Tag: hit&run

So a magistrate judge concluded today in Meriwether v. Shawnee State Univ. (S.D. Ohio); the government as employer, the judge reasoned, may require its employees—including professors—to do this as part of their jobs.

I think that this is likely right, precisely because the government is acting as employer. The government is trying to make sure that its students are effectively taught; it can insist that its employees use techniques that the employer views as conducive to that, and to avoid techniques that the employer thinks will interfere with effective teaching. Indeed, I think that public universities have broad latitude under the First Amendment to tell their professors how to teach and what to teach, just as public K-12 schools do (though in practice most universities leave their professors with a great deal of discretion).

I think similar requirements imposed by the government acting as sovereign might well be unconstitutional—for instance, if the law require private employers (including private colleges) to impose similar rules on their employees (or on students or on patrons or on tenants), or risk lawsuits for tolerating a supposed “hostile public accommodations environment,” “hostile educational environment,” “hostile work environment,” or “hostile housing environment.” This case, thankfully, does not involve that, but future cases might.

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Stanford law professor John Donohue claims to have discovered evidence that the 1994 federal ban on so-called assault weapons “really did work,” because mass shootings and the deaths caused by them declined while the law was in effect, then rose afterward. But the methodology Donohue used is suspiciously selective, and his results do not show what he thinks they do.

“Public mass shootings—which we defined as incidents in which a gunman killed at least six people in public—dropped during the decade of the federal ban,” Donohue and Stanford student Theodora Boulouta write in a New York Times op-ed piece published yesterday. “Yet, in the 15 years since the ban ended, the trajectory of gun massacres has been sharply upward, largely tracking the growth in ownership of military-style weapons and high-capacity magazines.”

Donohue and Boulouta relied on the Mother Jones database of mass shootings, which includes “indiscriminate rampages in public places resulting in four or more victims killed by the attacker.” Yet they chose to focus on cases with six or more fatalities, for no obvious reason except that it exaggerates the changes they attribute to the “assault weapon” ban that expired in 2004.

Based on the definition used by Mother Jones, there were 16 mass shootings, involving 125 fatalities, during the 10 years before the “assault weapon” ban took effect on September 13, 2004. During the 10 years when the law was in effect, there were 15 mass shootings with 99 fatalities. That represents a slight decline in a rare kind of crime, and it is by no means clear that the ban had anything to do with it.

As Donohue and Boulouta note, violent crime in general was falling throughout that period. Furthermore, the law targeted guns based on “military-style” features, such as folding stocks, pistol grips, and threaded barrels, that had little or nothing to do with their lethality in the hands of mass shooters, and it left more than 1.5 million “assault weapons” in circulation.

Limiting their analysis to shootings in which six or more victims were killed, Donohue and Boulouta report that the “federal assault weapon ban in effect from September 1994 through 2004 was associated with a 25 percent drop in gun massacres (from eight to six) and a 40 percent drop in fatalities (from 81 to 49).” Those are bigger drops than the Mother Jones database shows, but only because Donohue and Boulouta arbitrarily excluded mass shootings with five or fewer victims.

Having magnified the decrease associated with the “assault weapon” ban through careful case selection, Donohue and Boulouta suggest the change must be due to the law. “This decline is plausible because assault weapons are semiautomatic firearms designed for rapid fire and combat use, and large-capacity magazines increase the number of rounds that can be fired without reloading,” they say. “While the gun lobby prevented the ban from being as effective as it could have been and saddled the law with a 10-year sunset provision, the ban did impede the easy access to the type of lethal weaponry that those intent on mass killing have readily available in most of the country today.”

Contrary to Donohue and Boulouta’s implication, neither rate of fire nor the capacity to accept detachable magazines distinguished the guns covered by the 1994 law from the guns that remained legal. In any case, the numbers do not suggest that the ban had much of an impact on the weapons used by mass shooters. By my count, guns covered by the ban were used in five out of 16 mass shootings (31 percent) in the decade before it was enacted, compared to four out of 15 (27 percent) while it was in effect. Even leaving aside the functional similarity between banned and legal guns, it seems clear that the slight change in the mix of weapons cannot explain the 21 percent drop in fatalities, especially since the two deadliest pre-ban mass shootings, accounting for nearly a third of the fatalities during that period, were carried out with handguns.

