Category: reason

A bizarre and disconcerting bit of politically motivated violence, which happened on November 5 pre-election but just came to my attention today: Jarrod Ean-Dixon, a participant in supporter of** New Hampshire’s Free State Project (FSP), was shot multiple times during a conflict that began over a group of people including Michael Sirois, who allegedly shot Ean-Dixon, objecting to the Project’s Porcupine flag (pictured below).

Ean-Dixon’s family, in a web site dedicated to the incident, says that the 36-year-old father of three is “healing well considering his grave injuries.” (One of his sons witnessed the shooting.)

The FSP is an effort to get the libertarian-minded to move en masse to New Hampshire to influence its politics and culture in a libertarian direction in a more concentrated and hopefully effective manner than they could achieve nationally. I profiled FSP for Reason at its beginnings in 2004, and Garrett Quinn checked in on their progress for us in 2013.

Their symbol is the porcupine, an animal allegedly peaceful when left alone but potentially dangerous when harassed.

The New Hampshire Union Leader reports on Ean-Dixon’s long involvement with the FSP, including quotes from past FSP leaders on his involvement with the cause, and states:

Police have said the dispute was over the use of a porcupine on a yellow “Don’t Tread on Me” flag, rather than the traditional curled snake. Police have said Sirois believed the porcupine was a desecration of the flag.

A woman, Kasondra Williams, who fled with the accused shooter and his other violent friend, Jason Gerry, who had allegedly punched Ean-Dixon, was also shot in the incident, apparently accidentally.

Other local media reports on the shooting from WMUR-9 and Boston.com.

The police report on the incident and arrest.

**Correction: The Free State Project does not have “members” despite what the earlier headline read, just “supporters” or “participants.” Since Ean-Dixon lived in New Hampshire prior to FSP’s existence, he is properly just a “supporter.”

It looked like the courts would once again save us from prosecutorial overreach aimed at web classified-ad site Backpage—and in so doing, reaffirm the protection under federal law and the First Amendment that’s afforded third-party publishers of online content. On Wednesday morning, Sacramento County Superior Court Judge Michael Bowman indicated that he would reject California’s case against Backpage CEO Carl Ferrer and two former site owners on charges of pimping, pimping a minor, and conspiracy.

In a tentative ruling, Bowman agreed with the defense that the federal Communications Decency Act prohibits the charges aginst Ferrer and co-defendants Michael Lacey and James Larkin, who were all arrested in October. “Congress did not wish to hold liable online publishers for the action of publishing third party speech,” he wrote. “Congress has spoken on this matter and it is for Congress, not this court, to revisit.” The last sentence was bolded.

Although Bowman could not issue a final ruling until after oral arguments, which were scheduled for Wednesday afternoon, he said that the final ruling come as early as that evening. And it did: Bowman now wants more info. According to Cheryl Miller of California legal newspaper The Recorder, the judge has now said he won’t dismiss the pimping charges just yet and would like more briefings from both sides before deciding whether to make the tenative ruling final.

The case against Ferrer and company was instigated by the California Department of Justice and led by state Attorney General Kamala Harris, who called Backpage “the world’s top online brothel.” Harris, a Democrat, just won a seat in the U.S. Senate. In October, former Backpage owners Lacey and Larkin accused her of bringing the charges against them as a pre-election publicity stunt.

“Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested,” the men alleged in a statement. “She issued her sanctimonious public statement, controlled her media cycle and got her ‘perp walk’ on the evening news. … And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won’t pay. The taxpayers of California will.”

As I noted here then, Harris knew the charges she was bringing against Ferrer, Lacey, and Larkin were not permitted under federal law. In 2013, she petitioned Congress to change the law specifically so that she and other state attorneys general could prosecute Backpage owners. Which means her presence now in Congress doesn’t bode well for Section 230 of the Communication Decency Act (CDA), the part that protects web publishers and platforms from criminal liability for user-generated content.

For now, it looks uncertain whether Backpage—which has emerged victorious in several previous attempts by state prosecutors to go after it in unconstitutional ways—will be afforded the protections guaranteed under Section 230.

