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Indianapolis Metropolitan Police Department Officer Robert Lawson has been charged with battery, obstruction of justice, perjury, false informing and official misconduct after striking a student at a local school. In a report, Lawson said he struck the boy with an open hand and other officers then handcuffed the student. But video shows Lawson punched the boy and struck him with a knee as the student was being handcuffed.
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Stan Veuger of the American Enterprise Institute recently complained on Twitter that those who cared about cronyism when Barack Obama was president are suddenly very quiet about President Donald Trump’s bailout of farmers. There is some truth to his complaint.
But first, it’s wrong to say that everyone has been silent. The National Taxpayers Union, the Cato Institute, and others have complained and written against the bailouts. It’s also wrong to assume that those, like me, who haven’t made the bailouts a central focus of their work in spite of their past opposition to cronyism are silent for political reasons. Many of us are simply overextended, fighting the multifront attacks against freedom launched by Trump, the Democratic House, the Republican Senate, and the Democratic presidential candidates.
Cronyism is the unhealthy marriage between corporations, or other special interests, and the government. And farmers have been willing participants in this relationship for decades, at the expense of taxpayers and good economic policy. They’ve received subsidies and other government-granted privileges despite being relatively well-off and part of an industry that’s not more subjected to adversity than many others. Conservative, free market, and even left-wing advocates have used buckets of ink complaining about the handouts.
On closer inspection, it’s obvious that these farm bailouts are the culmination of everything that is wrong with cronyism. They came about after the president imposed duties on steel and aluminum in order to protect those industries from competition, which is cronyism. Then China, the European Union, Canada, and Mexico retaliated by targeting U.S. agricultural exports. From soybean to corn farms, from steel nails to bicycles, this trade war is hurting many businesses, some of which are closing their doors.
But none of Trump’s trade war victims are as powerful and important a voting bloc as farmers, who secured two agriculture bailouts over the past two years, totaling $28 billion—so far. For perspective, Bloomberg reminds us that this “farm rescue is more than twice as expensive as the 2009 bailout of Detroit’s Big Three automakers, which cost taxpayers $12 billion.” Many Republicans at the time rightfully decried the auto bailout, yet most have nothing to say about the farm bailouts. Many have even joined in and demanded more for the farmers in their states.
Like regular farm subsidies, these bailouts are designed to shower largesse on the biggest farms. According to the Environmental Working Group, an outfit that has long opposed farm subsidies, one-tenth of the bailout recipients last year have received over half of the bailout payments, and 82 farmers have each received more than $500,000. Their report also notes that the top 1 percent of recipients of trade relief received $183,331 on average. The bottom 80 percent received less than $5,000 on average. It doesn’t sound right, because smaller farms must be hurting the most. But it’s naive to expect sensible policies from those who tried plugging a hole created by the trade war by paying out farmers rather than lifting the tariffs.
But that’s precisely what’s so disgusting about cronyism. It is, at its core, an exchange of government favors for loyalty in the voting booth. Nowhere is that more obvious than here. In fact, Trump almost seems proud of it, as he demonstrated during a recent call with farmers when he reminded them of the bailouts, saying, “I hope you like me even better than you did in ’16.” It’s likely no coincidence that Midwestern states such as Indiana and Iowa, which backed Trump in 2016, will receive large payments just before the midterm elections. It could also explain why fruit growers in California or lobster farmers in Maine, both victims of the trade war but in Democratic territories, are receiving little to no bailout.
To recap: Trump started a trade war to protect his friends in the steel industry. That triggered severe retaliatory tariffs from our trade partners. Then the president, rather than lift all the tariffs, decided to extend two bailouts to farmers and farmers alone in order to ease their pain in time for the next election. And most Republicans now appear to be OK with—or silent about—this crony solution to protectionism. Paired with the fact that some of us haven’t given the issue the attention it deserves, I can see why others, like Veuger, would think that conservatives are acting hypocritically. So much for principles.
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On Wednesday, the U.S. House of Representatives voted in favor of letting state-legal marijuana businesses have access to banks and other financial institutions.
It was a historic bipartisan moment, and an important one—though one that skirts the larger and more important matter of changing how the federal government treats marijuana.
