Category: reason

The First Amendment prohibits President Trump from using his personal Twitter account to block critics, a federal judge in Manhattan ruled today.

U.S. District Judge Naomi Reice Buchwald, a Clinton appointee, said that Trump’s occasional use of Twitter’s blocking feature violates his critics’ rights to free speech. “The blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment,” Buchwald wrote.

It’s a somewhat bizarre decision, writes Declan McCullagh.

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On May 14, University of Akron professor Liping Liu sent an email to his class sections saying certain categories of students—including women—may see their grades “raised one level or two.” Liu claimed his approach was a part of a “national movement to encourage female students to go [in]to information sciences.”

Fortunately, the plan appears to have been vetoed. Asked for comment, university officials say that “no adjustment in grades along the lines suggested by the professor has occurred or will be permitted to occur.” But Liu’s suggestion is still troubling, writes Liz Wolfe.

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Because nothing says “patriotism” quite like ordering people under penalty of a fine to stand up during the National Anthem, the taxpayer-soaking cajillionaires who run the National Football League have announced a new policy of fining any team caught having an employee sitting, kneeling, or acting disrespectfully on the field while “The Star-Spangled Banner” plays before a game.

“We want people to be respectful of the national anthem,” explained NFL Commissioner Roger Goodell. “We want people to stand…and make sure they treat this moment in a respectful fashion. That’s something we think we owe. [But] we were also very sensitive to give players choices.”

Thus continues a controversy that began with then–San Francisco 49ers quarterback Colin Kaepernick sitting during the anthem in an August 2016 preseason game to protest police brutality; that continued that fall with various players kneeling, locking arms, and putting fists in the air; then nearly petering out to maybe a dozen anthem refuseniks until President Donald Trump told an Alabama rally last September, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now, out, he’s fired. He’s fired!'”

Excited by how such nakedly pointless culture-war baiting was getting his base “stirred up,” the president piled more worms on the hook. He sent Vice President Mike Pence to attend (and showily walk out of) an Indianapolis Colts game that featured an offensive non-stander. He even dragged the controversy into his State of the Union Address. (In fairness, the state of our union is that we bicker endlessly over this kind of phony bullshit while our elected officials misuse billions and billions of our dollars, including on professional sports franchises.) The NFL, whose owners lean Republican and whose ceremonial accoutrements have long been suffused with militaristic displays of patriotism, has been agonizing over anthem etiquette ever since.

Under the new policy, players will have the option (which they enjoyed before 2009) of sitting the anthem out inside the locker room. Also, in addition to the league fining the employers of the star-spangled scofflaws, teams themselves will have the discretion of fining non-compliant players. Goodell surely hopes that such fraught solicitousness to White House feelings will be greeted as a stately compromise, and maybe players will indeed roll their eyes and get on with their lives.

But there’s something pathetic and insecure about the whole exercise. The United States is a patriotic and religious country that (rightly!) loves its damn sports, especially the homegrown troika of football, baseball, and basketball. Enforcing that love through coerced rituals and Pentagon product placements is not a projection of strength; it’s an expression of weakness. Saying “How high?” when a president says “Jump!” is behavior suitable for a royal subject, not an American citizen. Rewarding politicians for playing fan bases off of one another—unless it’s Red Sox–Yankees, in which case the old Iran-Iraq rules apply—isn’t cheeky-clever, it’s creepy-vulgar.

Have some damned confidence, America, and stop listening to confidence men.

Now, for some postgame analysis, here’s Ken White:

Political correctness is ruining free speech in America. To fight it, we insist that professional athletes participate in nationalist rituals in the proscribed fashion without expressing any views, to avoid offense. To do otherwise would endorse snowflakes and their safe spaces.

— HerebyDemandHat (@Popehat) May 23, 2018

Last week the Wisconsin Supreme Court unanimously ruled that defendants need not be informed that pleading guilty to certain sex crimes will subject them to lifetime GPS monitoring because that requirement is not a punishment. In reaching that conclusion, the court relied on a widely cited but fictitious recidivism estimate as well as the familiar but dubious assumption that a state’s asserted interest in promoting public safety justifies the burdens and restrictions it imposes on sex offenders long after they have completed their sentences.

