, and other like-minded conservatives, Willett countered: “Majorities don’t possess an untrammeled right to trammel.”

For better or worse, these new judges are going to leave a mark on the judicial branch. Keep in mind that the U.S. Supreme Court only decides around 75 cases each term, while the federal appellate courts handle thousands, most of which are of course never reviewed by SCOTUS. For all practical purposes, federal appellate judges often preside over the real court of last resort.

The CDC’s latest estimates of opioid-related fatalities in 2017 show that the war on drugs continues to drive people toward deadlier substances. Based on preliminary estimates, the total number of deaths involving opioids (the blue line below) rose by 8.5 percent last year, from about 45,000 to about 49,000. Yet deaths involving heroin (gray line) and prescription analgesics (yellow) fell by 4 percent and 2 percent, respectively. The increase was due entirely to a 37 percent jump in deaths involving synthetic opioids other than methadone (orange), a category that nowadays consists mainly of illicit fentanyl and fentanyl analogs. That increase follows even bigger jumps of more than 70 percent in 2015 and more than 100 percent in 2016.“The death toll reflects two major factors,” writes New York Times health reporter Margot Sanger-Katz. “A growing number of Americans are using opioids, and those drugs are becoming more deadly. Experts who are closely monitoring the epidemic say the second factor most likely explains the bulk of the increased number of overdoses last year.” That much seems clear, since in recent years opioid-related deaths have been rising much faster than the number of opioid users.

Between 2010 and 2016, for example, the number of heroin deaths increased roughly eight times as fast as the number of heroin users. To put it another way, heroin was eight times deadlier in 2016 than it was in 2010. The proliferation of fentanyl-fortified heroin is the most obvious explanation. The most recent numbers suggest that such mixtures have been eclipsed by “heroin” that consists entirely of fentanyl (which is much more potent than heroin) or its analogs (which are even more potent).

“Unlike heroin, which is derived from poppy plants,” Sanger-Katz notes, “fentanyl can be manufactured in a laboratory, and it is often easier to transport because it is more concentrated.” Not only has the crackdown on pain pills driven opioid users toward black-market substitutes that are more lethal because their potency is unpredictable, but the crackdown on heroin has pushed traffickers toward fentanyl, which is easier to make and smuggle, thereby magnifying the uncertainty that can lead to fatal dosing errors. Fentanyl analogs such as carfentanil, which is something like 5,000 times as potent as heroin, further reduce the amount that must be manufactured and smuggled for a given number of doses.

“Unexpected combinations of those drugs can overwhelm even experienced drug users,” Sanger-Katz writes. “In some places, the type of synthetic drugs mixed into heroin changes often, increasing the risk for users. While the opioid epidemic was originally concentrated in rural, white populations, the death toll is becoming more widespread. The penetration of fentanyl into more heroin markets may explain recent increases in overdose deaths among older, urban black Americans; those who used heroin before the recent changes to the drug supply might be unprepared for the strength of the new mixtures.”

The lethal effects of the government’s anti-opioid efforts were entirely predictable and by now should be obvious to anyone who is paying attention. Which apparently does not include the legislators crafting a response. Congress is “debating a variety of bills to fight the epidemic,” Sanger-Katz notes. “Many of the measures, which have passed the House but have not reached the Senate floor, are focused on reducing medical prescriptions of opioids.”

A New Jersey man man with face tattoos has had his conviction overturned after Trenton police detectives were accused of using “suggestive” pictures in a photo array.

According to The Trentonian, Donnell Perry was arrested in connection with the armed robbery of a grocery store in 2015. Prosecutors were able to win their case after the owner identified Perry in a photo array. While Perry maintained that he “didn’t even do anything” at a hearing, he later pleaded guilty to the crime and was sentenced to seven years in prison by the Mercer County Superior Court.

On Monday, a state appeals court ruled in favor of the overturning of Perry’s conviction. According to the ruling, lawyers argued that the witness identification of Perry was inadmissible because of the mugshots detectives used in the photo array. As NJ.com explains that similarly to a lineup, a photo array is supposed to contain a number of similar-looking mugshots. A witness is then asked to look through the mugshots to identify the suspect with more accuracy. In Perry’s case, however, his was the only mugshot that contained face tattoos.

“The identification procedure was impermissibly suggestive because the witness was shown two arrays in which [Perry] was the only person with visible face markings or tattoo,” read the defendant argument in the ruling. The court determined that Perry successfully proved “a substantial likelihood of irreparable misidentification.”

The case will return to the Mercer County Superior Court.

Bret Royle is an Arizona defense attorney currently representing Jose Luis Conde, a 32-year-old man who was pulled over in a traffic stop and later accused of drug possession. In June, Royle gave the Arizona Republic body camera footage that showed officers in the Mesa Police Department beating his client during a January arrest. Reports say Conde was unarmed at the time. He was repeatedly punched and elbowed while being handcuffed just before officers said they found cocaine in his socks. The footage also captures at least one officer mocking Conde as he lays in a pool of his own blood on the floor of the hospital.