“The importance of the protection afforded by the First Amendment was the motivating factor behind the creation of CDA,” Bowman noted in his tentative ruling earlier today. While government has a legitimate interest in fighting sex trafficking, that interest “is not absolute,” wrote Bowman, “and must be constrained by the interests and protections of the First Amendment to the U.S. Constitution.”

Bowman also pointed out in the tentative ruling that California criminal code defines pimping as living or deriving financial support from the earnings or proceeds of a person’s prostitution, and “does not apply to an individual who provides a legitimate professional service to a prostitute even if paid with proceeds earned from prostitution.” In this case, Backpage earns money for services rendered to sex workers—providing a platform and tools to easily post advertisements—not by taking a cut of any sex-work proceeds that result.

“There is no dispute that Backpage charged money for the placement of advertisements,” Bowman wrote. “Does this qualify as services rendered for legal purposes? Given the services provided by the online publisher, the answer to that question is yes. Providing a forum for online publishing is a recognized legal purpose that is generally provided immunity under the CDA. This immunity has been extended by the courts to apply to functions traditionally associated with publishing decisions, such as accepting payment for services and editing.”

• President Obama arrived in Greece, while riot police there clashed with anti-Obama demonstrators.
• Donald Trump says a very organized process was taking place for his transition, and that only he knew who the finalists for appointments were. Supporters of Hillary Clinton are pushing a petition to have the Electoral College vote for her instead.
• A number of still outstanding 2016 elections include who won the governor’s race in North Carolina.
• Senate Democrats selected Chuck Schumer as the minority leader and named Bernie Sanders “chair of outreach,” one of three new Democrat positions.
• The officer who shot and killed Philando Castile was charged with manslaughter.
• Police in Nigeria have foiled an alleged plot to kidnap an oil magnate that involved at least one military official.
• Conor Macgregor says he wants $100 million to fight Floyd Mayweather under boxing rules.

Trump is setting the stage “for a full scale war on immigration [that will] reprise the war on drugs,” says Shikha Dalmia, a policy analyst at the Reason Foundation and a columnist at The Week. She fears that the federal government will start “giving incentives to catch illegals” just as it does in the drug war. The mayors of so-called sanctuary cities like New York and Chicago have vowed to protect illegal immigrant residents from Trump, but with the right incentives, Dalmia say, they may “come to heel after all.”

Nick Gillespie interviewed Dalmia in our latest podcast. Click below to listen to that conversation, or better yet subscribe to our podcast at iTunes.

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Marrakech – The standing room only crowd rose to its feet and burst into sustained applause when Secretary of State John Kerry walked into the Fes press conference tent at the Bab Ighli site of the COP22 U.N. climate change meeting. I thought that only U.N.-accredited media and members of the U.S. delegation were admitted to the venue. Odd. Kerry opened by acknowledging that at Marrakech he was “preaching to the choir” and that “all of us here are the proverbial choir.” The Secretary of State evidently knew his audience better than I did.

“No one should doubt the overwhelming majority of the citizens of the United States, who know climate change is happening and who are determined to keep our commitments that were made in Paris,” asserted Kerry near the beginning of his clearly heartfelt speech.

Just before Kerry spoke, the U.S. delegation submitted under the Paris Agreement on Climate Change a long-term climate strategy for deep decarbonization of the U.S. economy by 2050. The strategy “envisions economy-wide net GHG [greenhouse gas] emissions reductions of 80 percent or more below 2005 levels by 2050.” The Obama administration had earlier promised to reduce U.S. GHG emissions by 26 to 28 percent below their 2005 levels by 2025.

The Secretary of State noted since the Obama administration came into office in 2008 that electricity generated by wind power had tripled while solar power generation had grown 30-fold. For context, wind currently provides 4.7 percent and solar 0.6 percent of U.S. electricity. Kerry nevertheless believes that market forces are already driving the switch from fossil fuels to renewable power sources. “I can tell you with confidence that the United States is right now, today, on our way to meeting all of the international targets that we have set, and because of the market decisions that are being made, I do not believe that that can or will be reversed,” Kerry claimed. “Emissions are being driven down because market-based efforts are taking hold.”