The bill was the first stand-alone marijuana legalization bill to pass either chamber of Congress. The SAFE Banking Act—the acronym stands for “Secure and Fair Enforcement”—would shield banks, credit unions, and other financial institutions from being held liable for doing business with marijuana growers and pot shops in states where the drug has been legalized. Under current law, any financial institution that so much as allows a marijuana business to open a business checking account could potentially violate a host of federal banking and drug laws.
“People in states and localities across the country are voting to approve some level of marijuana use, and we need these marijuana businesses and employees to have access to checking accounts, lines of credit, payroll accounts, and more,” said Rep. Ed Perlmutter (D–Colo.) during debate on the bill. “Most importantly, this will also reduce the risk of violent crime in our communities. These businesses and their employees become targets for murder, robbery, assault and more by dealing in all cash.”
The bill also protects third-party vendors—like plumbers or electricians—that might have to do business with state-legal pot shops.
Rep. Patrick McHenry (R–N.C.) called the bill “one of the biggest changes to U.S. drug policy in my lifetime.”
But McHenry voted against it, saying that he worries the bill could give drug cartels access to U.S. financial institutions. The SAFE Banking Act, he added, is a “half answer to a much larger question,” specifically whether marijuana should remain on Schedule I of the Controlled Substances Act. That’s a category that’s supposed to only include drugs with “no currently accepted medical use” and “a lack of accepted safety for use”—terms that obviously do not accurately describe marijuana.
It’s certainly true that Congress should have a larger debate over the federal status of marijuana, but it’s also easy to see why the SAFE Banking Act is the first bill to break the seal and earn a full vote. During debate on the floor, for example, Rep. Steve Stivers (R–Ohio) voiced support for the bill while noting that he would vote against any effort to legalize marijuana nationally.
The SAFE Banking Act passed by a final vote of 321–103 (with 10 members abstaining), enough to clear the two-thirds majority required for the bill’s passage under the suspension of rules that allowed it to be brought to the floor without any amendments being offered.
With the bill’s passage, it moves to the Senate, where a companion bill introduced by Sen. Jeff Merkley (D–Ore.), has 33 cosponsors. That total includes only four Republicans, making passage through the upper chamber more of an open question.
Sen. Mike Crapo (R–Idaho), chairman of the Senate Banking Committee, told Politico earlier this month that he would like to hold a committee vote on the bill before the end of the year, despite the fact that he has not signed onto Merkley’s bill.
But neither the larger questions surrounding Congress’ slow-walking of the end of the federal war on marijuana nor the fate of the SAFE Banking Act in the Senate should take away from the significance of Wednesday’s vote, which gave members of Congress their first chance to affirmatively vote for legalization and regulation of marijuana businesses over the decadeslong failed efforts of prohibition.
“For the first time ever, a supermajority of the House voted affirmatively to recognize that the legalization and regulation of marijuana is a superior public policy to prohibition and criminalization,” said Justin Strekal, political director for NORML, a national marijuana legalization advocacy organization, in a statement. The group is “cautiously optimistic” about the bill’s future in the Senate, he said.
“American voters have spoken and continue to speak,” said Perlmutter just before the vote. “Prohibition is over.”
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The oceans are warming, becoming more acidic, and rising faster as a result of man-made climate change, according to a new special report, The Ocean and Cryosphere in a Changing Climate (SROCC). The report is a compilation of the latest research by climate scientists assembled under the auspices of the Intergovernmental Panel on Climate Change (IPCC). Its authors write that the extent of Arctic sea ice is steadily declining, mountain glaciers are melting, the area of snow cover on land is decreasing, and permafrost is warming.
As these trends advance, low-lying coastal areas will experience increased flooding, marine life will shift further polewards, coral bleaching events will become more common, weather patterns may shift in response to more open warmer water in the Arctic Ocean, and melting permafrost may exacerbate warming by gushing trapped carbon into the atmosphere.
