Category: reason

During a phone call with Canadian Prime Minister Justin Trudeau last weekend, President Donald Trump reportedly justified his decision to impose tariffs on Canadian steel and aluminum by invoking…the burning of the White House by British troops during the War of 1812.

At least, that’s what CNN is reporting this afternoon. Here’s how they put it, citing information from “sources familiar with the call: “Trudeau pressed Trump on how he could justify the tariffs as a ‘national security’ issue. In response, Trump quipped to Trudeau, ‘Didn’t you guys burn down the White House?'”

That is, presumably, a reference to the War of 1812, during which British troops invaded Washington, D.C., and set fire to the White House. Despite the war’s name, the burning of the White House actually occurred in 1814. And it wasn’t carried out by Canadians because, well, Canada did not become an independent nation until 1867—or 53 years after the White House burned.

But, sure, whatever. The War of 1812 makes Canada a national security threat in the year 2018, despite our having been allies for the last century, sharing the world’s longest unpatrolled border, and exchanging more than $620 billion in goods last year. The rationales for war with Canada in Canadian Bacon and South Park: Bigger, Longer & Uncut are more grounded in reality.

Sadly, “because you burned the White House” might be the best argument Trump has for tariffs. The national security rationale for steel and aluminum tariffs, published in late February by the Commerce Departmet, argues that American weapons of war depend on steel and aluminum supplies, and so domestic producers must be protected from international supplies that could be cut off in the event of a conflict.

But as I’ve written before, this is nonsense. Any scenario where Canada restricts aluminum exports to weaken U.S. national security occurs in a world where Washington has much bigger problems than domestic aluminum capacity.

But at least this latest episode allows for a unified theory of the two Trump-centric controversies making headlines this week.

After sacking Washington, the British military moved farther up the Chesapeake Bay and laid siege to Baltimore. While that was happening, a Georgetown-based lawyer named Francis Scott Key happened to be aboard one of the British ships, trying to negotiate the release of several Americans taken prisoner during the attack on Washington. His experience became the basis for a poem, “The Star-Spangled Banner,” that now serves as our national anthem—something that also happens to be in the news a bit these days.

And isn’t it at least possible that Trump’s got the War of 1812 on his mind at the moment because his staffers are trying to educate him about his much-beloved anthem?

Trump’s defenders will surely argue that his “burn down the White House” comment was a joke. Maybe so. But Trudeau doesn’t seem to be laughing. During an appearance on NBC’s Meet The Press this weekend, the Canadian PM said “the idea that we are somehow a national security threat to the United States is quite frankly insulting and unacceptable.”

When California’s Proposition 14 was debated and passed in 2010, thereby creating primary elections open to all voters regardless of party registration, activists on the outside of mainstream politics worried that it would amount to a death sentence for third parties. By graduating only the top two primary finishers to the general election, they warned, the new system would lock in the advantage of Democrats and Republicans.

So how did the outsiders fare in yesterday’s California primary? Just eight—five independents, two Greens, and one Libertarian—advanced to compete for one of the 166 electoral positions in November’s general election. And of those, only one finished within 30 percentage points of the front-runner.

The top vote-getter of the group actually won the first round: Steve Poizner, California’s insurance commissioner as a Republican from 2007-2011, ran for his old job this time as an independent, getting 41.3 percent of the vote to Democrat Ricardo Lara’s 40.6 percent. But Poizner will have a fight on his hands given that the third place finisher (with 13 percent of the vote) was also a Democrat, Asif Mahmood. Rounding out the insurance commissioner vote was Nathalie Hrizi of the Peace and Freedom Party with 5.1 percent, which was higher than any other third-party candidate for California’s eight statewide elected offices. (The best of the four Libertarian Party showings for those posts was Gail Lightfoot’s 2.4 percent for secretary of state, good for fifth place.)