“We are not on a pre-ordained path to disaster,” Kerry declared. “It is a test of willpower. It requires us to hold ourselves accountable to facts and to science.” Kerry noted that 2016 is likely to be the hottest year in recorded history, adding that 15 of the 16 hottest years in recorded history have occurred since the beginning of the 21^st century. The last decade was the hottest in recorded history; the decade before that was the second hottest, and the one before that was the third hottest. “For those in power in all parts of the world, including my own, who may be confronted with decisions about which road to take at this critical juncture, I ask you, on behalf of billions of people around the world: Don’t take my word for it,” he pleaded, “I ask you to see for yourselves.” Kerry further urged, “Above all consult with the scientists who have dedicated their lives to understanding this challenge.” He asserted, “At some point, even the strongest skeptic has to acknowledge that something disturbing is happening.”

Like other members of the U.S. delegation here at the climate change conference, Kerry did not offer any conjectures about what the Trump administration’s policy with regard to climate change might be. He did say, “While I can’t stand here and speculate about what policies our president-elect will pursue, I will tell you this: In the time that I have spent in public life, one of the things I’ve learned is that some issues look a little bit different when you’re actually in office compared to when you’re on the campaign trail.” Toward the end of his talk Kerry declared, “No one has the right to make decisions that affect billions of people based solely on ideology or without proper input.”

Kerry observed that he had been participating in the U.N. climate change negotiation process ever since the Earth Summit in Rio de Janeiro in 1992. (I was there as a reporter too.) He suggested that he would attend the next COP as plain old “Citizen Kerry.” Kerry received two minutes of sustained standing applause as he departed.

Conservative corners of social media have been having a chuckle at a story out of Portland, Oregon, about how some of the people arrested there for protesting the election of Donald Trump did not participate in the vote.

Here’s the original piece, from Portland TV station KGW, which has since gone viral and been picked up by outlets including The Daily Caller, The Washington Free Beacon, and New York Magazine, to name a few.

The original report explains how the station cross-checked a list of 112 arrested protesters against voter rolls and found that 35 of them did not cast a ballot on Election Day and 35 others were not registered to vote. As a matter of fact, that means the arrested protesters voted at almost the same rate as the general population—take out the 35 who weren’t registered and the remaining arrested protesters had a turn-out rate of 55 percent, compared to 58 percent for all registered voters nationally.

Within conservative media, though, this story has taken on a completely different slant.

“Portland Takes To The Streets To Protest, But Not To The Polls To Vote,” blares a headline on Red State, bylined by Susan Wright. “If you don’t vote, you shouldn’t complain when you don’t like the outcome,” she says.

The conservative social media reaction was captured by Twitchy, which declared the non-voting status of some protestors to be “comedy gold.“

This is the best thing I’ve seen all day https://t.co/1pOULzQKQC

— Bethany S. Mandel (@bethanyshondark) November 15, 2016

Good grief, guys — the polling booth is WHERE YOU’RE SUPPOSED TO MAKE YOUR VOICE HEARD. https://t.co/J0v9qB2ckz

— Brian (@btskinn) November 15, 2016

Let me be clear: in no way am I defending of the violent riots in Portland (or elsewhere) that have damaged property and hurt people. The rioters in Portland should be criticized (and have been, including by my colleagues) for their violent actions and also for their decision to protest the outcome of the election while remaining silent on other abuses of power.

That being said, an individual’s status as a voter or non-voter does not change their right to protest—peacefully—in the aftermath of an election or in response to any other action taken by the government. Constitutional rights do not apply only to those who vote. The 42 percent of registered voters who skipped the election still have the right to protest, as does any American who isn’t registered to vote.

The implied argument—one made quite explicit by Wright and others—seems to be that if these protesters don’t like the outcome of the election, they should have showed up to vote in an attempt to change it.

Except, no, because that’s not how presidential elections in this country work.

Oregon was won by Hillary Clinton (and it wasn’t particularly close). Those protesters could have voted until they were blue in the face and it wouldn’t have changed a thing. In fact, the only thing that would have changed is that Clinton would have ended up with a slightly larger victory in the popular vote.

