Tag: hit&run

Last month, Washington State regulators announced they were banning the sale of foods containing CBD—short for cannabidiol—an active ingredient in cannabis.

“Recent federal and state legislative changes regarding hemp have generated many questions about cannabinoid extracts, like CBD, and whether or not they may be used as ingredients in food products,” the Washington State Dept. of Agriculture announced. “To be clear, CBD is not currently allowed as a food ingredient, under federal and state law.” 

Washington joins California and several other states in adopting such a ban. Why the fuss over CBD? After all, CBD is not THC. According to a World Health Organization fact sheet, CBD is “very unlikely” to make you any higher than, say, hemp waffles would.

Washington State’s ban also seems unlikely to reduce access to CBD products. For example, it doesn’t impact licensed cannabis retailers in the state, who can continue to sell CBD products alongside cannabis-derived products that are intended to get you high.

What’s more, it’s not clear even if the Washington State ban will impact retailers—such as grocers and convenience stores—that don’t have licenses to sell cannabis products. In part, that’s because state regulators say they’ll avoid a widespread crackdown on sales.

“As processors and distributors learn that this is not legal either federally or within the state, most of them will do the right thing and figure out a way to come into compliance around that,” Steve Fuller, an official with the Washington State Department of Agriculture, told cannabis website Leafly last week.

But it’s also a testament to just how widespread sales of CBD products are now, and how incredibly difficult it would be for the state to halt those sales. CBD products, unheard of even a couple of years ago, are now sold in grocery stores, pharmacies, convenience stores, and gas stations in Washington State and around the country.

“Other jurisdictions banning CBD ingredients have had negligible to little success in keeping consumers at bay,” reports Cannabis Radar, a cannabis news website. “And enforcement officials in Washington are signaling that the prohibition efforts will be implemented in a gentle, informative and educative manner rather than a hard crackdown on all products at once.”

Sure enough, I went to my local Seattle-area grocer this week and found a range of CBD food products remain on sale. (I saw similar products for sale at other grocers this week.) The community engagement staffer I spoke with at the grocer (which I’m choosing not to name so as to protect them from the glare of federal and state regulators), was completely unaware of the ban. The staffer even handed me a free sample of a “hemp flower CBD shot” while we talked.

It’s clear CBD regulations are a mess right now. They’re confusing, changing, and often seemingly at odds with each other and themselves. While Washington State, California, and other states deserve some of the blame for that, most of the fault lies with the Food and Drug Administration (FDA). 

As the Washington Post noted in June, the current regulatory confusion around CBD begins with the FDA, which ostensibly regulates most of the foods to which CBD is or could be added. The agency is pondering rules. And when I say pondering I mean pondering.

“Experts say drafting and implementing regulations could take years,” the Post reported.

The agency’s indecisiveness trickles down. States that have banned CBD products typically “cit[e] the FDA’s stance” as the basis for their actions.

Coincidence or not, Washington State’s move against CBD came just two days after former FDA Commissioner Scott Gottlieb penned an op-ed in the Washington Post that urged the agency he led until earlier this year to put a halt to CBD sales until, well, TBD.

“Under current law, CBD is permitted in food or dietary supplements only if the FDA issues a regulation allowing its use,” Gottlieb writes. “This is a multiyear process subject to notice and comment, requiring a substantial amount of scientific data that the FDA must evaluate.” More pondering.

As Gottlieb’s recommendation suggests, “FDA” may as well stand for “Foot-Dragging Agency.”

But that’s not all that’s wrong with Gottlieb’s stance (or that of the agency he led). Gottlieb also urges the FDA to act in order “to make sure commercial interests don’t strip away any legitimate value that the compound [CBD] might have.”

That’s an awful statement that’s worth parsing for at least three reasons. First, Gottlieb, now a consultant for pharmaceutical companies, finds something potentially nefarious with “commercial interests” who market CBD products. Second, Gottlieb positions the FDA as the bulwark against these disreputable commercial interests. (For many reasons, including this one, it’s not.) Third, Gottlieb’s reference to “any legitimate value [CBDs] might have” is a clear attempt to minimize the benefits CBD has already been shown, through research, to possess.

Where do we go from here? What’s a just outcome for CBD products and those who buy and sell them?

If the FDA wants to take years to study CBD or to crack down on fishy claims made by a few CBD sellers, then it can and should do so. In the meantime, though, the agency should let states allow any and all CBD sales those states wish to permit. States, meanwhile—particularly those that have already legalized recreational cannabis—should stop appeasing (and mimicking) the FDA’s outrageous stall tactics on CBD.