Under Wisconsin law, people convicted of serious sex offenses involving minors are required to wear GPS transmitters on their ankles for the rest of their lives unless they leave the state, become permanently incapacitated, or successfully petition a court for relief after 20 years. The Department of Corrections reviews tracking data every night and receives alerts whenever an offender leaves an “inclusion area,” enters an “exclusion area,” or tampers with his GPS device. Malfunctions and signal loss that cause erroneous alerts can lead to arrest, jail, and loss of employment.

The court notes that the tracker, which “can cause blistering, especially when wet,” creates a noticeable bulge and is visible whenever the offender wears shorts or sits down. It includes a speaker than can be used to issue commands or reminders, which “can be heard by anyone within earshot of the offender,” who has to sit near an electrical outlet one hour a day to recharge it.

In addition to facilitating constant surveillance, then, GPS tracking conspicuously marks anyone who wears it as someone to be shunned, feared, despised, and perhaps worse. That mark of shame compounds the stigma associated with registration as a sex offender, which also entails restrictions on where people can live, work, or “loiter.” But according to the Wisconsin Supreme Court, the public shaming is incidental to the main purpose of GPS tracking, which is regulatory rather than punitive. “In light of the ‘frightening and high’ rate of recidivism for sex offenders,” the court says, “the relatively minimal intrusion of lifetime GPS tracking…is not excessive in relation to protecting the public.”

That “frightening and high” quote comes from a 2002 opinion by Supreme Court Justice Anthony Kennedy, who asserted that “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” Kennedy seems to have gotten that number from Solicitor General Ted Olson, who cited a DOJ manual that in turn relied on an unreferenced 1986 estimate in Psychology Today. That estimate has been debunked repeatedly and repudiated by its original source. It nevertheless lives on in the decisions of courts across America, justifying all manner of restrictions on sex offenders.

The continued reliance on fanciful recidivism numbers can be crucial in cases like this, where the difference between a regulation and a punishment depends partly on whether the burdens imposed by a law are disproportionate to its impact on public safety. If the annual risk that a sex offender will commit a new crime is not “frightening and high” but, as the evidence indicates, low and shrinking over time, forcing a 70-year-old who served time for a sex offense half a century ago to continue wearing a GPS transmitter makes even less sense than it does on its face.

Another important factor in the Wisconsin Supreme Court’s decision was the supposed constitutionality of continuing to imprison sex offenders after they have completed their sentences, which SCOTUS has said is fine as long as you remember to call the place where they are confined a “treatment center” rather than a prison. “Lifetime GPS tracking,” the Wisconsin Supreme Court says, “provides a middle ground between releasing dangerous sex offenders into the public wholly unsupervised and civil commitment.”

In other words, if you are required to wear a conspicuous ankle monitor that is used to keep you in your “inclusion areas” and out of your “exclusion areas” for the rest of your life, you should shut up and be grateful that you get to walk about in public at all. When indefinite imprisonment does not count as a punishment, any burden that falls short of that is a mere inconvenience that can easily be justified by “frightening and high” recidivism rates, even when those rates are pulled out of thin air.

Now New York City is considering a plastic straw ban.

On Wednesday, three Democrats on city council—Rafael Espinal of Brooklyn, Helen Rosenthal of Manhattan, and Barry Grodenchik of Queens—introduced a bill that would prohibit restaurants, bars, and other food service businesses from giving customers single-use plastic straws.

Businesses would be fined $100 for the first violation, $200 for second, and $400 for any violations thereafter. A medical exception would allow restaurateurs to hand out straws to anyone with a disability—including, oddly, people whose disabilities do not have any effect on how they drink their beverages. Everyone else would have to suck it up.

Espinal, along with John Calvelli of the Wildlife Conservation Society and Adrian Grenier of HBO’s Entourage, try to justify the proposal in a New York Daily News op-ed, arguing that plastic straws are both an environmental menace and easily replaceable.