There’s a second implication here, too, which is that voting is the only way to influence social change. “Don’t like things, vote for something else” is both an oversimplified understanding of how and why changes happen and also a historically inaccurate one. Protests and mass movements have done at least as much to change the course of government policy throughout American history as even the most significant elections (this year’s so-called “change election” saw 97 percent of incumbent congressmen returned to office, for example).

Again, none of this is meant to endorse the violent actions by some rioters in Portland and other cities around the country during the past week. I’m merely pushing back against those who chortle at protesters who didn’t vote as if that fact somehow delegitimizes their complaints.

It’s also worth noting that most of the protests against Trump’s victory have been peaceful and hopefully will continue to be that way.

Destroying property and hurting people is not the way to register a complaint or to effect change. Still, that doesn’t meant that voting is the exclusive way to do those things.

Sen. Jeff Sessions (R-Ala.) was an early and vocal supporter of Donald Trump’s presidential bid. Now that his man is headed for the White House, the 69-year-old senator seems likely to be rewarded with a plum cabinet position.

Sessions’ name has been floated for a number of cabinet positions, including Attorney General, Secretary of State, Secretary of Defense, and Secretary of Homeland Security.

Here are five reasons Sessions would be no friend to libertarians if he does indeed leave the Senate and join the Trump administration:

1. He was not only for “the Wall” before Trump thought it was cool, he’s against legal immigration, too.

More than a decade ago, Sessions was pushing for a fortified barrier on our Southern border, and has never let go of the dream. He has also opposed every congressional attempt at immigration reform since then, of which Reason‘s Shikha Dalmia wrote, “Sessions has done more than any human alive to torpedo every sensible immigration reform effort and makes no bones about his wish to basically stop all immigration. He moves the goalposts on reform constantly, recently even calling for the elimination of the H-1B visa program for foreign techies, which sent chills down the IT sector’s spine.”

It’s not just illegal immigration Sessions opposes, he’s also fond of spreading the canard that all immigrants are a drain on the economy and take the jobs which are the birthright of all native-born Americas, when in fact, the opposite is much closer to the truth.

As Nick Gillespie noted, Sessions’ hostility to the free movement of people also makes him no friend of free trade. On that topic, Daniel Griswold wrote at Cato at Liberty that “Sen. Sessions supports our freedom to trade only as long as it does not affect any noisy special interests in his own state.”

2. He thinks only bad people do drugs, m’kay.

After previously mischaracterizing certain countries’ efforts at drug decriminalization as “legalization” and incorrectly arguing that they have “failed,” Sessions lamented that Nancy Reagan’s Just Say No campaign against drugs has been relegated to history and replaced by a growing tolerance for the legalization of adult recreational use of marijuana.

At a hearing earlier this year, Sessions said:

I can’t tell you how concerning it is for me, emotionally and personally, to see the possibility that we will reverse the progress that we’ve made….

It was the prevention movement that really was so positive, and it led to this decline. The creating of knowledge that this drug is dangerous, it cannot be played with, it is not funny, it’s not something to laugh about, and trying to send that message with clarity, that good people don’t smoke marijuana.

Reason‘s Jacob Sullum wrote of Sessions’ comments:

This is not the first time that Sessions, who served as a U.S. attorney during the Reagan administration, has pined for the days of Just Say No. But crediting Nancy Reagan for a decline in drug use that began before she latched onto her pet cause is scientifically problematic, and so are the messages Sessions wants the youth of America to hear—especially the idea that “good people don’t smoke marijuana,” which condemns at least two-fifths of the population (and probably more like half, allowing for underreporting by survey respondents).

3. He’s willing to abandon his fiscal conservatism to appease Trump’s plans for a YUGE increase in defense spending.

Politico has described Sessions as “a budget hawk more than a defense hawk,” which would actually be in line with libertarian values of reining in the wastefulness that defines a great deal of defense spending.

But by boarding the Trump train, Sessions appears ready to abandon his fiscal conservatism and back the next president’s plan to add over 70,000 troops to various branches of the military, scores of ships to the Navy’s fleet, and any number of improvements to what is already the world’s most expensive military many times over by adding a minimum of $55 billion in spending.

4. He’s pretty hung up about “the gays.”

In an appearance on Morning Joe in 2009, Sessions sympathized with those who “might feel uneasy” about the prospect of a gay Supreme Court justice, which he described as “big concern.”