Three of California’s country-topping 53 seats in the House of Representatives will be contested in November by candidates without a “D” or “R” next to their name. Independent Ronald Paul Kabat should be chum for Rep. Jimmy Panetta (D-Monterey), the Green Party’s Rodolfo Cortes Barragan will tilt at the windmill of Rep. Lucille Roybal-Allard (D-East L.A.), and Green Kenneth Mejia beat out Libertarian Angela McArdle, 12.1 percent to 8.5, for the opportunity to get clobbered by Rep. Jimmy Gomez (D-Los Angeles).

Two other Libertarians lost close races to non-major-party finalists for State Senate. In Sacramento, rising start L.P. activist Janine DeRose finished a close fourth, with 10.4 percent of the vote, while independent Eric Frame moved onto the gold medal round with 14.6. In the South Bay, Mark Herd fell just short of independent Baron Bruno, 11.4 percent to 13.2. In State Assembly contests, aerospace engineer Alan Reynolds, a self-described “independent moderate centrist,” finished second with 28.4 percent in a race against two Pasadena Democrats.

So is all hope lost for the Libertarian Party this November? No! L.P. State Secretary Honor “Mimi” Robson advanced to the knockout round for State Assembly representing the great city of Long Beach with 17.4 percent of the vote, elbowing out a Democrat (13.6 percent) and Green (10.1) for the right to go up against incumbent Democrat Patrick O’Donnell. And Calimesa Mayor Jeff Hewitt, arguably the most effective L.P. politician in the state, made it to the finals of the Riverside County Board of Supervisors election, running on a platform of reforming public-sector pensions.

Having 166 electoral slots contested by just eight non-traditional pols—seven of whom are massive underdogs—does not sound like much. And as the great Richard Winger of Ballot Access News points out, “It appears that in November 2018, there will be only four states with no third party candidates on the ballot for any statewide race: Alabama, California, Maine, and Washington.” That latter state pioneered the top-two open primary back in 2004.

Still, I recall in many election years past looking at a map of California districts and being able to draw a path for hundreds of miles before arriving at a contested House election; yesterday, only three of 53 House races featured just one candidate, and 25 had at least some third-party or independent challenger. I still think (unlike my former colleagues at the L.A. Times) that the law is a bad deal for third parties, which face obstacles enough in a system whose rules are largely crafted by our two 19^th century holdovers. But the results are interesting to chew on.

In their haste to condemn the negative, unemployment-inducing effects of minimum wage laws, some free-marketeers are giving these forced pay hikes undue credit for spurring technological innovation.

Witness the reaction to McDonald’s CEO Steve Easterbrook’s recent comments that the fast food giant would be rolling out self-serve kiosks in 1,000 stores each quarter, with the hopes of having them in all their American locations by the end of 2020. Several websites were quick to pounce on this as another example of minimum wage increases displacing the workers they are supposed to help.

“McDonald’s introducing self-serve kiosks that don’t need minimum wage,” says the headline at Fast Company. “Workers complaining because McDonald’s would not raise their wages might want to start looking for other jobs sooner rather than later,” cautions Hank Berrien over at the Daily Wire.

“The Fight for $15 [campaign] has been proclaimed a success everywhere it brought about an increase in the minimum wage but, as almost anyone could have predicted, the end result is going to be more automation and, probably, fewer jobs,” writes Hot Air‘s John Sexton, himself a former McDonald’s employee.

Similar articles in Forbes and ZeroHedge have greeted past rollouts of these self-serve kiosks. Conservative Twitter is happy to reiterate the point with memes and sarcastic hashtags.

The minimum wage does indeed fuel unemployment, and these commenters’ hearts are in the right place for lampooning the policy. But fingering these kiosks as an example of the minimum wage’s ill effects gives the regulation undue credit for an otherwise positive development while ignoring the real costs of the policy.

For starters, McDonald’s has stressed time and again that its adoption of these kiosks is less about avoiding the costs of human workers and more about capturing the benefits that come with the new technology. As company spokesperson Terri Hickey told Buzzfeed yesterday, customers appear to be more likely to place larger orders when interacting with one of these kiosks.