Some of the topline findings in the SROCC are that “it is virtually certain that the global ocean has warmed unabated since 1970 and has taken up more than 90% of the excess heat in the climate system.” In addition, it is likely that the rate of ocean warming has more than doubled since 1993. Researchers have very high confidence that marine heatwaves—defined as when the daily sea surface temperature exceeds the local 99th percentile over the period 1982 to 2016—have very likely doubled in frequency since 1982 and are increasing in intensity. It is virtually certain that by absorbing more carbon dioxide, the ocean has undergone increasing surface acidification.
Total global mean sea level rose by about 0.16 meters between 1902 and 2015 (a little over 6 inches). The rate of average sea level rise between 2006 and 2015 was about 3.6 millimeters per year, which is about 2.5 times the 1901–1990 rate of 1.4 millimeters per year. The rise in sea level is accelerating as water from melting ice sheets and mountain glaciers run into the oceans, and thermal expansion, as the oceans warm up.
In trying to see into the future, the SROCC chiefly focuses on two scenarios: one in which efforts to cut greenhouse gas emissions keep future global average warming to around 1.6 degrees Celsius by 2100, and another scenario in which no efforts to limit emissions results in an increase of 4.3 degrees Celsius by that same year.
Global mean sea level rise in the lower temperature 2100 scenario is projected to be about 0.43 meter (17 inches), with respect to 1986–2005. For the higher temperature scenario, the corresponding sea level rise is projected to be around 0.84 meter (33 inches) in 2100.
The rate of global mean sea level rise is projected to reach 15 millimeters per year by 2100 in the high temperature scenario, and to exceed several centimeters per year in the 22nd century. In the low temperature scenario, the rate is projected to reach 4 millimeters per year in 2100. While the researchers express low confidence in computer model projections for 2300, they note that sea level rise in the high temperature scenario could be as much as 2.3–5.4 meters (7 to 17 feet) and 0.6–1.07 meters (2 to 3.5 feet) in the low temperature scenario.
Interestingly, during the last interglacial period between 127,000 to 106,000 years ago, temperatures were between 1 and 2 degrees Celsius warmer than now and sea level was 4 to 6 meters (13 to 20 feet) higher. Researchers believe that the higher sea level of that time period occurred as a result of ice sheet melting in Greenland and Antarctica.
These trends certainly pose challenges to humanity. But there is good evidence that ingenuity and increasing wealth from economic growth can meet these challenges. Let’s take sea level rise. As I noted in an earlier article:
Using a worst-case climate scenario in which no efforts were made to reduce future warming, a 2018 study in Earth’s Future projected that sea level would rise by 2 and half feet by 2100. The researchers estimated that that increase would globally expand the area of land located in the 1-in-100 year coastal flood plain from its current area of about 210,000 square miles, to 290,000 square miles in 2100. The percent of the global population threatened by coastal flooding would rise (in the worst case scenario) from 3.6 percent now to about 5.4 percent by 2100.
A 2018 study in Global Environmental Change, this one also evaluating the economic effects of projected sea level increases ranging from 1 to 6 feet by 2100, concluded that it would be cost effective to invest in the protection of just 13 percent of the global coastline, thus safeguarding 90 percent the population and 96 percent of assets located in the global coastal floodplain. If these projections are approximately correct, addressing sea level rise will be costly, but it does not portend near-term societal collapse.
Setting aside big unexpected surprises, human ingenuity and increased wealth created by economic growth will similarly be able to adapt to the coming changes in the oceans and the cryosphere stemming from future climate change.
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Over at the Niskanen Center, I have a long post on the question of whether Senate Majority Leader Mitch McConnell could simply refuse to hold a trial if the House of Representatives does manage to adopt articles of impeachment against President Donald Trump. Ultimately, this strikes me as question of constitutional norms, and it would be inappropriate in most circumstances for the Senate to refuse to hold an impeachment trial and just ignore the actions of the House.
Here’s a taste:
Should a constitutionally conscientious senator ever agree to table or significantly delay an impeachment trial? The text of the Constitution does create some space for that kind of hardball. The Constitution says that the Senate “shall have the sole Power to try all Impeachments,” and provides some directions on what should happen when the Senate is “sitting for that Purpose,” but the Senate is empowered to have a trial, not mandated to have a trial. If the Senate wants to take action against an officer, it would need to go through the constitutionally specified process of holding a trial, but if the Senate is content to allow an officer to remain in place it is not clear that the Senate needs to follow any particular procedure. Moreover, the fact that the Senate has the “sole Power” to try impeachments emphasizes that the impeachment process is a cooperative one. There is no way to end-run a Senate that does not want to remove an individual from office.