Unsurprisingly, he also called the Supreme Court’s 2015 ruling legalizing gay marriage across the country “unconstitutional” (he had previously voted in favor of a ban on gay marriage to be enshrined in the Constitution), and was one of 31 Senators on the losing side of the 2010 Senate vote to end the ban on gays in the military.

5. He has an aversion to civil rights, and has been accused of using racially insensitive language in the workplace.

Sessions had been nominated by President Ronald Reagan for a federal judgeship in 1986, but his nomination was torpedoed after multiple allegations that he used racially insensitive language to colleagues were leveled against him.

A former US Attorney (Thomas Figures) and another Justice Department employee (Gerald Hebert) both testified that Sessions had described the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) as “un-American” and “communist-inspired.” For his part, Sessions himself said during his confirmation hearings that these groups could rightfully be called “un-American” when they “they involve themselves in promoting un-American positions,” particularly when addressing foreign policy issues.

Hebert also testified that Sessions had claimed these groups “forced civil rights down the throats of people,” and Figures (who is black) claimed Sessions had called him “boy” and had said that he used to like the Ku Klux Klan until he found out some of its members smoke marijuana. Sessions claimed he was merely joking about the KKK.

Bonus fact: Sessions voted in favor of a ban on “flag desecration” to be added to the Constitution.

Read more Reason coverage of Jeff Sessions here.

Jeronimo Yanez, a police officer in St. Anthony, Minnesota, has been charged with second-degree manslaughter and two counts of unlawful discharge of a firearm in connection to his fatal shooting of Philando Castile in July.

Castile was a lawful gun owner who informed Yanez he was carrying a weapon in the car after being pulled over in a traffic spot. Based on transcripts released by the district attorney—who decided to file charges without consulting a grand jury—it appears that Yanez escalated the situation after Castile’s disclosure, ultimately shooting him seven times even though Castile appeared to never reach for or grab his gun. The aftermath of the shooting was streamed on Facebook by Castile’s girlfriend, who was in the car at the time and who also tried to calm the officer down before the shooting. Yanez’s partner never drew his own firearm during the entire encounter.

In announcing his decision that the shooting was unjustified and that Yanez should be charged, the district attorney ,John Choi, said it wasn’t enough for an officer “to express subjective fear of death or great bodily harm” in order to justify the decision to fire at someone.

Yanez, unsurprisingly, was initially defended by his department. He was placed on administrative leave briefly, then returned to active duty before being placed on leave again in August. Yanez remains employed the police department even as he faces criminal charges for actions taken while on duty.

The pervasive mindset in police culture around the country that officers should not be terminated from their positions before the resolution of criminal charges is deeply disturbing—police officers deserve due process as all people do, but due process is a concept applied to government attempts to deprive you of life and liberty, and not to government attempts to terminate their own employees. The application of such a high standard to mere employment has helped foster an environment in which police accountability and transparency are woefully adequate. Yanez is the first officer charged in the more than 150 police killings that occurred in Minnesota since 2000.

Related from Reason TV: Cops vs. Cameras: Will Live Video Give Citizens Even More Power?

Thanks to his predecessors, Donald Trump already has the tools to launch an amped-up immigration crackdown as soon as he takes office. That doesn’t mean he won’t ask for yet more powers, but a formidable police apparatus is already in place. So when it comes to immigration, the immediate political conflict to watch will the one that pits that apparatus and the president atop it against the people in a position to slow it down.

We got an early glimpse of that last week, when New York Mayor Bill de Blasio suggested that he might destroy a city database that contains information on undocumented New Yorkers (*) rather than allow the feds to get their hands on it. (If you’re in New York City illegally you can still apply for a city ID card, making it easier to report crimes, open bank accounts, and otherwise participate more smoothly in social life. Immigrants aren’t the only people who use the program, but the info would obviously be useful to the deportation squads.) Several other cities—including Los Angeles, San Francisco, and Washington—issue similar cards, setting up other potential federal/local conflicts.