Hickey adds that the “restaurants are transitioning some roles to more customer engaging positions like Guest Experience Leaders and table service.” James Wehner, the chain’s director of global digital experience, said much the same thing to the trade publication Kiosk Marketplace last year, arguing that self-service kiosks were either having no effect on staff levels or in some cases increasing them because of the boost the machines were giving sales.

That is, of course, the sort of thing you’d expect them to say. After all, replacing workers with machines is bad PR. But marketing material from kiosk manufacturers also suggests that the main draw of these devices is not savings on labor costs.

When the kiosk maker Zivelo touts the advantages of its products, for example, it cites more accurate order-taking, easier upselling, faster ordering, and enabling companies to “redeploy the workforce to more strategic customer retention and dining room management initiatives.” Notably missing is any mention of reduced labor costs.

If you’re trying to discern the negative consequences of the minimum wage, you should focus less on flashy new machines and more on mundane responses, like job losses, hours cuts, and higher prices.

Seattle, one of the nation’s early adopters of a $15 minimum wage, is a great example. In June 2017, the University of Washington found that the city’s wage law had actually cost low-income workers $125 by reducing the number of jobs and workable hours available.

At the time I asked Mars Maynard, general manager for the Seattle bookstore Ada’s Technical Books, how his business was responding. “We have changed our store hours a little bit, we have changed our staffing hours, we’ve reduced staffing hours, and we have raised prices,” said Maynard. Automation did not come up.

When Minneapolis was preparing to raise its minimum wage a couple weeks later, Steve Minn—the owner of several affordable housing complexes in the city—told me he’d likely compensate for the new costs by reducing the frequency of janitorial service, not by buying more Roombas.

Minimum wage laws do a lot of bad things, but those new kiosks at McDonald’s are not among them.

Social Security will be insolvent by 2034, three years earlier than previously expected, and one major fund within Medicare will run dry by 2026, according to a report released Tuesday by the trustees of the two programs.

If you’re like me—a 31-year-old who has never harbored any expectation of receiving benefits from either program—then you might have greeted the news with a small degree of cynical relief. This means you’ll only have to spend another decade or so throwing a portion of your paycheck into the black hole that is Social Security and Medicaid, right?

It’s fine. You can have a moment to celebrate. Go ahead. I’ll wait.

OK. By now, that feeling of relief should already be settling into the pit of your stomach and transforming into pangs of fear and loathing. The people responsible for solving this looming crisis—and for mediating what’s sure to be a nasty debate over the future of both programs—spent yesterday acting like there is hardly anything more important than a bunch of rich jocks showing appropriate fealty to the president’s opinions.

In other words, we are screwed.

Let’s review. Social Security is a $900 billion program that provides income to 67 million Americans. About 47 million of them are over age 65, and the majority of the rest are disabled. If you’re within 15 to 20 years of that threshold, you might not be relying on that income yet, but you’re likely to be depending on it in your future financial plan—if you have one.

Medicare provides health care benefits to about 57 million older Americans—more than twice as many people as had their health insurance disrupted by Obamacare. And you remember how big of a deal that (rightly) was.

It is important to remember that insolvency is not the same as bankruptcy. By 2026 and 2034, respectively, Medicare and Social Security will not have enough money to pay the full cost of their obligations, but that’s not the same as saying they’ll have no money at all. According to the trustee report, Social Security beneficiaries will face a 21 percent across-the-board benefit cut when insolvency hits. Medicare’s insolvency will hit first in the program’s hospital fund; without changes that will only be able to pay for 91 percent of costs. And then that number will steadily decline, barring serious reform.

None of this is to suggest that these programs are in themselves worth saving. They are dinosaurs that were designed more than half a century ago for an entirely different workforce and population. For example, when Social Security launched in 1935, the average life expectancy for Americans was 61. Yes, that means the average person died four years before qualifying for Social Security benefits.

Today, the two programs function mostly as a giant conveyor belt to transfer wealth from the young and relatively poor to the old and relatively rich, allowing the average person (who now lives to be 78) more than a decade of taxpayer-funded retirement. Entitlements are also the primary drivers of our national debt, which just hit $20 trillion and is on pace by the mid-2020s to reach levels not seen since World War II.