Now, the Maricopa County prosecutor is accusing Royle of misconduct.

Prosecutor Riley Figueroa filed a memo to Maricopa County Superior Court Judge Frank Moskowitz saying that Royle engaged in misconduct when he shared the body camera footage with journalists. She reportedly cited disclosure standards found in Rule 15.4(d) of the Arizona Court Rules of Criminal Procedure and asserted that Royle was only allowed to speak publicly on “information contained in a public record,” via ER 3.6. of the Rules of Professional Conduct found in the Arizona state bar.

Arizona Republic reported that it was of legal opinion that Figueroa’s claim was not only an intimidation tactic against Royle, but an attempt to “create a double standard between prosecutors and defense lawyers over who can speak publicly about a public record.” Additionally, lawyers argued that the video in question was to be fully considered “public record.”

“The prosecutor and police are arms of the state. If the prosecutor and police are allowed to speak about a case to the media, defense counsel should be afforded the same rights and privileges to defend their clients under the law,” criminal defense attorney Benjamin Taylor told the publication. Private attorney Tom Irvine said, “The entire policy of the County Attorney’s Office is to chill public access from cases, which is not supported by state law.” While speaking on the body camera footage, Irvine also argued that “just because it’s an exhibit in a case, it doesn’t change the fact that it’s a public record.”

Royle has since asked for the memo to be stricken from the record, saying, “The State’s filing serves no purpose other than to disparage defense counsel’s conduct in this case, a purpose it disguises as alleged ‘concerns about potential jury tainting’ and ‘preserving the record.'”

Regardless of the observations about the behavior being carried out by those in the Maricopa County legal system,

After the initial release of the video, the police department touted a “a process for transparency that requires full disclosure which is not always achievable by the media” in a Facebook post.

They can’t say they didn’t see this coming.

In April, just weeks after President Donald Trump imposed new tariffs on imported steel and aluminum, the highest ranking members of the Senate Finance Committee wrote a letter to Commerce Secretary Wilbur Ross outlining a number of anticipated problems with the department’s plan to grant tariff exemptions to some American businesses. This process—usually referred to as the “tariff exclusion process” in official documents—seemed to lack “basic due process and procedural fairness” warned Sens. Orrin Hatch (R–Utah) and Ron Wyden (D–Ore.) in their joint letter to Ross. They worried that, without mechanisms to ensure transparency and accountability, the tariff exclusion process could be “abused for anticompetitive purposes.”

Four months later, Hatch’s and Wyden’s warnings have proven accurate.

Thousands of American companies have filed more than 33,000 requests for exemptions to the steel and aluminum tariffs, but fewer than 1,500 have been granted and the vast majority remain in limbo. In hearings before Congress and in the media, executives at tariff-hit businesses have complained about the confusing and unresponsive process. The opportunity for cronyism is apparent and U.S. steel manufacturers have, according to multiple media reports, successfully exerted significant control over the exemption-granting process. In short, everything Hatch and Wyden warned about has come to pass—and yet the Department of Commerce has not addressed those concerns.

Instead, the department has left Congress, the American public, and thousands of businesses trying to navigate the exclusion process nearly entirely in the dark. It has not provided even basic information about how the process works, including rudimentary details like which officials are responsible for making final determinations, or the metrics by which those decisions are made.

“It’s very difficult to get ahold of anyone,” at the department, says Todd Adams, president of Sanitube LLC, a family-owned Florida-based small business that manufacturers steel tubes, valves, and fittings for the food and beverage industry.

Adams’ business has applied for several exemptions from the steel and aluminum tariffs, but it has been a costly and time-consuming process for a business with no legal team or lobbyists, he told the House Ways and Means Committee last month.

“When they want to get ahold of me, I’ll get a call at 6:30 at night,” he said. “I’ll try to answer their questions, but it’s a one-way stream of information.”

“The process has just been a fiasco,” Ken McInnis, director of supply chains and global purchasing for RotoMetrics, a Missouri-based tool and die company, told the St. Louis Post-Dispatch this week.

Officially, the tariff exclusion processes for steel and aluminum are outlined on a pair of web pages set up by the Department of Commerce earlier this year. They include bare bones information—links to forms that must be filled out, an explanation of the 30-day public comment period on all applications, and the like—without providing a shred of detail about who is deciding which exemptions get granted, or why, or how. It leaves you with the impression that the department is trying to make a high-stakes game that’s full of political influence look like a rote bureaucratic operation.

In response to requests for more information, a Commerce Department official tells Reason that there are 95 staff and contractors working on the steel and aluminum exclusion requests, with 25 additional contractors currently on-boarding.

But who those people are and what they are being told to do matters—and it matters a lot.