Read the whole thing here. Also on this topic is Bob Bauer at Lawfare.
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It’s hard to think of a time when political and cultural discourse has been more polarized. These days, it seems as if even casual conversation has become tougher to navigate than a World War II minefield. Everyone from prospective Saturday Night Live cast members to college professors teaching books on racism to social media folk heroes have been canceled for saying the wrong thing at the wrong time and holiday dinners occasion endless columns about surviving political discussions. In today’s world, “Can we all just get along?“—the phrase famously attributed to Rodney King after he was almost beaten to death by members of the Los Angeles Police Department in 1991—seems like it’s from a totally different universe.
Today’s guest, Peter Boghossian, hopes to remedy at least some of today’s toxic atmosphere. He’s an assistant professor of philosophy at Portland State University and the co-author, with James Lindsay, of the new book How To Have Impossible Conversations: A Very Practical Guide. Their aim is to give us all advice on how to have “effective, civil discussions about today’s most divisive issues.”
Boghossian talks with Nick Gillespie about strategies to bring people who disagree into useful, productive engagement with one another. They also discuss how Boghossian, Lindsay, and a third scholar, Helen Pluckrose, pulled off the “grievance studies” hoax, one of the biggest and most controversial academic controversies in recent memory. The trio authored 20 fake articles that they say exemplify how political correctness has trumped serious intellectual inquiry in many academic disciplines. These were not subtle satires: One talked about canine “rape culture” at dog parks and another appropriated aspects of Hitler’s Mein Kampf in the service of a feminist critique of patriarchy. They submitted the papers to academic journals, with seven being accepted for publication and four actually coming out when they were exposed by The Wall Street Journal.
Is there a contradiction between pulling off the hoax and writing a book about bringing ideological opponents together? And what punishment at Portland State does Boghossian still face as a result of his role in the hoax? Those are some of the questions raised in this wide-ranging conversation about politics, polarization, and intellectual inquiry.
Audio production by Ian Keyser.
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Yesterday, Massachusetts Gov. Charlie Baker (R) announced an “emergency” ban on the sale of all vaping products, including devices used to consume cannabis extracts, nicotine, or solutions with no psychoactive ingredients. Unlike the bans on flavored e-cigarettes in Michigan and New York or the similar ban planned by the Food and Drug Administration (FDA), which were presented as responses to underage consumption, the Massachusetts edict is based mainly on concerns about recent reports of severe respiratory illnesses associated with vaping. But the governor’s explanation is highly misleading in light of what we know about the causes of those illnesses, and his sweeping ban is apt to undermine public health instead of protecting it.
“The Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) are currently investigating a multi-state outbreak of lung disease that has been associated with the use of e-cigarettes or vaping products (devices, liquids, refill pods, and/or cartridges),” Baker’s press release says. “To date, the CDC has confirmed 530 cases of lung injury across 38 states. While many of the patients reported recent use of Tetrahydrocannabinol (THC)-containing products, some reported using both THC and nicotine products. No single product has been linked to all cases of lung disease.”
Baker is echoing the CDC’s framing, which obscures the fact that the overwhelming majority of lung disease cases (not just “many”) are associated with cannabis products, which remain illegal in most of the country (although not in Massachusetts, until now). In states where the products used have been reported, the share of patients who admitted vaping THC ranges from 83 percent to 100 percent. The actual rates in some of those states may be even higher, since patients might be reluctant to admit illegal drug use.
The most plausible explanation for the lung diseases is that vaping oil-based THC solutions is leading to lipoid pneumonia, a rare condition caused by fat particles in the lungs. A leading suspect is vitamin E acetate, which was detected in most of the THC fluids tested by the FDA and New York’s state lab. Legal nicotine e-cigarettes, by contrast, typically vaporize e-liquids containing propylene glycol and vegetable glycerin. Furthermore, such e-cigarettes have been in wide use for years in this country, while the respiratory illnesses have been reported only in the last few months, which suggests that relatively new additives or contaminants are to blame.