They are not working. They should be completely revamped.

But do you really believe that Congress and the president are up to the task? They might not even pass a budget this year. Nothing on entitlements will be done before the midterms, and the 2020 presidential race will begin as soon as the last votes are counted on November 6 of this year. Normally, a presidential race could be a good opportunity to debate the future of two of the federal government’s biggest expenditures, but these are not normal times.

By the time 2021 rolls around, maybe someone will be ready to do something about Tuesday’s news. About the entitlements, I mean, not about whether football players stand for the national anthem.

When that happens, both programs should be restructured to take care of the truly needy, rather than being benefits for anyone who has reached an arbitrary age. As Reason‘s Nick Gillespie and Veronique de Rugy wrote in a still-very-relevant 2012 feature on the future of America’s entitlements, “Focusing on those truly in need instead of automatically shoveling out larger and larger amounts to well-off senior citizens is the best way to avert looming fiscal catastrophe and restore some morality to an indefensible system.”

The catastrophe part is pretty unavoidable, thanks to basic demographics. As The Wall Street Journal notes, there were 2.8 workers for every Social Security recipient last year. That’s down from 3.3 in 2007, and that’s way down from the 5.1 workers per beneficiary that existed in 1960.

Those demographics are destiny. As America ages, this year will mark the first time since 1982 that Social Security has spent more money than it takes in. The Committee for a Responsible Federal Budget, a nonpartisan think tank that favors balanced budgets, notes that the gap will continue to grow, leaving the program with a $900 billion combined deficit over the next decade. (For some useful, if morbid, information, check out the committee’s calculator to see how old you’ll be when Social Security goes kaputt.)

In the face of that threat, Treasury Secretary Steve Mnuchin issued a statement yesterday promising to do nothing and hope everything turns out okay.

“Tax cuts, regulatory reform, and improve trade agreeements will generate the long-term growth needed to help secure these programs and lead them to a more stable path,” Mnuchin said. “Robust economic growth will help to ensure their lasting stability.”

This has been a go-to play for the Trump administration. Last year, when various independent projections showed that the Republican-backed tax bill would add $1 trillion to the national debt, even after accounting for economic growth, the Treasury put out a one-page “analysis” promising that future economic growth and politically impossible budget cuts would somehow make the whole thing balance.

“A well-functioning democracy would, by now, have had a mature national discussion marked by a recognition of the need to set priorities among finite resources, as well as the intergenerational unfairness of the status quo, the ethical wrongness of borrowing for current consumption instead of investing in the future, the feasibility of alternative remedies if only we would start now, and so on,” writes Mitch Daniels, former governor of Indiana and the current co-chair of the CRFB, in today’s edition of The Washington Post. “Regrettably, but realistically, our republic at this point doesn’t seem capable of discussions like that.

“What we’re seeing is a fast slide down a very slippery slope toward designer babies,” warned Marcy Darnovsky on NPR’s Morning Edition today. She portentuously added, “We could see parents feeling eager to give their children traits like greater strength, needs less sleep. Some people are saying that, ‘Yes, there are genes for IQ and we could have smarter babies.'”

What has alarmed Darnovsky, a left-wing bioconservative from the Center for Genetics and Society? The fact that specialists at the Nadiya fertility clinic in Ukraine have used pronuclear transfer to help some parents to give birth to healthy babies.

First, a bit of biology. Every human egg cell contains between 100,000 and 600,000 energy-producing mitochondria floating in the cytoplasm outside the cell nucleus. While the vast majority of the DNA that makes up our genomes resides inside the nuclei of our cells, each mitochondrion has its own small genome consisting of 37 genes. Mutated mitochondrial genes can can cause disease. It is estimated that mitochrondrial diseases are one of the most common groups of genetic diseases, with a minimum prevalence of greater than 1 in 5000 in adults.