What about after the ban expired? In the subsequent decade, there was indeed a big increase in mass shootings and fatalities caused by them. Based on the Mother Jones tally, there were 36 mass shootings with nearly 300 fatalities. Is that because “assault weapons” were easier to get? Again, the numbers suggest otherwise. Guns that would have been covered by the ban were used in seven of those attacks, or 19 percent. In other words, they were less commonly used in mass shootings after the ban than they were during it.

Donohue and Boulouta claim that the expiration of the federal ban “permitt[ed] the gun industry to flood the market with increasingly powerful weapons that allow for faster killing.” But so-called assault weapons are no “faster” or more “powerful” than functionally similar guns that do not fall into that arbitrary category. They fire the same ammunition at the same rate with the same muzzle velocity. The causal mechanism that Donohue and Boulouta have in mind is therefore rather mysterious, since banning “assault weapons,” even it made all of them disappear overnight, would leave mass shooters with plenty of equally deadly alternatives.

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Last night’s “Climate Town Hall” on CNN wasn’t just long (seven hours!). It was deeply revealing about how Democratic presidential candidates think about government’s power to regulate virtually all aspects of human behavior and how they approach policy and cultural change.

The Democratic contenders have laid out plans costing anywhere from about $1 trillion (Pete Buttigieg) to $16 trillion (Bernie Sanders) in direct federal spending on climate change over the next decade. About half of the candidates have endorsed the Green New Deal proposed by Rep. Alexandria Ocasio-Cortez (D–N.Y.) and Sen. Ed Markey (D–Mass.), which could cost as much as $90 trillion to implement. As important as any specific policy or position outlined last night were the general attitudes that were widely shared by the participants.

A number likened fighting climate change to the effort to win World War II, a metaphor that perhaps says more about their comfort with regimenting society than the speakers intended. During World War II, all industrial production was overseen by the federal government, food and fuel were rationed, and civil liberties were sharply curtailed in the interest of defeating the Axis powers.

In a related way, the candidates all bought into the apocalyptic premises of the questioners, who took for granted the idea that the world is likely to end in a decade or so unless massive, transformational change takes place. The resulting conversations were thus long on the need for action and short on the need to build consensus or to fully assess the costs and benefits of particular actions.

Here are four memorable moments involving the leading candidates:

1. Joe Biden: Here’s Blood in Your Eye.

Whatever the former vice president and Delaware senator actually said last night will forever be a footnote to the fact that his left eye apparently filled with blood during his time on the stage, leading Hot Air‘s Allahpundit to suggest that “individual Biden body parts are now generating their own gaffes.”

Former VP @JoeBiden's eye fills with blood during @CNN #climatetownhallhttps://t.co/Jm6lhWzLHz

— Washington Examiner (@dcexaminer) September 5, 2019

The bloody eye won’t help a campaign that has been plagued with questions about the 76-year-old’s mental and physical health, but the less we remember about what Biden actually says on the campaign trail, the better. Indeed, the nation’s only fully satisfied Amtrak rider had barely started talking when he announced, “We can take millions of vehicles off the roads if we have high-speed rail.” That’s a callback to President Barack Obama’s high-speed rail plans, which went nowhere even when the Democrats controlled the White House and Congress. There’s simply no reason to believe that high-speed rail will ever be successfully built in America (California alone has spent a decade and billions of federal, state, and local tax dollars while making effectively zero progress on its high-speed rail project)—and even if it does get built, there’s little reason to expect it to yield meaningful environmental benefits.