“These excipients [propylene glycol and vegetable glycerin] have been used in e-liquids for the past 12 years without a problem,” notes Boston University public health professor Michael Siegel, a physician and epidemiologist who supports e-cigarettes as a harm-reducing alternative to the conventional, combustible kind. “If PG/VG were the problem, then there would be a huge number of cases occurring among adults, much less of a differential by gender, and much less of an age gradient in the reported cases.”
Siegel faults the CDC for its muddled message about vaping-related lung disease. “Given the fact that close to 90% of cases and 100% of the deaths for which products have been reported are associated with marijuana vaping, it is inexcusable that the CDC fails to distinguish between the products being vaped,” he writes. “It is also inexcusable that CDC has failed to distinguish between the vaping of oil-based e-liquids (which are typically used in [THC cartridges]) and water/alcohol-based e-liquids (as are used in virtually all e-cigarettes).”
In this context, Baker’s comprehensive ban on all vaping products makes little sense. He is relying on his authority to declare an emergency “which is detrimental to the public health.” Based on Baker’s declaration, the commissioner of the Massachusetts Department of Health, with the approval of the state Public Health Council, has imposed a four-month ban covering a wide range of products that, so far as we know, have not been implicated in respiratory illnesses.
Implicitly conceding the inadequacy of his main justification, Baker also cites recent increases in e-cigarette use by minors as a rationale for the ban. “Vaping products are marketed and sold in nearly 8,000 flavors that make them easier to use and more appealing to youth,” says Lt. Gov. Karyn Polito. “Today’s actions include a ban on flavored products, inclusive of mint and menthol, which we know are widely used by young people.”
Baker’s action highlights the alarmingly broad authority that some governors are claiming to ban products they don’t like in the name of “public health.” Since the statutes on which they are relying do not define “public health,” they seemingly allow governors to declare any situation an “emergency” and impose bans without new legislation. Gregory Conley, president of the American Vaping Association, which seeks to preserve e-cigarettes as an option for smokers who want to quit, asks, “If a governor is permitted to just ban e-cigarettes for four months, what else could they ban?” That seems to be an open question, although litigation by vaping businesses may clarify the answer.
Baker’s defense of his ban lumps together several distinct issues: the outbreak of respiratory illnesses related to THC vaping, the surge in underage e-cigarette use, and the relative hazards of vaping and smoking. His take on that last issue is decidedly unscientific. “To further inform the public about the dangers of vaping and e-cigarette use,” his press release says, the Department of Public Health “is relaunching two public awareness campaigns aimed at educating parents and middle and high school-aged youth. ‘Different Products, Same Danger,’ originally launched in April 2019, links the dangers of vaping to cigarette smoking.”
Legal e-cigarettes, which deliver nicotine without tobacco or combustion, emphatically do not pose the “same danger” as conventional cigarettes. As David Abrams, a professor of social and behavioral sciences at NYU, explained in a recent interview with CBS News, studies of biomarkers in smokers who have switched to vaping find that they are exposed to far fewer hazardous substances, at far lower levels, than people who continue to smoke. “E-cigarettes are way less harmful than cigarettes,” he said, “and they can and do help smokers switch if they can’t quit.”
If every smoker in the United States switched to e-cigarettes, Abrams estimates, it would prevent as many as 7 million smoking-related deaths. Vaping “delivers nicotine in a very satisfying way without the major harms of burning tobacco,” he said. “If we lose this opportunity, I think we will have blown the single biggest public health opportunity we’ve ever had in 120 years to get rid of cigarettes and replace them with a much safer form of nicotine.”
The harm-reducing potential of e-cigarettes has been recognized by a wide range of public health agencies and organizations, including the FDA, the Royal College of Physicians, Public Health England, the American Cancer Society, and the National Academies of Sciences, Engineering, and Medicine. In 2015, Public Health England said “best estimates show e-cigarettes are 95% less harmful to your health than normal cigarettes.” Yet the Massachusetts Department of Public Health is telling people that e-cigarettes pose the “same danger” as combustible cigarettes, a false premise that seems to be part of the logic underlying its ban.