Pronuclear transfer is used in cases where the mitochondria in a woman’s eggs are mutated in some way that would produce disease in her children or cause her infertility. The procedure involves removing the two pronuclei, or unfused nuclei, of the egg and sperm from a day-old embryo and transfering them into an enucleated donor egg containing healthy mitochondria. Babies born via this technique thus have genes derived from three people: the nuclear genes from the mother and father, plus a comparatively tiny number of mitochondrial genes from the egg donor. Hence the sobriquet “three-parent babies.”

Since mitochondrial DNA is inherited from a baby’s mother, female children born using this technique will pass along the healthy donor mitochondria to their progeny. Bioconservatives like Darnovsky decry this as germ-line genetic engineering.

“It is pioneering work,” the Columbia biologist Dietrich Egli said in the NPR story. Not exactly. The real pioneers were fertility specialist Jacques Cohen and his colleagues at St. Barnabas Hospital in New Jersey, who successfully used a similar technique back in 2001 to help women give birth to 17 babies. Instead of tranferring the pronuclei, as is done in Ukraine, Cohen transferred ooplasm containing mitochondria from healthy donor eggs to the eggs of women experiencing infertility. This prompted some similarly overwrought worries about designer babies, and the Food and Drug Administration (FDA) in 2001 essentially banned the procedure by asserting that ooplasm transfer was an “investigational new drug” requiring agency approval.

In 2016, the National Academy of Sciences issued a report endorsing the use of mitochondrial replacement therapies (MRT) in embryos to help parents have healthy babies. One catch: The report said it should only be used to produce boys, thus mitigating the possibility that the donor mitochondria would be passed along to future generations. But even that cannot proceed in the U.S. Since 2015, Congress has included provisions in its annual federal appropriations laws that prohibit the FDA from accepting applications for clinical research using MRT. Therefore, clinical research using MRT in human beings cannot legally proceed in the United States.

In light of this prohibition, American fertility specialist John Zhang in 2016 performed a successful pronuclear transfer in Mexico for a Jordanian woman burdened with the mitochondrial mutation associated with Leigh’s Disease. The illness causes brain lesions, which killed her first two children. In August 2017, the FDA sent a letter to Zhang ordering his Darwin Life Company to cease marketing the MRT treatment on its website in the United States.

Now NPR is reporting that the Ukrainian scientists have formed a company, Darwin Life-Nadiya, with a New York clinic to market the service to U.S. women willing to travel to Ukraine. Ukrainian women will pay about $8,000 for the procedure; for foreigners, it’ll be about $15,000. Hopefully the FDA will be more tolerant this time. So long as our Congress, our regulators, and the majority of our bioethicists continue to stand in their way, Americans suffering from the burdens of genetic disease and hoping to give birth to healthy children will be sadly forced to engage in this kind of reproductive medical tourism.

But what about Darnovsky’s claim that MRT is the beginning of a fast slide down a very slippery slope toward designer babies? Bring it on. Parents using modern biotechnology to endow their children with longer, healthier, smarter, and perhaps even happier lives? It’s hard to see any ethical problem with that.

For more background, see my lecture in Moscow on “Designer Babies and Human Enhancement”:

Within hours of President Donald Trump’s declaration last week that the United States will begin imposing steel and aluminum tariffs on Canada, Mexico, and the European Union, leaders of those countries offered sharp criticisms of Trump’s protectionism and defended the importance of free trade.

Those remarks stand in sharp contrast to the actions those same leaders have taken in response to Trump’s tariffs.

“The government of Canada is confident that shared values, geography and common interests will ultimately overcome protectionism,” Canadian Prime Minister Justin Trudeau proclaimed. Then he took steps to impose a 25 percent tariff on American steel and a 10 percent tariff on several other American goods, including maple syrup, whiskey, and various aluminum products, effective July 1.

The Mexican government’s statement was equally high-minded: “Mexico reiterates its position against protectionist measures that affect and distort international commerce in goods.” Its actions, meanwhile, were equally irreconcilable with that anti-protectionist rhetoric: It announced new tariffs on American steel and various food items, including pork and bourbon.