New York is also a “sanctuary city,” which basically means that its local cops do not investigate people’s immigration status. More than 200 cities and counties have adopted such policies, in part because of human-rights concerns but mostly for practical reasons: If people are worried about being arrested for immigration violations, they’re much less likely to cooperate with police investigating other crimes. Trump has threatened to use the power of the purse to bring the sanctuary cities in line, declaring that he’ll cut off all their federal funding if they don’t yield. That in turn has inspired some defiant talk from urban officials: Besides de Blasio, the mayors of Chicago, Los Angeles, Minneapolis, Philadelphia, Providence, San Francisco, and Seattle have all said they’ll stand by their sanctuary status.

On the state level, New York Gov. Andrew Cuomo struck a similar note over the weekend: “If anyone feels that they are under attack, I want them to know that the state of New York—the state that has the Statue of Liberty in its harbor—is their refuge….We won’t allow a federal government that attacks immigrants to do so in our state.” It’s unclear what that might mean in policy terms, and it could just turn out to be posturing. But if the deportation drive sparks a serious civil disobedience movement—meaning not simply marches and the like, but active refusal to cooperate with the enforcers and organized attempts to shield immigrants from removal—then a sympathetic governor could make a genuine difference. If the movement can hold him to his words.

(* OK: They’re otherwise undocumented, as a stickler in the comments points out.)

Is allowing public dollars, in the form of grants and scholarships, to flow to faith-based organizations a violation of the Establishment Clause? Or does making religious groups ineligible for money that is available to secular groups an infringement on the former’s First Amendment rights?

Amid the excitement of the presidential election, this was the little-noticed conundrum facing voters in Oklahoma last week. That state, like some 37 others, has what’s known as a Blaine Amendment on the books forbidding public money from going to faith-based charities and schools. A proposal on the ballot would have repealed that provision, making the Sooner State the first to do away with a Blaine Amendment.

The measure, Ballot Question 790, ultimately failed. But is that a good thing or a bad thing?

Unlike the conflict between preventing private discrimination and protecting religious liberty, which I think ought to be easy to resolve (only the latter value is embedded in the Constitution, after all), this question is arguably tricky. Our founding documents make clear the government isn’t supposed to offer direct support to any one religion. But they’re also clear that the government is not permitted to punish institutions just for practicing certain beliefs.

One of the groups urging people to vote yes in Oklahoma was The Becket Fund for Religious Liberty, who pointed out that Blaine Amendments can hurt people on the ground since, in many cases, the best and most effective charitable organizations—from food pantries and soup kitchens to prisoner re-entry programs and drug rehab centers—are affiliated with churches, synagogues, and mosques. If these service providers are preventing from applying for grant money, the money will go to alternative providers that may not get as much bang out of each buck as their faith-affiliated counterparts, who have often been in the charitable business a lot longer.

Supporters of the ballot question also noted that the Blaine Amendment in Oklahoma has been used to push “a series of ugly lawsuits by secular groups against parents of disabled children.” In a nutshell, the lawsuits say families should not be allowed to use vouchers to send their special-needs children to sectarian schools that offer programs designed to serve kids with disabilities. That doesn’t seem to make a lot of sense.

On the other side of this issue, the American Civil Liberties Union described the ballot measure as a “dangerous and misguided attempt by politicians to strip away one of our most fundamental protections.” Faith-based institutions that do take public dollars—there is no federal Blaine Amendment—are required to segregate those funds and ensure they aren’t used for proselytization or worship. But supporters of the rule don’t think that’s enough, and perhaps they have a point: Money is fungible, is it not? When an evangelical Christian charity gets taxpayer dollars to provide a certain service, doesn’t that free the group up to take whatever funds would otherwise have been used for the charitable purpose and reallocate them to more explicitly religious pursuits?

As libertarians, we may be asking why public funding should be made available to any private groups, be they faith-based or secular. If we left it to individuals and organizations to decide where to donate their money, it would eliminate the need to decide whether or not religiously affiliated charities should be disqualified from seeking government support.

But of course, that isn’t a live proposal at the moment. Too few Americans support doing away with government financing of social services. Even if we can’t privatize the funding stream, though—and let’s be honest, when was the last time the government stopped paying for something?—maybe the next best option from a free market perspective is to get the provision out of the hands of bureaucrats and into the hands of people who really know the communities they’re serving.