2. Elizabeth Warren: “We only have 11 years to cut our emissions in half.” So let’s…stop using nuclear power?

Sen. Elizabeth Warren (D–Mass.) famously has a plan for everything. While the former Harvard Law School prof sidestepped questions about whether the government would continue to dictate what light bulbs Americans can buy (so that’s a yes), she stressed that we’ve “got, what, 11 years, maybe, to reach a point where we’ve cut our emissions in half.” In suggesting that the world will end in 2030 unless we dramatically reduce greenhouse gas emissions, Warren is invoking Ocasio-Cortez’s stunning misreading of a 2018 Intergovernmental Panel on Climate Change report. Far from declaring that the planet would soon be fried, the report theorizes that, as Reason‘s Ronald Bailey writes, “if humanity does nothing whatsoever to abate greenhouse gas emissions, the worst-case scenario is that global GDP in 2100 would be 8.2 percent lower than it would otherwise be.”

Whether or not such a projection is reliable, Warren clearly believes in the 2030 apocalypse. That makes the stance she took last night against nuclear power puzzling, since nuclear is much cleaner than fossil fuels or coal. “In my administration, we won’t be building new nuclear plants,” she said. “We will start weaning ourselves off nuclear and replace it with renewables.” Which is to say, she’s in line with many progressives (including Bernie Sanders, Ed Markey, and AOC), who say simultaneously that the world is ending but nuclear power should remain off the table, even as they push “solar panels, [which] produce 300 times more waste for the amount of energy created than do nuclear plants,” according to environmentalist researcher Michael Shellenberger. Staring down a supposed existential threat, Warren and her anti-nuke allies still have principles, or something.

Sen. Elizabeth Warren: "The fossil fuel industry… want[s] to be able to stir up a lot of controversy around lightbulbs, around your straws, and around your cheeseburgers when 70% of the pollution of the carbon that we're throwing into the air comes from 3 industries." pic.twitter.com/DhQXbLJO3P

— The Hill (@thehill) September 5, 2019

3. Bernie Sanders: Aggressively fighting the phantom menace of global overpopulation.

A teacher at the town hall said world population was growing beyond the planet’s carrying capacity and asked Bernie Sanders the following:

“Empowering women and educating everyone on the need to curb population growth seems a reasonable campaign to enact. Would you be courageous enough to discuss this issue and make it a key feature of a plan to address climate catastrophe?”

“Well, Martha, the answer is yes,” Sanders said.

Bernie backs using taxpayer money to fund abortions in other countries to control population growthhttps://t.co/hoiwrDS1YV pic.twitter.com/waIdk2Y3Di

— RNC Research (@RNCResearch) September 5, 2019

Pro-life right-wingers are hot and bothered over the Vermont senator’s willingness to support taxpayer-supported birth control, including abortions, in his quest to defeat climate change. For those of us who believe in female autonomy and reproductive rights, that’s far less troubling than watching him buy into the idea that global overpopulation is in any way a problem.

As the folks at Our World in Data note, “global population growth reached a peak in 1962 and 1963 with an annual growth rate of 2.2%….For the last half-century we have lived in a world in which the population growth rate has been declining.” The United Nations has changed its projections for population growth; it now even suggests a 27 percent chance that global population will peak and start to decline by 2100. And there’s this:

Demographer Wolfgang Lutz and his colleagues at the International Institute of Applied Systems Analysis (IIASA) believe that the United Nations’ projections are likely to be too high. In their 2018 demographic assessment, IIASA calculates a medium fertility scenario that would see world population peak at 9.8 billion people at around 2080 and fall to 9.5 billion by 2100.

If worries about the world ending by 2030 are overstated, so too are fears of a planet that can’t support its population, especially given the incredible strides we’ve recently made in reducing global poverty and increasing general living standards.

4. Kamala Harris: “I think we should” ban plastic straws.

“Plastic straws are a big thing right now,” said CNN’s Erin Burnett to Kamala Harris. “Do you ban plastic straws?” “I think we should, yes,” replied the California senator, who then proceeded to laugh uneasily as she said paper straws were not very good.

The moral panic about plastic straws exemplifies how discussions of environmental issues go off the rails. As Reason‘s Christian Britschgi revealed in January 2018, the erroneous idea that Americans used 500 million straws a day was based on a school project done in 2011 by a nine-year-old boy in California. America in fact contributes only a small portion of the world’s plastic pollution problem, and straws represent just a tiny fraction of that. And yet by the end of last year, plastic straws were “an endangered species” around the country due to outrage over a made-up number.