The European Union—whose foreign policy chief, Federica Mogherini, promised “no protectionism” back in March—now promising $7.5 billion’s worth of tariffs on various American goods beginning June 20.

Trump could damage the American economy by leading the country into a trade war with some of its top allies and trading partners, but those other countries’ responses are self-destructive too. America may be shielding itself from greater competition and lower consumer prices, but that doesn’t mean that the E.U., Canada, and Mexico should do the same.

Free trade is beneficial even when it’s unilateral, points out Veronique de Rugy, a senior research fellow at the Mercatus Center (and a Reason columnist).

“The only argument for retaliation is to remind the world that trade wars are neither painless nor easy to win, but it is going to be a high price to pay,” she says. “The thing that people don’t seem to understand is that, based on the studies out there, when you retaliate, you take a policy measure that hurts your own people, with no exceptions.” Through their retaliation, these governments are forcing their citizens to pay higher prices for the same goods and services. They’d be better off if they abandoned the absurd games of tit-for-tat that have long dominated trade policy, and instead embraced the prosperity that comes from genuinely open trade over national frontiers.

After meeting with reality TV star Kim Kardashian West, President Donald Trump has reportedly commuted the sentence of Alice Marie Johnson, sentenced in the mid 1990s to life without the possibility of parole for her non-violent involvement in a drug conspiracy.

Johnson, 63, rose to national attention after Mic.com published a video of her speaking about her case from federal prison, where she has resided for the last 21 years due to her role in a cocaine trafficking conspiracy.

CAN-DO, a clemency nonprofit founded by former federal prisoner Amy Ralston Povah, ranked Johnson’s case atop their list of female federal prisoners serving disproportionately long sentences. Former federal prosecutor-turned-clemency advocate Mark Osler also promoted Johnson’s case in a recent appearance on CNN.

Kardashian West became an advocate for Johnson after seeing the website’s video, according to Mic.com. In 2017, Kardashian West asked her own lawyer to work on Johnson’s clemency petition, and reached out to Jared Kushner, Trump’s son-in-law and White House advisor, to discuss Johnson’s case. Kardashian was able to meet with Pres. Trump at the White House in late May, where the two reportedly discussed Johnson’s case and criminal justice reform.

Great meeting with @KimKardashian today, talked about prison reform and sentencing. pic.twitter.com/uOy4UJ41JF

— Donald J. Trump (@realDonaldTrump) May 30, 2018

Talking heads derided the meeting, with CNN’s Jim Acosta saying, “[Kardashian West] shouldn’t be here, talking about prison reform, it’s very nice that she is here but that’s not a serious thing to have happened here at the White House.”

Yet this was not the first time a celebrity has played an integral role in securing a commutation, which is when a president or governor shortens a prisoner’s sentence by pen stroke. Record executive Jason Flom met with Pres. Bill Clinton about clemency in the late 1990s, and those conversations ultimately resulted in 17 commutations at the end of Clinton’s second term.

If past commutations are any indication, Johnson will likely experience a period of supervised release after she leaves prison.

A lot of ink (and pixels) was spilled over the fact that Sen. Dianne Feinstein (D-Calif.) lost the support of her own state party for her re-election. Members of the California Democrats instead threw their endorsement to one of her many challengers, state Senate leader Kevin de Leon.

Well the results of yesterday’s primaries aren’t official, but unless some sort of miracle happens, Feinstein absolutely wiped the floor with de Leon. With more than 97 percent of the vote counted, Feinstein is ahead of de Leon, 43.9 percent to 11.9 percent.

At least de Leon hit double-digits. Most other Democratic challengers didn’t even hit 1 percent. If you added up the votes of every Democratic challenger to Feinstein and combined them, they didn’t even get half as many votes as she did.

The good news for de Leon (and the bad news for Californians who want actual election choices) is that he’ll probably get a second chance to unseat Feinstein in November. De Leon is currently ahead of the top Republican challenger, James P. Bradley, who has 8.8 percent of the vote. Thanks to California’s terrible “top two” primary, Californians will have the “choice” of two Democrats on the November ballot. The same thing happened in 2016, allowing Kamala Harris to breeze her way into the Senate on the strength of institutional support and name recognition. Many Californians who cast their ballots didn’t even bother with the Senate election because of the lack of actual choices. Don’t be surprised if that happens again this November.