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“I don’t know what the answer is,” Kacey Musgraves shouted during her set at Lollapalooza on August 7, “but obviously something has to be fucking done.” The country music star then led her fans in a chant that perfectly encapsulates the future of American politics: “Somebody fucking do something!” she screamed. “Somebody fucking do something!” the crowd screamed back.

Musgraves was, understandably, upset about the horrific back-to-back mass murders that took place the first weekend of August in El Paso and Dayton. She did not offer a specific something to be done. This may have been an attempt to appear nonpartisan, it may have been honest uncertainty, or it may just have been a sensible intuition that the middle of a music festival was not the right place to workshop public policy.

But the something matters an awful lot. In this case—and in so many others—”do something” actually means “do something to other people.” It means “force other people to do something they don’t want to do, even if you’re not sure it will actually help.” The call to “do something” privileges action over analysis and mandatory one-size-fits-all solutions over incremental, local, and voluntary action.

The list of somethings to be done post-shooting is familiar enough: Stop the sale (or possibly possession) of certain firearms, make ever-larger lists of people who are not allowed to own firearms at all, and regulate speech—especially “hate speech,” especially online, and maybe video games while we’re at it. As Reason‘s Brian Doherty and Jacob Sullum have chronicled, there are good reasons to think these proposals will impose widespread harmful unintended consequences while being ineffective at reducing gun deaths. But in politics, that doesn’t seem to count for much. Especially not when a bunch of politicians are in way over their heads, grappling with a highly flammable mix of genuinely troubling problems involving violence, racial hatred, inadequate health care, and terror.

“If we truly care about this,” said President Barack Obama after a 2015 mass shooting in Colorado Springs, “if we’re going to offer up our thoughts and prayers again, for God knows how many times, with a truly clean conscience, then we have to do something.”

President Donald Trump has jumped onto the same bandwagon. Speaking to the press on the White House lawn before he departed to visit with victims of the August shootings, he too said he was prepared to “do something” about “any group of hate.”

Earlier in the week, Trump suggested he might accede to restrictions on gun ownership in exchange for immigration reforms from congressional Democrats. It will be the ultimate irony if the last several decades of political and cultural warfare over gun policy end with a GOP president signing the first truly sweeping gun control bill since the ’90s. (The relatively quick and electorally painless decision to implement a bump stock ban after the 2017 Las Vegas shooting suggests that Trump has the willingness and perhaps even the clout to get it done if he wishes to do so.)

If, after decades of speechmaking about hunting and tradition and rights, Republicans roll over because they happen to have someone in the White House who doesn’t actually care much about those things, it’ll be the most perfect encapsulation of the party’s ideological hollowness since George W. Bush pushed through a massive health care entitlement, Medicare Part D.

The notion that the correct response to comparatively rare mass shootings is to rescind the constitutional rights of tens of millions of people who have sought mental health treatment has a particularly strong allure for the bipartisan “do something” crowd, perhaps because it perfectly fits the “do something to someone else” mold.

The proposed restrictions on online speech are in many ways the most worrisome. The desire to hold big tech accountable for mass shootings is politically potent: Google, Amazon, Facebook, and Twitter have already made plenty of enemies, and doing this particular something would be a great way to satisfy quite a few constituencies that are baying for their blood. (For more on that, see page 20.)

The rise of the free internet has coincided with the greatest sustained arc of increasing peace and prosperity in human history. But the forces for doing something are strong, so in the days after the shootings, everyone from Fox’s Tucker Carlson to The New York Times called for restrictions on online speech and other regulations of the internet.

Guns aren’t the only place where the do something dynamic dominates. In each case, the problems are very real, but their roots or scale may have been misunderstood, and the proposed somethings are blunt and ill-considered.

The problem of man-made climate change is real, for instance, but the proposed policy solutions grow ever more dramatic and potentially destructive even as the calls for action grow louder and less specific.

Same with foreign interventionism. We look abroad, see atrocities, and think, “Surely we should do something.” In her memoirs, former Secretary of State Madeleine Albright remembered asking her colleague Colin Powell, “What’s the point of you saving this superb military for, Colin, if we can’t use it?” Many foreign policy decision makers share her attitude. Who are the good guys? Who are the bad guys? Who knows? Do something! Probably something involving words first, but all too often those words become counterproductive economic sanctions, and soon there are bombs falling from the skies.

Likewise with bailouts of big business and stimulus packages and a half-dozen other big-ticket outlays that have pushed us past the point of fiscal sanity.

When there’s no clear policy to push, there’s a fallback something that’s available to (almost) every citizen: When things are bad, we can at least repeatedly remind each other to vote, thereby electing different politicians who can’t quite figure out which things to do or how to do them.

And if our newly elected legislators finally do something, will it be the thing you thought you were electing them to do? Probably not. This is the dirty secret of do something campaigns: They are dangerously unstable. They rapidly decay, first into awareness-raising efforts and other largely symbolic acts and from there into nothing.