But Harris wasn’t simply trash-talking plastic straws. She also spent time attacking the eating of red meat, calling for the end of land sales for oil and gas drilling, and pledging to end fracking, the very technology that helped lower U.S. greenhouse gas emissions to record-low levels.

Democrat presidential candidate Kamala Harris wants to ban plastic straws, says about paper straws: "If you don't gulp it down immediately it starts to bend" pic.twitter.com/cnIddUuj1s

— Ryan Saavedra (@RealSaavedra) September 4, 2019

 

 

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In this bonus episode of the Cyberlaw Podcast, Alex Stamos of Stanford’s Freeman Spogli Institute talks about the Institute’s recent paper on the risk of Chinese social media interference with Taiwan’s upcoming presidential election. It’s a wide-ranging discussion of everything from a century of Chinese history to the reasons why WeChat lost a social media competition in Taiwan to a Japanese company. Along the way, Alex notes that efforts to identify foreign government election interference have been seriously degraded by (what else?) privacy law, mixed with fear of commercial consequences when China is the attacker. If companies make data about foreign government and “inauthentic” users public, the risk of liability under GDPR as well as Chinese retaliation is real, and the benefits go more to the nation as a whole rather than to the companies taking the risk.

During the interview, Alex references a paper co-authored by his colleague, Jennifer Pan, regarding the “50c party.” You can find that paper here. He also mentions his recent op-ed in Lawfare, which you can find here.

Download the 276th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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In a move that could have far-reaching implications for how websites that host third-party content interact with their users, the Federal Trade Commission (FTC) yesterday slapped Google with a historic $170 million fine for violating children’s privacy laws on YouTube.

The Children’s Online Privacy Protection Act (COPPA) prohibits companies from using persistent identifiers—commonly known as cookies—to create targeted advertisements for users under 13 if their parents have not given consent. The FTC accuses YouTube, a Google subsidiary, of flouting the law by implementing targeted advertising on “child-directed channels.” It’s ordering the tech giant to pay $136 million to the regulatory agency and an additional $34 million to the state of New York.

YouTube has now agreed to stop placing targeted ads on children’s content, regardless of the age of the user who is watching. In a more puzzling turn, it will also remove several other features from children’s videos, including the ability to comment and receive notifications.

COPPA restricts what companies can do with “personally identifiable information,” and the question at the heart of the privacy debate is what exactly that phrase means. In 2013, the FTC expanded its interpretation of the term to include cookies. In theory, the regulatory agency wanted to make it harder to track children’s whereabouts. But that may have been a step too far, says Jim Dunstan, general counsel at the policy group TechFreedom. “I think there’s a very strong argument, even with all the cookies you have, it would be phenomenally difficult to track back to an actual individual,” he tells Reason.

In that same vein, the Google settlement is supposed to protect kids from potential predators. But the decision will likely hamper the creation of new children’s content without meaningfully shielding kids from privacy infringements. Many advertisers would have remained compliant under COPPA, as parents can log in and view content with their children. This gives content creators new incentive to mislabel children’s content as adult. The complete elimination of targeted ads on those channels would slash their revenues by about 50 percent, according to TechFreedom.

YouTube says it has a solution for that workaround. CEO Susan Wojcicki writes that the company will employ “machine learning to find videos that clearly target young audiences, for example those that have an emphasis on kids characters, themes, toys, or games.” But those artificial intelligence capabilities are far from perfect, and what exactly constitutes a children’s video remains inherently subjective. YouTube classifies some videos as “child-directed” and others as “family-based play” and “co-play”; who is to say definitively which is which?” And who is to say that only children watch “child-directed” content, some of which is general educational material?

Parents will also have to deal with the fallout, as children’s videos will now operate with crippled functionality. All of the typical YouTube video features—from commenting to following a creator to creating a playlist—require a log-in, and thus demand personally identifiable information. Rather than institute an age verification process, the streaming site has opted to eliminate the functions entirely. Adults will no longer be able to plop their children in front of a curated stream of videos, for instance.