I joked yesterday that yesterday’s vote was the “National Media Finally Learn How California’s Elections Work” primary. The Golden State’s elections typically do not get huge amounts of national attention, given how predictable our voting habits are (both in the blue coastal enclaves and the red inland communities). But the midterms this year are all about whether there’s a real “blue wave” that could change which party controls Congress. The possibility that some seats in California could change party hands led to increased coverage of California politics, and curiosity about whether the state’s increasingly Democratic cast meant that Feinstein (a nannyish big-government liberal who consistently supports the national security state and has only recently finally come around on marijuana legalization) was no longer “left” enough for Californians. This sudden interest resulted in some “Is Feinstein going to lose her primary?” analysis from folks who didn’t quite seem to understand the way California’s system works. Once journalists grasped the system, the story became about whether the open primaries could lead to Democrats being “locked out” of the November vote in some important House races. That does not appear to be happening.

Feinstein’s easy win here is as a corrective to the narrative there’s some sort of insurgent, even-further-left-wing, socialist/progressive, Bernie Sanders–fueled takeover of the Democratic Party brewing. Such an insurgency obviously exists, but we’re not seeing indicators that it represents the party’s future. It’s more a growing sense among some people that the party doesn’t represent them.

Not that Republicans in California are faring any better. As of the end of May, more voters in California are registered as independents than as Republicans. But thanks to California’s run-off elections, the fall ballot won’t reflect the diversity of the voters’ political identities.

Harvard law professor Noah Feldman worries that the recent First Amendment ruling against Donald Trump’s blocking of critics on Twitter could ultimately result in legal restrictions on the ability of social media companies to exclude users or regulate their speech. “This is the first time, to my knowledge, that the First Amendment has ever been applied to a private platform,” Feldman writes in a New York Times op-ed piece. He warns that “applying the First Amendment to social media will make it harder or even impossible for the platforms to limit fake news, online harassment and hate speech—precisely the serious social ills that the world is calling on them to address.”

Feldman argues that “social media should not become a pure free-speech zone,” that “the speech-based online abuses of our age need to be addressed not by the government but by the platforms on which they occur,” that “the platforms’ free-speech rights impose moral obligations on them,” and that “the free market will ensure that the platforms do their best to comply.” I agree with pretty much all of that, but I don’t agree that the Twitter decision, properly understood, poses a threat to those principles.

U.S. District Judge Naomi Reice Buchwald’s May 23 ruling against Trump was not, in fact, the first time a public official has been rebuked for violating the First Amendment by excluding people from a social media account because of the opinions they expressed. Last July, for instance, a federal judge in Virginia, James Cacheris, concluded that Phyllis Randall, chair of the Loudon County Board of Supervisors, had violated a local gadfly’s First Amendment rights by banning him from her Facebook page after he posted a comment suggesting that members of the county school board had taken official actions that benefited their relatives. After that ruling, Maryland Gov. Larry Hogan decided to settle a lawsuit by visitors to his Facebook page who complained that his office had deleted their comments and blocked them from posting because they had brought up a touchy subject by urging Hogan to criticize Trump’s ban on travelers from seven Muslim-majority countries.

In all three cases, elected officials used their social media accounts to conduct government business and presented them as conduits for communicating with their constituents while inviting responses from the general public. By doing so, the plaintiffs argued, the officials had created designated public forums, which cannot constitutionally discriminate against people based on their views. The lawsuits accused government officials, not Twitter or Facebook, of violating the First Amendment, which does not constrain private parties and in fact gives them a right to decide which speech will be allowed on their platforms. A similar analysis would apply to a town meeting in a rented hall or a government website on servers owned by a private company.