If you ignore the enormous difference between the health risks posed by smoking and the health risks posed by vaping, it is easier to rationalize a policy that will deprive current and former smokers of an alternative that could save their lives. Massachusetts Health and Human Services Secretary Marylou Sudders implicitly acknowledges the impact the vaping ban will have on smokers who have switched to e-cigarettes or might be interested in doing so. “As a result of the public health emergency,” she says, “the Commonwealth is implementing a statewide standing order for nicotine replacement products, like gum and patches, which will allow people to access these products as a covered benefit through their insurance without requiring an individual prescription.”
As David Abrams noted in his CBS News interview, research indicates that e-cigarettes are nearly twice as effective in smoking cessation as those “nicotine replacement products.” Many smokers who did not manage to quit with “gum and patches” were able to do so with e-cigarettes. By ignoring that reality, Massachusetts pretends that its vaping ban will improve public health when in fact it is apt to result in more smoking-related diseases and deaths as former smokers return to a much more hazardous habit and current smokers are deterred from quitting.
“Massachusetts has made significant progress over the past two decades in curbing youth and adult tobacco use,” the governor’s press release notes. “In 1996, the youth smoking rate was 36.7%. Today, the youth smoking rate is 6.4%. The adult smoking rate is also low, with just under 14% of adults using combustible tobacco products.” These downward trends not only continued as vaping became more common; they accelerated, suggesting that e-cigarettes are replacing a far more dangerous source of nicotine. But that consideration does not seem to have figured at all in Baker’s decision.
It should go without saying that the Massachusetts ban will not curtail vaping of mystery cartridges and e-liquids available on the black market, which pose the greatest risks. To the contrary, the ban will drive vapers toward those products. “Legal vapes while not safe are subject to regulation on manufacturing, sales, marketing, ingredients, warnings,” former FDA chief Scott Gottlieb noted last month. “If we outlaw all vapes, and pull legal products off the market, problems with illegal and counterfeit products will get worse.” Yet that’s exactly what Massachusetts is doing.
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Cancel culture may have finally jumped the shark after an Iowa newspaper decided to include in a profile of a local man raising money for charity two racist tweets he published at age 16.
On Tuesday, the Des Moines Register published a profile of Carson King, a 24-year-old security guard who achieved viral fame after he was spotted on ESPN’s College Gameday waving a sign that asked people to use the mobile payment app Venmo to send him beer money.
The TV coverage brought in $11,000, which King then announced he was donating to the University of Iowa Stead Family Children’s Hospital. That declaration led to more donations, which prompted Beer company Anheuser-Busch and Venmo both to announce that they would match Carson’s donations to the hospital. Anheuser-Busch even said they’d gift King a year’s supply of beer, making him an Iowa legend. As of Tuesday evening, King reports raising over $1 million.
All in all, it’s a nice feel-good story of a person using his surprise viral fame to help others.
In writing up this feel-good story, however, the Register decided to do some digging on King, eventually finding two, now-deleted, tweets from 2011—when King was 16 years old—that made racist jokes, one reportedly comparing black women to monkeys, another making a joke about black victims of the holocaust.
When asked about the tweets by the Register, King apologized profusely for them, saying they made him “sick” and “that’s not something that I’m proud of at all.”
Prior to the publication of the Register story, King issued a statement to local media expressing further regret.
“I am embarrassed and stunned to reflect on what I thought was funny when I was 16 years old. I want to sincerely apologize,” said King. Social media, he said, had the power to bring people together and to make one’s life very public.
The Register‘s description of King’s teenage tweets was enough to get Anheuser-Busch to disassociate themselves with King, although the company says that it will still donate $350,000 to the hospital.
The paper’s decision to publish the tweets also attracted heaps of scorn online, with many arguing that it’s wrong to dig up someone’s offensive tweets from high school, particularly given the remorse King already expressed, the sudden nature of his fame, and the legitimately decent charity work he was doing with that fame.