But the opposite of do something isn’t do nothing. It’s let people work things out among themselves.

Consider Mr. Rogers’ advice for tough times. “When I was a boy and I would see scary things in the news,” America’s favorite cardigan swapper would say, “my mother would say to me, ‘Look for the helpers. You will always find people who are helping.'” This was meant as advice for parents worried about managing the anxiety of young children who were powerless in the face of horror. But it’s also good advice for anxious adults, who are often similarly ill-equipped to select the right course of action and impose it on everyone via the political process.

Give people a chance to think and talk and work and innovate to solve problems rather than bludgeoning them with public policy. Even problems that are traditionally considered part of the realm of government can be ameliorated in non-political ways. A 2018 New York University study, for instance, found that in small cities, the creation of a new nonprofit community organization leads to a 1.2 percent drop in the homicide rate and a 1 percent reduction in the violent crime rate.

Don’t scream for unspecified action from politicians. Look for the helpers. Be a helper. Don’t just do something.

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Fox 13 Salt Lake City (Lauren Steinbrecher) reports that fans displaying the “Betsy Ross” flag (the American flag with 13 stars) were told they had to take it down or leave.

Team management apparently confirmed that this was team policy:

“At Real Salt Lake it is our mission to unify our community through soccer and we promote inclusion, diversity and acceptance. It is important that everyone in the community not only feel welcome at our stadiums, but appreciated, respected and valued. Rio Tinto Stadium is reflective of that on match day and we encourage a unifying and welcoming environment to all fans at all of our RSL and Utah Royals FC matches. To be permitted to bring a flag into any of our stadiums is a privilege. Recently, and very controversially as well as surprising to us, the Colonial flag has been adopted as a symbol for hate groups. Any controversial flags or other similar banners or signs with symbols of hatred, divisiveness and/or intolerance whether intentional or otherwise will not be permitted in our stadiums. Period.”

– Andy Carroll, Chief Business Officer, Real Salt Lake

Because nothing says “inclusion, diversity and acceptance” like telling people that symbols of their country—historical symbols that have long been used simply as representing the nation, and that only a small fraction of the population uses for their own more specific ideological messaging—are unwelcome. Makes me wish I liked going to soccer games, so I could honestly say I was boycotting that stadium ….

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California is on the verge of passing a bill that would reclassify all “gig economy” workers—those who drive for Uber or Lyft, for example—as employees rather than contractors. Ride-sharing companies have responded by offering to pay drivers a minimum hourly wage of $21, but labor activists say the hike isn’t enough.

The measure, known as AB 5, passed the California State Assembly in May and is expected to pass the state Senate next week. It will then head to Gov. Gavin Newsom, who has put his full support behind the bill.

Such a move would require gig economy companies to provide a minimum wage and benefits—including paid time off, worker’s compensation, and reimbursement for expenses—to every employee, upending the flexible business model where drivers can choose their own hours, answer to themselves, and work for competing companies simultaneously. This would fly in the face of national practice: The Department of Labor and the National Labor Relations Board have ruled separately that gig economy workers are indeed contractors.

Uber and Lyft countered that they would provide a $21 minimum wage, which would apply both when driving a passenger and when en route to pick up a new one. Labor rights activists, including the ones behind AB 5, demurred at the offer. “The voters of California won’t stand for billionaires allowing their workers less rights than Walmart employees,” Assemblywoman Lorena Gonzalez (D–San Diego), who authored the bill, said in a statement.

But under AB 5, many of those workers would have less work, not more rights. Approximately 6,461 Lyft drivers in the assemblywoman’s district alone would lose their jobs, according to an economic study by Beacon Economics LLC. As I wrote back in March:

Vulnerable populations stand to lose the most from reduced access to rideshare opportunities. In New York City, for instance, a staggering 90 percent of app-based drivers are first-generation immigrations who speak English as a second language. Uber’s current driver qualifications—they must be 21 years of age, have a valid driver’s license, and own a decent car—allow large swaths of people to get ahead on the ride-hailing app. But the barriers to entry would be much higher if the company were encumbered with such heavy costs per driver.

Consumers would pay a hefty price too—literally. Estimates currently indicate that the plan would raise prices by 20 to 30 percent, a big blow to the low-income Californians who have benefited from Uber and Lyft’s accessible pricing. And fares aside, those in poorer areas would see fewer drivers willing to come their way, as app surge prices are more lucrative in bustling, more populous areas.

A $21 minimum wage would be a compromise, and a generous one at that. But California’s lawmakers are instead opting for the more extreme option—one that might look nice on paper but would be terrible in practice.