“While plastic straws are among the most common litter found on beaches, they are also among the hardest plastic to recycle and the easiest to replace,” wrote the trio. “Alternatives to plastic straws made of paper, bamboo, metal or glass are readily available. Consumers can even skip the straw altogether.”

In my own Daily News op-ed, I push back against both arguments. Straws, I note, are hardly the biggest problem when it comes to beach litter:

Straws make up a pretty small portion of plastic waste overall. Results from California’s yearly coastal clean-up find that straws are about 4% of all beach debris collected. In Vancouver it’s 3%. In the UK, straws are just 2% of all beach refuge.

And while plastic getting into the oceans is a big problem, it’s not a particularly American problem:

The U.S. as it turns out does a pretty good job of disposing of the waste we produce, making us responsible for less than 1% of plastic going into the oceans. That’s compared to countries like China, which contributes almost 28% of yearly plastic marine debris, or Indonesia, responsible for another 10%.

As one chemical engineering professor put it to National Geographic, “Let’s say you recycle 100 percent in all of North America and Europe. You still would not make a dent on the plastics released into the oceans. If you want to do something about this, you have to go there, to these countries, and deal with the mismanaged waste.”

Straw bans in a couple coastal cities will be of even less help to the environment. But they would do a good job of inconveniencing customers and ruining businesses for whom plastic straws are a crucial component of the drinks they service. As I wrote in the Daily News:

There are those drinks that would be rendered hopelessly impractical in a straw-free world, from the standard milkshake to your favorite whipped-cream topped beverage from Starbucks. Bubble tea might disappear entirely without the straws needed to slurp up the tapioca balls at the bottom of the cup that give the beverage its name.

Indeed, bubble tea merchants were some of the strongest opponents of Vancouver’s straw ban, with one tea house manager telling the city council, “our industry depends on straws. This ban will be detrimental to many businesses in our city.

“Who’s going to pay more money for a metal straw?” one New York bubble tea shop manager tells Reason, adding: “It’s impossible to suck up a bubble through paper.”

Reusable straws really aren’t practical for drinks that more often than not are consumed on the go. But for straw opponents, these bans are starting to take on a self-justifying momentum. In the words of Espinal and co.: “California is also looking to implement a statewide ban. For the sake of our environment and ecological future, New York City must be among these progressive champions.” Gotta keep up with the progressives Joneses.

The fight over which public school restrooms transgender students can use is winding its way back through the legal system, and it may be heading back to the Supreme Court.

A federal judge in Virginia ruled Tuesday that a lawsuit by a transgender student who was barred from using the boys’ facilities can move forward. Or rather, it can move forward again. The plaintiff, Gavin Grimm, was a central figure of a lawsuit that made it to the Supreme Court but then was punted back down after the Department of Justice switched positions.

Grimm, now 19 years old, sued the Gloucester County school board in Virginia in 2015 after they implemented a policy requiring him to use either the women’s facilities or a single-stall unisex restroom. Grimm had begun the transition to living openly as a male and wanted to use the boys’ restroom. He argued that the school district’s policy violates Title IX of the Education Act of 1972, which forbids sex-based discrimination. But the law also permits schools to set up sex-segregated facilities to protect people’s privacy, so there’s been an ongoing conflict over which way to navigate the landscape is correct.

Under President Barack Obama, the departments of justice and education settled on an interpretation that favored Grimm, based on several federal court decisions—most notably Price Waterhouse v. Hopkins, a 1989 case where the Supreme Court ruled that discrimination on the basis of whether a person complies with gender stereotypes is a form of sex-based discrimination. That case involved a woman claiming she was denied promotions because she wasn’t feminine enough. The Obama administration advised school districts that discrimination against transgender people is also a form of discrimination based on gender stereotypes.

Some states resisted, and we ended up with a collection of differing federal court rulings. The Supreme Court agreed to hear Grimm’s case in 2016. But then when Jeff Sessions took over as attorney general, he rescinded the Obama administration’s guidance letters to schools and decided to leave matters to the states, saying it was the Justice Department’s position that “gender identity” is not a category protected from discrimination by federal law.