Applications for exemptions that have been denied usually come back with no explanation of why they were not accepted. Rep. Jackie Walorski (R–Ind.), whose office has conducted a review of the waiver applications granted and denied by the Commerce Department, found last month that not a single application has been accepted if U.S. Steel or another domestic steelmaker had objected to its granting. Because there is no publicly available rubric for the granting or denying of exemption application—nor any opportunity to appeal the department’s decisions—businesses are left entirely at the mercy of government officials and the steel lobbyists who appear to be directing the process.

Those are significant “due process flaws that do not exist with respect to most other government procedures,” says Willie Chiang, vice president of Plains All American GP, a Texas-based pipeline company that’s been on the losing end of the exemption process.

“A petitioner’s ability to state its case is limited to the submission of a standardized form and supporting electronic documentation,” Chiang told the House Ways and Means Committee last month. “No forum is provided for interaction with those determining the merits of either the petitioners’ or the objectors’ arguments. In addition, there is no opportunity to respond to objections—even if the objections contain incorrect information.”

It’s a far cry from the “fair and transparent process” that Ross promised in March when the steel and aluminum tariffs were unveiled. At the time, the secretary said that he, “in consultation with other Administration officials, will evaluate exclusion requests, taking into account national security considerations. In that evaluation, the Secretary will consider whether a product is produced in the United States of a satisfactory quality or in a sufficient and reasonably available amount.”

Aside from holding some hearings and sending some letters, Congress has so far not done enough to check the Commerce Department’s power grab.

The latest effort to do something was launched last week by Sen. Ron Johnson (R–Wis.), who wrote to Ross last week on behalf of “a number of Wisconsin business leaders” who “have expressed concerns to me about the uncertainty and arbitrary nature of the exclusion process.”

Johnson has formally requested detailed information that would fill-in key blanks about the exclusion process, including the identities of officials responsible for the final decisions on applications, “the department’s metrics by which it evaluates whether to approve an exclusion request,” and the department’s process for determining whether claims made by businesses objecting to applications—which is to say, domestic steelmakers—are accurate.

If the department provides that information by Johnson’s deadline of August 25, we will gain valuable insights into the tariff exclusion process. But it’s already too late for some businesses, and who knows how long it will be before Congress acts on the information that it may receive next week.

They can’t say they did not see these problems coming. Hatch, who raised a serious of relevant questions all the way back in April, told Reason this week that he continues “to monitor the exclusion process and my concerns about its impact on American manufacturers, businesses and families have only grown.”

But those growing concerns have not turned into action. It’s true that Hatch (and Wyden) peppered Ross with questions during a hearing about the tariff process last month—but those questions have not made the Commerce Department more transparent or forthcoming.

Until the department can provide adequate answers about the tariff exclusion process, and ensure due process for applicants whose requests for exemptions are denied, Congress should move to revoke the administration’s authority for laying tariffs in the first place. After months of asking nicely, it’s time for the elected representatives to play their part in standing up to an opaque, unaccountable, bureaucratic system that seems to be engaged in rampant cronyism at the expense of thousands of American businesses.

Controversial Infowars founder and host Alex Jones has been hit with a lite ban from Twitter.

The social media platform took action Tuesday to restrict the conspiracy theorist’s account for seven days. That means he can’t tweet, retweet, like, or follow. He still has access to his account and can see the tweets other users post.

Twitter’s move against Jones comes the week after it was criticized for not banning him. Other major internet platforms—including Facebook, YouTube, Spotify, and Apple—had completely unpublished and/or removed his professional pages and podcasts. As Reason‘s Zuri Davis noted at the time, all four companies stated that Jones’ inflammatory statements about Muslims, immigrants, members of the LGBT community, and other groups violated their terms of service.

Twitter, though, decided to keep letting Jones use its platform, with CEO Jack Dorsey explaining that “he hasn’t violated our rules. We’ll enforce if he does.”

So why did Twitter finally decide to move against Jones? According to BuzzFeed‘s Ryan Mac, Jones had tweeted a video from Periscope (which is owned by Twitter) in which he called on his followers to have their “battle rifles” ready to defend against the mainstream media, antifa, and others. That likely violated Twitter’s policies prohibiting users from inciting violence.

This is part of the offending Periscope video as captured by Media Matters. https://t.co/eOTjXqXmL9

— Ryan Mac (@RMac18) August 15, 2018

Jones responded Wednesday morning in a video posted to Infowars‘ official account, which was not restricted.

“We have been so careful even to follow [Twitter’s] anti-free speech, kind of university SJW rules, and so a video about Donald Trump needing to take action against web censorship, that is flagged and then gets us suspended for seven days,” he says. “I guess Dorsey is toying with us, or his people are.”

Dorsey et al. may indeed be toying with Jones, but their most recent action against the right-wing host likely won’t placate those who thought Twitter should have banned him in the first place. Of course, as a private company, Twitter is under no obligation to listen.

Partisans on both sides of the aisle want digital speech they don’t agree with be restricted and/or banned. But it’s impossible to please everyone. And by picking and choosing who they censor, Twitter and other internet platforms are likely to make the problems of polarization and information bubbles even worse.