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When the San Francisco Board of Supervisors declared the National Rifle Association a “domestic terrorist organization” on Tuesday, it also said “the City and County of San Francisco should take every reasonable step to assess the financial and contractual relationships our vendors and contractors have” with the NRA. After that assessment, it said, city officials “should take every reasonable step to limit those entities who do business with the City and County of San Francisco from doing business with this domestic terrorist organization.”

While the resolution is nonbinding, attempts to follow through on that threat could be unconstitutional. As Reason Contributing Editor Walter Olson notes, the Supreme Court ruled in 1996 that “the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.” That case, Board of County Commissioners v. Umbehr, involved a trash hauler who complained that his contract with Wabaunsee County, Kansas, had been terminated because he had publicly criticized the county commissioners.

The principle that Umbehr established poses a problem for San Francisco’s NRA-shunning efforts. As Washington Post columnist Henry Olsen observes, San Francisco’s aspiration to avoid contractors tainted by the NRA “arguably sets the power of a government against a set of citizens solely on the basis of their politics.”

If the city were paying the NRA for firearms training and decided to end that arrangement because of the organization’s Second Amendment advocacy, that decision would be clearly analogous to what the Waubansee County commissioners were accused of doing. More realistically, if the city starts to cut off contractors because of their ties to the NRA, that policy could implicate the contractors’ First Amendment rights.

Any contractors who are NRA members, for instance, have a “financial relationship” with the organization by virtue of the dues they pay. If financial relationships with this “domestic terrorist organization” disqualify people from doing business with the city, that policy would punish NRA members for exercising their First Amendment rights. Or imagine a printer who does work for the NRA at a discounted rate because he agrees with the organization’s goals. If the city stopped hiring the printer because of his “financial and contractual relationships” with the NRA, it would likewise be discriminating against him based on his political views.

San Francisco’s anti-NRA stance is reminiscent of New York Gov. Andrew Cuomo’s attempts to bully state-regulated banks and insurers into shunning the group. Last year a federal judge allowed the NRA’s First Amendment lawsuit challenging Cuomo’s intimidation campaign to proceed. U.S. District Judge Thomas McAvoy concluded that the governor seemed to be sending “the message that insurers and financial institutions that do not sever ties with the NRA will be subject to retaliatory action by the state.”

That is not cool under the First Amendment. “However controversial it may be, ‘gun promotion’ advocacy is core political speech entitled to constitutional protection,” McAvoy noted. He ruled that the state’s regulatory guidance to banks and insurers, combined with Cuomo’s public comments about the NRA, “provides a sufficient basis to invoke the First Amendment.”

However that case turns out, Umbehr seems directly relevant to San Francisco’s anti-NRA campaign as it relates to city contractors. “We recognize the right of independent government contractors not to be terminated for exercising their First Amendment rights,” the Supreme Court said. San Francisco’s supervisors seem to have overlooked that right, possibly because they equate opposition to gun control with terrorism.

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President Donald Trump’s trade war triggered more than 10,000 job losses during the month of August alone, and the costs associated with his tariff increases have sapped roughly 30 percent of the economic benefits gained from his deregulatory actions, according to a pair of new reports.

Taken together, these two data points indicate the extent to which the trade war is affecting the American labor market and hobbling the economy. They demonstrate that the trade war is not only causing tax increases for American consumers and businesses but that those costs are akin to hiking taxes and increasing regulations—things Republican presidential administrations have historically opposed. And the worst is likely yet to come since new 15 percent tariffs on about $112 billion of Chinese-made goods were imposed on September 1, with another set of imports to be subject to tariffs in mid-December.

American companies eliminated 10,488 jobs during August due to “trade difficulties,” according to a monthly report from Challenger, Gray & Christmas Inc., a firm that tracks hiring and labor market data. Overall, employers cut 53,480 jobs in August, according to the report—that’s 39 percent more than the 38,472 jobs cut in August 2018.

“Employers are beginning to feel the effects of the trade war and imposed tariffs by the U.S. and China,” said Andrew Challenger, vice president of Challenger, Gray & Christmas, Inc. “We are continuing to see investor concerns shaking confidence in the market, and employers appear to be cutting workers in response to a slowdown in demand for their products and services.”

Federal job data for August tells a similar story, with hiring slowing despite the fact that the unemployment rate remained steady at 3.7 percent in August. Data released Friday from the Bureau of Labor Statistics (BLS) shows that the U.S. economy added 130,000 jobs last month, which is significantly lower than 190,000 jobs added per month, on average, since the end of the last recession. While the federal data does not indicate why jobs might have been gained or lost, the BLS data suggests impacts from the trade war. Manufacturing jobs were flat during August, while general retail stores lost 15,000 jobs in August—and have dropped by 80,000 during the year.