In response to these criticisms, the Des Moines Register Executive Editor Carol Hunter published an absolutely infuriating statement in which she described editors wrestling with whether to ignore the tweets, given King’s age at the time and apparent remorse, or go ahead and risk ruining his life by publishing descriptions of them. They went with the latter option. Hunter’s statement makes clear that this decision to publish the tweets was made prior to King releasing his own statement to the media.
Hunter’s statement did little to quell anger at the paper. Critics on Twitter quickly found offensive tweets from Aaron Calvin, the reporter who wrote the profile of King. Calvin has since apologized and deleted those tweets. He is now being investigated by his employer.
The story is reminiscent of Ken Bone, who went viral after asking a question during a 2016 presidential debate only to have sexually explicit remarks he made on Reddit dug up by the media. It’s also similar to Kyler Murray, the University of Oklahoma quarterback who’s winning of the Heisman trophy was marred by USA Today deciding to publish an article on homophobic tweets he made when he was 15.
The fact that both King and the reporter writing about him had offensive tweets in their past should hopefully serve as a lesson: Everyone who’s grown up with social media has posted content they regret and that doesn’t necessarily reflect on their present-day values or beliefs. Even progressive New York Times staffers have managed to slip up.
Treating a person’s most intemperate tweets as worthy of public shame is an exercise in hypocrisy. What’s worse is that we have graduated from using social media history as a way of divining a person’s true nature to deploying that history cynically and maliciously, and in this case, to simply including a person’s dumbest posts as a matter of routine: “Age, name, dumbest thing they’ve said online that we can find.” Journalists can and should do better.
King’s treatment by the Des Moines Register and the subsequent backlash suggest that the world would be a lot better place if we could ignore people’s worst online moments, especially if they appear to be artifacts of their immaturity. As the great @alexander_pope might say were he alive today, “2 err is human, 2 forgive divine.”
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So the Michigan Court of Appeals held yesterday, in In re. J.P. (written by Judge Elizabeth L. Gleicher, joined in full by Judge Brock A. Swartzle, who also wrote a brief concurrence, and concurred with by Judge Michael J. Kelly as to everything except the first two paragraphs):
Young teenagers sometimes make poor judgments born of impetuosity, immaturity, and an inability to foresee the painful consequences of their actions. Here, four teenaged girls decided they did not like a 13-year-old boy, and fantasized via group text messages about killing him, his dog, and even his goldfish. The texts are not pretty or clever. They also were not sent to the boy. He learned the content of the hateful messages from his mother, and never actually read them.
The prosecutor charged one of the girls, respondent JP, with a violation of MCL 750.540e(1), which subjects those who send text messages intended to “terrorize, frighten, intimidate, threaten, harass, molest or annoy” another person to criminal punishment. Despite that no evidence supported that respondent intended that the boy would ever see the text messages, a jury adjudicated her as responsible for the violation and the trial court entered a dispositional order. Because no evidence or reasonable inference suggests that the teenagers intended to terrorize, frighten, intimidate, threaten, harass, molest or annoy the teenaged boy discussed in their texts, we vacate the orders of adjudication and disposition….
No evidence supports that respondent intended to harass, terrorize, annoy, or otherwise interfere with S’s peace and quiet. Rather, the great weight of the evidence demonstrates precisely the opposite: none of the Snapchat participants intended that S would ever read or see the texts, or would ever feel threatened by their existence…. [E]ven if a recipient does receive a … communication, the “listener’s subjective perceptions, without the necessary intent on the part of the caller” do not make out the crime. The focus remains on the intent of the sender.
The prosecution asserts that respondent’s “[m]alice is apparent from the graphic nature of the threats and the attempt to build consensus on hating [S] with whoever else was in the group chat.” This argument disregards the language of the statute, which requires that the maker of a threat intend that the threat disturb or otherwise negatively affect “another person.” The nature of the language, standing alone, does not make out the crime, nor does the fact that violence was discussed…. MCL 750.540e survives constitutional scrutiny precisely because it pairs speech with a speaker’s malicious intent that the content of the speech be communicated to a listener, and some form of follow-through on that intent.
For a similar federal case involving adults, see U.S. v. Alkhabaz (6th Cir. 1997). Thanks to Michael Smith for the pointer.
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