Dunstan argues that such changes carry threatening implications for other sites that host third-party content. FTC Chairman Joe Simons disagrees, telling reporters yesterday that “no other company in America is subject to these types of requirements.” Yet previous FTC guidance stipulated that “operators of general audience sites” were not required “to investigate the ages of visitors to their sites or services.” YouTube is classified as a general audience site—but it still came out on the losing end.

“This is the exact thing that needs to be debated through a rule-making process. We’ve now got new rules,” says Dunstan. “We should be debating this through a process where everybody gets to have their say, as opposed to Google, YouTube, and FTC staff each having their own agendas, closed in a room, which is now going to effectively govern the internet.”

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The dumb drama around this past weekend’s “Straight Pride” march in Boston has taken an increasingly bizarre turn, as a Boston judge has taken it upon himself to overrule both prosecutors and defenders who want to drop charges against some people arrested during the parade.

It’s hard to decide where to begin when describing this roiling hornet’s nest of culture-war madness. The story includes not just the typical performative conflict between alt-right marchers (complete with Milo Yiannopoulos on hand as parade grand marshal) and leftist counterprotesters, but also conflicts with police unions, reformist district attorneys who want to ease up on overly harsh penalties for nonviolent crimes, and the tough-on-crime types who want to stop them.

On Saturday, around 200 tiresome alt-right trolls put on a “Straight Pride” march in Boston. They were vastly outnumbered by counterprotesters—some of which were allegedly members of antifa—and things, unsurprisingly, got messy. A confrontation between cops and counterprotesters ensued, and some officers were recorded using pepper spray on some of the crowds:

Boston Police Department spraying pepper spray into the crowd of protestors of the Straight Pride Parade #boston #straightpride #cityhall #pepperspray #protests #policebrutality pic.twitter.com/TLTIbdcu2A

— Lizzie Heintz (@lizzieheintz) August 31, 2019

Despite the “Straight Pride” monicker, the entire affair wound up having little if anything to do with LGBT issues. It was basically just another attempt to try to provoke reactions, complete with a giant pro-Trump float endorsing a border wall.

By the end of the day, 36 people had been arrested. (It’s not clear from the information made public whether these were all counterprotesters or if the number also includes marchers or others on the scene.) Four officers sustained non-serious injuries.

Some of the arrests themselves seemed suspect, and the Boston Police Department says it will be examining officers’ use of force during the protest. A clip from a local ABC affiliate, WCVB, appears to show a police officer tackling and arresting a man who was simply walking around, talking on a loudspeaker attached to his cell phone, and recording what was happening. The station says he was charged with assaulting a police officer.

Suffolk County’s new district attorney, Rachael Rollins, was elected in 2018 as a reformer pledging to scale back on the prosecution of low-level offenses. During the campaign, she offered a list of crimes for which her office would likely decline to press charges. The list includes simple drug possession, minor driving offenses, disorderly conduct, and any charge of resisting arrest when a person is not charged with any other crimes to justify the arrest.

Many of the arrests were simply for disorderly conduct and were not of a violent nature. It’s not unusual for a D.A.’s office to decline to prosecute these arrests, and Rollins went to court to ask Boston Municipal Judge Richard J. Sinnott to dismiss charges against seven of these nonviolent offenders (including the man mentioned above who had been arrested while simply talking to the crowd).

But Sinnott refused to dismiss the cases. He even imposed bail demands for the defendants, even though they had been charged with relatively minor crimes and bail was not requested. Sinnott then poured kerosene on the fire by ordering a defense attorney removed when she attempted to explain how, under Massachusetts case law, Sinnott was improperly interfering with prosecutors’ discretion.

So now Rollins has filed an emergency petition (read it here) with the Massachusetts Supreme Judicial Court, seeking an intervention to stop Sinnott from forcing these cases to move forward against prosecutors’ wishes. Wednesday night she called Sinnott’s behavior an “unconstitutional abuse of power”; in her petition, she wrote, “Not only will the Commonwealth be forced to proceed on a criminal case it deemed inappropriate for prosecution…but the defendant will now suffer from a criminal record created as a result of the judge’s unconstitutional decision to step out from behind the bench and step into the shoes of the prosecutor.”