“The Economy is great,” Trump wrote on Twitter shortly after the monthly BLS report dropped. “The only thing adding to ‘uncertainty’ is the Fake News!“

But it also seems like Trump’s trade war is undermining some of his own legitimately positive economic policies. The tariffs are taxes that impose direct costs on American consumers and businesses, but they also create “unseen” spillover costs—known as “deadweight loss” in economist lingo.

A new analysis by the National Foundation for American Policy, a free market think tank based in Virginia, says Trump’s tariffs have imposed a deadweight loss of $13.6 billion on the American economy. With the new tariffs imposed earlier this month, that total will rise to an estimated $32 billion by the end of the year.

Compare that to the economic gains from the Trump administration’s deregulatory efforts. According to the White House’s Office of Budget and Management, Trump administration policies that reduced regulatory burdens on American businesses—such as the repeal of the Environmental Protection Agency’s “Clean Power Plan” and the elimination of parts of the Affordable Care Act—were responsible for $46 billion in economic gains between January 2017 and June 2019.

In short, the Trump tariffs have already wiped out 30 percent of those gains—and the total is growing.

“These findings show that tariffs are a form of business regulation that can be at least as economically harmful as other forms of regulation, especially for consumers,” says Stuart Anderson, the think tank’s executive director.

Indeed, much has been written about how tariffs are taxes—and, of course, they are. But on a larger level, the trade war should be thought of as a massive tax and regulatory scheme, the kind conservatives would have loudly opposed if implemented by a Democratic president.

Pretty much everything about Trump’s trade war—not just the tariffs, but also the murky process used to determine which companies are exempt from those tariffs, as well as the president’s angry tweets “ordering” American companies to stop doing business in China—elevate the role of government in fundamentally private transactions between individuals and businesses that just so happen to be on different sides of national borders.

Of course, there are negative consequences when the government meddles in the economy—consequences that often include job losses and slower economic growth. That’s something conservatives understand when it’s the Environmental Protection Agency telling businesses how much carbon they are allowed to emit. For some reason, Trump and his supporters don’t seem to draw the same conclusions when it’s the Commerce Department telling businesses where to buy their steel.

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In the aftermath of August’s mass shooting in El Paso, a cursory glance at the news might have left you with the impression that there were two villains that day: the white supremacist who viciously killed 22 people and wounded 24 more, and President Donald Trump, who supposedly incited him. 

“The president cannot be absolved of responsibility for inciting the hatreds that led to El Paso,” read a New York Times piece. Democratic presidential contenders echoed this sentiment, with Beto O’Rourke saying Trump’s rhetoric “has a lot to do with” the shooting and Kamala Harris alleging that Trump was “tweeting out the ammunition” used by the El Paso shooter.

Blaming the words of controversial politicians for the acts of terrorists and lunatics without hard evidence is not new. However, a recent academic paper, reported on by numerous outlets before it went through the peer-review process, suggests that Trump actually is to blame. 

Studying the effects of Trump’s many campaign rallies on reported hate incidents, three professors at the University of North Texas and Texas A&M—Ayal Feinberg, Regina Branton, and Valerie Martinez-Ebers—claim that Trump rallies are associated with a 226 percent increase in such incidents. 

Naturally, their study went viral. Vox, The Washington Post, the San Francisco Chronicle, and CNN all published articles reporting that Trump’s words are so bad that exposure to them leads to a wave of hate crimes.  

Once again, Democratic politicians piled on. “Your language creates a climate which emboldens violent extremists,” wrote Sen. Bernie Sanders (I–Vt.) in a social media post. “Your rhetoric is directly and indirectly inciting hate, Mr. President,” tweeted Rep. Ilhan Omar (D–Minn.).

Is that where the story ends? Not quite. Using the same data and statistical procedures as Feinberg et al., we replicated their study’s headline result. Since we did not have access to the original paper’s data and code, this involved collecting each of the variables mentioned in the original paper, and then independently performing the same analysis. Wherever possible, we copied the decisions that are mentioned in the original paper. Our headline results were very close to those reported in the original paper.

Using additional data we collected, we also analyzed the effect of Hillary Clinton’s campaign rallies using the identical statistical framework. The ostensible finding: Clinton rallies contribute to an even greater increase in hate incidents than Trump rallies.  

This should be enough to give any reader pause. The implied reasoning of those who cited the initial study was that Trump’s caustic and seemingly racist rhetoric contributed to a crueler, more discriminatory climate, ripe for hate crimes. If this interpretation is correct, why did Clinton inspire as many, if not more, hate incidents as Trump did? Did calling millions of Americans “deplorables” promote violence?