Feldman nevertheless sees a threat of judicial control over speech regulation by social media companies. “It’s not only people specifically blocked by President Trump’s account who can’t reply to him on Twitter,” he notes. “It’s also anyone excluded from Twitter by the platform itself, including those barred from Twitter for engaging in harassment or hate speech. Such parties may now sue Twitter, demanding access to the platform so they can post comments on Mr. Trump’s account.”

Anyone can sue anyone over anything, but that does not mean they can survive a motion to dismiss, let alone win. Buchwald’s decision, like Cacheris’s, focused on the actions of a government official; it said nothing about the supposed First Amendment obligations of a social media company. Loosely speaking, Buchwald affirmed a First Amendment right to follow the president on Twitter. But it would be more precise to say she affirmed a First Amendment right not to be blocked from the president’s Twitter account (specifically, the “interactive space” associated with his tweets) by the president (or his underlings) because something you said offended him. Trump is appealing the decision but in the meantime seems to be complying with it by unblocking the plaintiffs.

“If President Trump was able to create a public forum on Twitter without Twitter’s agreement to such a legal state of affairs,” Feldman says, “then it becomes more plausible to think that Twitter itself is a public space, regardless of whether it intends to be one.” Only if you ignore the crucial distinction between government action and private action when applying a constitutional provision that is explicitly aimed at the former. So far there is no evidence that the federal courts are inclined to do that.

Residents of Santa Clara County, California, voted yesterday to recall Aaron Persky, the superior court judge widely criticized for sentencing Stanford student Brock Turner to just six months in prison.

Turner was convicted in 2016 of sexually assaulting an incapacitated woman. Prosecutors had sought a six-year sentence, but Persky thought Turner probably wasn’t a danger to others and was concerned a lengthier prison stint would adversely impact him.

This outraged Stanford law professor Michelle Dauber—whose daughter is friends with Turner’s victim—and so Dauber launched a now-successful campaign to have Persky recalled from office. The point of the recall was to hold “white, privileged men accountable,” Dauber told The New York Times.

The prison component of Turner’s sentence was indeed lenient. But a simple fact has often been absent from this conversation: The six-month sentence wasn’t Persky’s idea, but rather the recommendation of the probation department. And even if Turner should have spent more time behind bars, he is still registered as a sex offender and likely will be for the rest of his life. He will have trouble finding a place to live, holding a job, and interacting with young people. Sex offenders are treated as pariahs and must obey onerous restrictions, even in cases where they pose almost no risk to others.

But even people who can’t muster any sympathy for Turner should still be concerned about what message Persky’s recall will send. I understand why members of the Stanford community were upset about the lenient treatment of Turner, and it’s easy to imagine white privilege had something to do with it. (The California Commission on Judicial Performance, it must be noted, found no “clear and convincing evidence of bias” in Persky’s decision-making.) But this recall is likely to encourage judges to be tougher in general lest angry voters come for them too. This was a blow to leniency for all criminal defendants.

Evidence already exists that judges impose harsher sentences around election time. According to a 2015 Brennan Center study, “The pressures of upcoming re-election campaigns affect judicial decision-making in criminal cases, making judges more likely to impose longer sentences, affirm death sentences, and even override sentences of life imprisonment to impose the death penalty.” When judges are subjected to normal political considerations, they unsurprisingly behave like politicians, for whom being tough on crime is usually a winning stance.

That’s one reason LaDoris Cordell, a retired California judge and self-described liberal feminist, vehemently opposed the recall effort, according to The Times:

Ms. Cordell wears her liberal stripes proudly, but she said she is worried the recall effort could influence judges who might otherwise show leniency in criminal sentencing, undermining a longtime goal to decrease the prison population. The impulse toward harsher sentencing, she said, is reminiscent of the measures that have fed large increases of prison populations, like California’s three-strikes law, which imposed an automatic life sentence for a third felony conviction.

Progressives who support criminal justice reform, the repeal of mandatory minimum sentencing, an end to mass incarceration, and rehabilitation should pause before cheering the recall of Judge Persky. The window to punish Turner has shut. The next person to come before a California judge might be a far less privileged defendant, hoping for mercy and less likely to get it.