The Supreme Court then punted the case back down the legal ladder. This did not end the conflict in any way, and Grimm continues to fight through the courts.

This week’s ruling, from Judge Arenda Allen Wright of the United States District Court for the Eastern District of Virginia, will allow Garvin’s case to move forward again. The judge rejected a request from the school district to dismiss the case.

In the judge’s 31-page ruling (read it here), she notes that the school’s policy stemmed not from complaints by boys that Grimm was in their restrooms, but rather by adults in the community who found out the principal had quietly accepted Grimm’s transition and let him use the boys’ room. She further notes that since Grimm has filed his lawsuit, he has progressed along his transition, taking hormones, surgically altering his body, and getting his birth certificate and state identification legally altered to list his gender as male. The state itself is treating Grimm as a male, even if the school is not.

Note that while the ruling is favorable to Grimm, the judge isn’t actually determining in his favor (though she does seem to agree with his side’s arguments). Rather, the judge ruled that Grimm has enough of a Title IX complaint to continue and that there are enough precedents friendly to Grimm’s arguments to reject a call to dismiss the case.

And so the bathroom battles march on.

Secretary of State Mike Pompeo’s first major foreign policy speech was everything Iran hawks have dreamt about.

The address was filled with tough-sounding rhetoric about Iran’s behavior in the Middle East. Pompeo provided red meat to neoconservatives, unilateralists, and primacists alike, outlining an approach that relies on economic, military, and political pressure to bend Iran to Washington’s will.

What the Trump administration billed as a “plan B” in a post-Iranian-nuclear-deal world was in truth not a plan but a long list of grievances and a series of demands that Tehran will almost certainly reject. “Relief from sanctions will come only when we see tangible, demonstrated, and sustained shifts in Tehran’s policies,” Pompeo told his audience.

These may be popular words from the standpoint of domestic politics. But in terms of actual policy, the speech is substanceless, writes Daniel DePetris, a fellow at Defense Priorities.

View this article.

The U.S. fertility rate has fallen to a 40-year low of 1.76 children per 100 women, according to the Centers for Disease Control and Prevention (CDC). Is lead to blame?

A new study by three Carnegie Mellon University (CMU) economists says it is. Noting that “increased lead exposure lowers the general fertility rate for women of childbearing age,” the trio argues that “reductions in airborne lead between 1978 and 1988 increased fertility rates and that higher lead in topsoil decreased fertility rates in the 2000s.” The might right, but another explanation for the falling fertility rate is more convincing.

Between 1973 and 1996, the U.S. completed the process of totally eliminating lead as an additive in gasoline. As a result, lead concentrations in the atmosphere have dropped by 99 percent since 1980. In their study, the CMU economists look at fertility rate trends in that portion of the population (about 30 percent) where they have adequate data for atmospheric concentrations of lead in the 1980s. They similarly seek to correlate fertility rates in about 70 percent of the population with their exposure to lead in the topsoil after the year 2000.

After taking into account possible confounders—local climate, housing, socioeconomic status, education, nearness to highways, race, poverty, unemployment rates—they calculate that the decline in airborne lead meant 95,000 additional babies would be born annually. They also estimate that cleaning up areas with high concentrations of lead in the topsoil to the median level of contamination would induce an additional 166,000 births annually.

The researchers do find a correlation between seeking out infertility services and living in states with above-average airborne lead concentrations. But CDC data show that the infertility rate for married women fell from 11.2 percent in 1965 to 10.3 percent in 1976 and further to 8.4 percent in 1982, and the use of leaded gasoline was increasing for most of that period. The CDC reports that the infertility rate among married women continued to fall, reaching about 6 percent in 2010, despite the fact that the CMU researchers identify ongoing exposure to lead in topsoil as a contributing factor to lower fertility rates. (I cite infertility rates of married women because that’s the longest consistent dataset offered by the CDC.)