Probably not. Both of these results rely on comparing counties with rallies to other counties without them. This produces a glaring problem. Politicians tend to hold political rallies near where large numbers of people live. And in places with more people, the raw number of crimes is generally mechanically higher. Simply put, no one should be surprised that Orange County, California (population 3.19 million) was home to both more reported hate incidents (5) and Trump rallies (2) than Orange County, Indiana (population 19,840, which had zero of each). 

Nor is it sensible to interpret that one of these differences (hate crimes) is caused by the other (political rallies). Indeed, adding a simple statistical control for county population to the original analysis causes the estimated effect of Trump rallies on reported hate incidents to become statistically indistinguishable from zero. The study is wrong, and yet journalists ran with it anyway. 

How could this happen?

Even if researchers attempt to be unbiased, it is easy for ideology to interfere with the practice of the scientific method. Empirical work requires numerous small assumptions and choices, often without obvious right and wrong options, that collectively affect the findings. The hypotheses that researchers choose to test often reflect their beliefs, and when initial statistical findings do not match the researcher’s gut intuition, it is easy to tweak these choices until the analysis “works.” By comparison, when a result “feels right,” it is easy to conclude the analysis with minimal further checks. In short, falling prey to confirmation bias is easy. Attempting to find errors in a result that, deep down, you want to be true, is hard. Furthermore, the ideological imbalance of academia—where liberals outnumber conservatives six to one—can worsen this. While claims deemed conservative may receive much scrutiny, those that comport with liberal sensibilities are more likely to go unscrutinized.

In principle, this need not have much impact outside academia. A neutral press, acting as a gatekeeper, need not report unquestioningly about every unpublished study. However, like academics, journalists as a profession are overwhelmingly liberal, with four times as many reporters identifying as Democrats than as Republicans. Given how little scrutiny was required to reveal the flaws in the thesis that Trump rallies cause hate incidents, one cannot help but wonder whether its viral status was aided by journalists predisposed to believe its message. Would a study claiming Clinton rallies caused hate crimes to increase by 226 percent have been seized on equally enthusiastically? We are skeptical. Because of this, we have some sympathy for the authors of this study—such errors are typically found during peer review and quietly corrected before publication. Yet, these errors have profoundly different implications when they result in widespread, extraordinary-but-false claims in the popular media. 

Many of Trump’s fiercest critics have proclaimed themselves to be staunch defenders of science in the face of a supposedly rising tide of anti-scientific sentiment. By rushing to promote academic results that are most in line with their own preconceived notions, Trump’s critics risk committing the very error they decry. It is bad for America when Trump expresses falsehoods or unnecessarily inflammatory rhetoric. News organizations of record shouldn’t do it either.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

An honest living is one of the best ways to prevent re-offending. But across the country, people with criminal records face more than 10,000 regulations that block them from obtaining a license to work. As an in-depth Washington Post article reveals, these regulations are “often arbitrary and ambiguous,” like denying a license based on one’s “good moral character.” Fortunately, over two dozen states have enacted reforms to pare back these restrictions in recent years. Click here to read the full Post article.

• Suffolk County, N.Y. officials retain nonprofit organization to visit the homes of registered sex offenders and verify their addresses. Registered sex offender: That’s an unconstitutional seizure. District court: Even if the home visits amounted to “seizures,” they were justified under the Fourth Amendment’s special needs doctrine. Second Circuit: Just so. Even though the nonprofit refers noncompliant sex offenders to the police—which sounds a lot like crime control—the main goal of the program is to improve the accuracy of the sex offender registry. Which is a special non-law enforcement need, so the program is A-OK.
• Under federal law, children born outside the U.S. to unmarried noncitizens can automatically gain citizenship if their mother becomes a citizen, but fathers can only pass on citizenship to their out-of-wedlock children if they first legitimate them. But what if the mother is deceased and the only way to legitimate the child is through marriage of the parents? Third Circuit: Creating a system where fathers—but not mothers—are forever precluded from passing on citizenship to their children violates equal protection.
• Allegation: TSA screeners falsely accuse traveler of assault. She spends 18 hours in jail and is charged with 10 crimes, all of which are resolved in her favor after TSA declines to turn over video and the screeners either don’t show up to court or give contradictory testimony. Can she sue? Third Circuit (2017): One can sue when federal law enforcement officers commit intentional torts, like fabricating criminal charges. But screeners aren’t law enforcement, and Congress hasn’t waived sovereign immunity for mere employees. Third Circuit (en banc, over a dissent): Screeners search people. They are law enforcement, and the suit can proceed.
• Man is barred from purchasing a gun but, because of a lapse in the FBI’s background check system, buys one anyway from a federally licensed firearms dealer. Two months later, the man uses the gun to murder nine people in a Charleston, S.C. church. Can the survivors and families of the deceased sue the feds? The Fourth Circuit says yes.
• Did Mississippi officials dilute African Americans’ voting strength in District 22, which includes the Mississippi Delta, when they redrew its legislative boundaries in 2012? (The majority of the district’s voters are African American, but African American-preferred candidates consistently lose there.) Indeed so, says the Fifth Circuit, which violates the Voting Rights Act. The boundaries cannot be used in the November 2019 election. Dissent: “Districting is the politics of politics.” And the district court’s order to redraw the lines to increase black voters by 11% violates the Equal Protection Clause.
• As a Detroit woman is stirring a pot of macaroni on Thanksgiving eve, masked police officers break down her door, handcuff her tightly, and respond thusly when she complains of pain: “[S]hut up, bitch, you shouldn’t be so fat.” In the excessive force lawsuit that ensues, officers invoke qualified immunity. Officers: “Handcuffing that results in bruising does not violate any clearly established constitutional right.” Sixth Circuit: Point of fact, it can. So to trial the case must go.
• Allegation: Detroit woman legally purchases firearm after her home is robbed. Seeking to familiarize herself with it, she fires several rounds from her front porch into the abandoned house next door. Police are called and quickly home in on the woman’s fiancé (despite her loud protestations that she shot the gun), whom they beat and arrest. One cop informs the man he’s “going down for attempted murder of a cop” and writes a report alleging the man fired shots at the cops, though no other officers or evidence corroborate the report. On the morning trial was to begin, the prosecutor learns—for the first time—that an evidence tech’s report contradicts the cop’s report. Case dismissed. Sixth Circuit: No qualified immunity for the cops.
• Chicago man, on Facebook: “Keep pushing me and it won’t end well.” “I’ve given plenty of warnings.” “I swear to Allah and everything I hold dear that I will resort to murder in the next 30 days.” Chicago man, on trial: These “emulations of rap songs” are protected by the First Amendment. Seventh Circuit: They are not.
• Allegation: After car does U-turn to avoid roadblock and woman admits to possessing marijuana, St. Louis police conduct strip and body cavity search on the woman—out of public view but in view of a male officer. (No additional contraband is found, it seems, and the woman is not charged.) Eighth Circuit (with a pair of partial dissents): Her unreasonable search claim can proceed. But she can’t sue for excessive force because there’s no precedent saying officers can’t slam handcuffed and unresisting (if distraught) suspects into hard surfaces. Nor can she sue over the (concededly) inaccurate incident report that police filed.
• Following the Supreme Court’s decision in Janus v. AFSCME, are mandatory state bar association dues now unconstitutional? Eighth Circuit: Not at all! You see, Janus was about unions; it didn’t say anything about guilds.
• Thirty-seven-year-old man and 16-year-old girl have sex, which is legal in Nebraska. He records it and shares the video only with her. Eighth Circuit: Which is child porn. Conviction and eight-year sentence upheld. Concurrence: This result is “unseemly and quite possibly unfair” but compelled by Supreme Court precedent. 
• Allegation: Fresno, Calif. police carry out a search warrant, report they seized $50k cash. But according to the targets of the search, they actually seized $150k cash and $125k worth of rare coins. Can the property owners sue? Ninth Circuit (March 2019): No. There’s no precedent saying cops can’t steal things they seize while executing a search warrant. Ninth Circuit (this week, a revised opinion with a new concurrence from Judge M. Smith): Yeah, we got this right. (Head over to California Appellate Report for more.)
• Man becomes convinced that, as a result of mistreatment by a Veterans Affairs medical center, he is entitled to millions of dollars and is the legal owner of the center itself. He is, alas, mistaken, but he makes multiple phone calls in a single day in which he asserts his position to a staffer in terms both vulgar and personal. Does it violate the First Amendment to charge him with violations of Washington state’s telephonic harassment law? Two-thirds of this Ninth Circuit panel says no.
• People who suspect their names have been added to the Terrorist Screening Database can find travel to be a nightmare, but they’re always permitted to seek review by the Department of Homeland Security. Constitutionally sufficient process? Eastern District of Virginia: Well, DHS doesn’t ever actually tell you if you are or were in the database, so no, no it’s not.
• “Honey, you’ve got to read this! The New Mexico Supreme Court just abolished the spousal privil … oh crap.”
• Instead of the will of the people, elections in North Carolina reflect “the carefully crafted will of the map drawer,” says a state trial court, ruling that legislative boundaries drawn by Republican lawmakers violate the state’s constitution. (There will be no appeal.)

In July, Mississippi outlawed veggie burgers—or at least calling them veggie burgers. Which violates the First Amendment! The label—and other banned labels like “meatless meatballs” and “vegan hot dogs”—is not confusing to consumers. Rather, the ban served to protect the meat industry from competition from vegan and vegetarian food companies. But this week, and in response to an IJ lawsuit, officials reversed course, proposing new rules that replace criminal penalties with common sense. Click here for more.