Interestingly, data from the 1950s report atmospheric lead concentrations in major cities that were similar to those during the 1980s. Yet post–World War II fertility rates soared, resulting in the baby boom. U.S. total fertility rates fell steeply from the baby boom years, reaching their nadir of 1.74 children per woman in 1976. Total fertility rose to 2.08 children in 1990 and then held more or less steady at around 2 children per woman, rising to a pre–Great Recession peak of 2.12 children in 2007.

The CDC has tracked contraception use among married women from 1965 onwards (adding unmarried later). In 1965, some 63 percent of married women were using some form of contraception, including oral contraceptives, IUDs, and condoms. That rose to nearly 68 percent in 1976, as oral and intrauterine contraceptives displaced condoms. In addition, sterilizations increased from 7.8 to 18.6 percent of women during that decade. In 2008, the CDC reports, 78.6 percent of married women practiced some form of contraception.

Another way to parse U.S. fertility data is to consider just how many children U.S. women on average intended to have versus the actual number that they give birth to. A 2005 study looking at intended and ideal family sizes between 1970 and 2002 finds that both remained stable at just over two children during that period. “Reported fertility intentions of American women approximate the country’s contemporary period levels of fertility,” notes the study. Adding that their findings show “in the aggregate, both stable intentions across time and an ability to realize those intentions.”

A 2010 study that looked at the childbearing intentions of a late baby boom cohort (born between 1957 and 1964) found that the women aimed to give birth to an average of 2.22 children. By 2006, they had given birth to 1.97 children on average. So why did a substantial proportion of Americans in that cohort end up having fewer children than they intended? The researchers highlight the role played by “life-course factors,” finding that “both women and men who postponed childbearing or marriage were much more likely to have fewer births than they intended.” The study points out that postponement implicates declining fecundity with age, competing nonfamilial activities, and failure to find a suitable marriage partner.

Exposure to lead is undeniably harmful to human health. And perhaps exposure to lead has contributed to lower U.S. fertility rates. But it seems more likely to me that U.S. fertility rates have fallen largely because Americans are choosing to have fewer children.

For further background, see also my analysis of the claims that exposure to leaded gasoline increased U.S. crime rates.

Few politicians have made more of an impact on their times than Arizona Sen. John McCain, who is battling brain cancer.

His new book, The Restless Wave: Good Times, Just Causes, Great Fights, and Other Appreciations, has just been published and is already making news. In it, the 81-year-old former prisoner of war and torture survivor talks frankly about Donald Trump, the mainstream media, and his congressional colleagues. Throughout his career, McCain positioned himself as a centrist and a “straight talker”; his pushes for campaign finance laws and military interventions put him at odds with libertarians even as he was friendly toward immigration and trade.

In the latest Reason Podcast, Nick Gillespie talks with Matt Welch about McCain’s life and legacy. In 2008, when the senator was the Republican nominee for president, Matt published McCain: The Myth of a Maverick, a tough-but-fair assessment that had its origins as a 2007 Reason cover story called “Be Afraid of President McCain: The frightening mind of an authoritarian maverick.” No one is more qualified to talk about John McCain’s life and legacy than his biographer, Matt Welch.

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The big furor last week concerned President Trump’s use of the word “animals” to refer to members of MS-13. Some news reports claimed he had used the term to describe all immigrants, which led to push-back from Trump supporters: There the media go again, lying about the president. This retort elicited a rebuttal in turn, to the effect that Trump’s precise wording (to the extent such a thing exists; “Trump’s precise wording” is almost an oxymoron) doesn’t matter because the president “systematically obliterates any distinctions between the overwhelming majority of immigrants who are law-abiding and the violent minority among the foreign-born.”

That’s certainly true, going back to the president’s statement that Mexican immigrants are “bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

A year or two ago remarks like that hit the air like a thunderclap out of a clear blue sky. Now they seem, if not tame (can one say “tame,” or is that too much like “animals”?), then more mainstream. But not in a good way. A. Barton Hinkle is confused why this is scapegoating continues even as the economy grows.

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