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The late Justice Antonin Scalia was nobody’s idea of a gay rights activist. When the Supreme Court struck down a state ban on “homosexual conduct” in Lawrence v. Texas (2003), Scalia faulted the majority for embracing “the so-called homosexual agenda.” When the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges (2015), Scalia denounced the ruling as a “threat to American democracy.”

Scalia’s views on legal protections for gays will be front and center once again next month when the Supreme Court hears a far-reaching case that asks whether anti-gay workplace discrimination is illegal under current federal law. Except this time around, Scalia’s jurisprudence will be favorably cited and employed by the openly gay petitioner and his lawyers.

The case is Bostock v. Clayton County, Georgia. Gerald Lynn Bostock was employed by Clayton County as a child welfare services coordinator. He claims that he was fired solely on account of his sexual orientation. He argues that such actions by his employer violate federal law.

According to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate against a job applicant or employee “because of such individual’s race, color, religion, sex, or national origin.” The question before the Supreme Court in Bostock v. Clayton County is whether employment discrimination because of sexual orientation qualifies as employment discrimination “because of…sex.”

In their principal brief to the Supreme Court, Bostock and his lawyers rely in part on Justice Scalia’s unanimous 1998 ruling in Oncale v. Sundowner Offshore Services, Inc. At issue was whether same-sex workplace harassment violated Title VII’s prohibition on discrimination “because…of sex.” Scalia held that it did.

“Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Scalia acknowledged. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The protections of Title VII, Scalia concluded, “must extend to sexual harassment of any kind that meets the statutory requirements.”

Scalia, a self-described textualist, often argued that the plain meaning of a statute should trump the ostensible intentions, purposes, or expectations of the statute’s authors and supporters. That was one of the reasons why Scalia famously rejected the use of legislative history in such statutory cases.

Bostock and his lawyers are now hoping that Scalia-style textualism will help them achieve victory and secure broader legal protections for gay workers nationwide. “In holding that same-sex sexual harassment is actionable under Title VII, the Court in Oncale confirmed that the statute prohibits forms of sex discrimination that Congress may not have envisioned in 1964, and instead goes beyond what was contemplated to cover ‘reasonably comparable evils,'” they told the Court. “Sexual orientation discrimination is clearly such a ‘reasonably comparable evil,’ and is therefore also prohibited.”

Oral arguments in Bostock v. Clayton County, Georgia will be held on October 8.

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Fainting-couch conservatism strikes again: A University of Alabama dean of students is out of a job after conservative media dug up some of his old tweets.

Jamie Riley had dared to criticize the American flag and the police, writing in 2017 that they represent “a systemic history of racism for my people.”

Breitbart decided that this and other tweets of Riley’s merited an article. Reporter Kyle Morris wrote that “a series of resurfaced tweets from Dr. Jamie R. Riley, the University of Alabama’s assistant vice president and dean of students, show he once believed the American flag and police in America are racist.” But the tweets didn’t just resurface on their own—they were publicized by the right-wing news site in order to send a social media mob after Riley.

Just 24 hours later, Riley lost his job. The Crimson White reports:

Jackson Fuentes, press secretary for the UA Student Government Association, confirmed at 4:15 p.m. that Riley is no longer working at the University.

“For us right now, basically all I can tell you is that the University and Dr. Riley have mutually agreed to part ways,” Fuentes said. “So yeah, that’s true, and we do wish him the best.”

In an email at 5:03 p.m., assistant director of the Division of Strategic Communications Chris Bryant released an official statement on behalf of the University confirming Riley’s resignation.

“Dr. Jamie Riley has resigned his position at The University of Alabama by mutual agreement,” Bryant said in the email. “Neither party will have any further comments.”

It seems clear that it was bad publicity from Breitbart that got Riley terminated. This was an entirely foreseeable consequence of writing such an article.

Many pundits on the right constantly inveigh against cancel culture: the drive to shame, punish, and ultimately destroy people for having said something trivially offensive at some point. Comedian Dave Chapelle torched cancel culture in his recent Netflix special, and conservatives applauded. The clip of Chapelle scornfully imitating cancellers has been all over right-leaning media for the last two weeks.

I very much agree that cancel culture is bad. (In fact, it’s one of the main themes of my book.) But as long as the right is perfectly willing to enforce its own version of political correctness, it is difficult to to believe that they really agree in principle that you shouldn’t do this kind of thing. If you only defend the cancelled when you agree with them, then you’re not actually against cancelling. You’re just protecting your tribe.

Conservatives, please condemn Breitbart for this hit job and demand the immediate reinstatement of James Riley.

 

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