Meanwhile, the Boston Police Patrolman Union waded in to demand that the D.A. prosecute everybody they arrested. Union chief Michael Leary complained about protesters throwing rocks and unidentified liquids at them. Leary said, “You have people screaming at them all day long that they’re fascists and that they’re the bad guys. How would anybody like to have projectiles thrown at them all day?”

Leary said that before the judge acted. After Sinnott made his move, union spokesperson Larry Calderone praised the decision, saying the union “couldn’t be happier with the judge that’s on the bench.”

While I don’t want to ignore the palpable frustration police officers must feel when they’re forced to play referee when two groups of people are itching to get physical, de-escalation is part of the job here. They, and Sinnott, need to get out the mindset that if they just bust a few more heads, these problems will all go away. That’s not how it works. Indeed, some of these protesters will take it as a badge of honor that they’ve been the subject of state-sanctioned violence. And arresting random groups of people will just make it harder to focus on the protesters who actually did assault officers.

Rollins was elected by the citizens of Suffolk County, and reductions in unnecessary prosecutions were an explicit focus of her campaign. If Sinnott and the police union object to that approach, the appropriate thing for them to do would be to support an opponent next election.

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The health care debate in the Democratic primary so far has, for the most part, revolved around a single question: Medicare for All—or something else? 

Given the persistent political and policy challenges to passing and implementing a single-payer system along the lines envisioned by Sen. Bernie Sanders (I–Vt.) and other Medicare-for-All boosters, the answer is probably going to be “something else.” So it’s worth asking what that something might be.

The most likely answer is a “public plan” or “public option”—that is, a government-run health insurance plan that would exist alongside today’s insurance options, supplementing employer coverage, Obamacare, Medicare, and Medicaid without fully displacing them. Indeed, should Democrats win both Congress and the White House, the proposal of a public option is, at this point, far more likely than a big push for Sanders-style Medicare for All. 

The public option was a feature of several early drafts of Obamacare, but was dropped from the final bill, primarily due to opposition from then-Sen. Joe Lieberman of Connecticut. So it’s no surprise that the presidential race’s most prominent public option backer is former vice president and current Democratic frontrunner Joe Biden, whose health care proposal has been billed as both an update to Obamacare and a moderate alternative to Sanders’ single-payer plan. 

A public option would probably be less radical, less disruptive, and, on paper, less expensive for the government than Sanders’ Medicare for All proposal. Yet it would still pose real challenges in terms of cost and political viability.

Although the final text of Obamacare didn’t include a full-fledged public plan, it did include a substitute in the form of funding for nonprofit insurance co-ops. As the health care law was being drafted, members of the Obama administration, including President Barack Obama himself, made clear that they saw little difference between the two systems: “You could theoretically design a co-op plan that had the same attributes as a public plan,” then–Health and Human Services Secretary Kathleen Sebelius told Bloomberg. “I think in theory you can imagine a co-operative meeting that definition,” Obama told Time, referring to a public option. 

Public plan proponents often pitch the idea as a way to increase insurance market competition. It wouldn’t outlaw private insurers like a Sanders-style Medicare for All plan. Instead, they argue, it would force them to compete with government-run insurer that wouldn’t need to make a profit and could therefore be more efficient. And, they add, if a public option pays rates comparable to Medicare’s—which tend to be much lower than the rates—then cost estimates indicate the plan could actually save the federal government money, reducing the federal budget deficit by more than $100 billion over a decade. 

This was the basic argument for Obamacare’s co-ops as well. Yet by and large, they were failures. The health law called for $6 billion in federal funding to help start these nonprofits, a figure that was eventually whittled down to about $2.4 billion. More than 20 were launched. By 2016, 17 had collapsed, leaving hundreds of thousands of beneficiaries without coverage. In every case, the reason was simple fiscal math: The co-ops couldn’t bring in enough premium revenue to cover medical expenses. 

If you view the co-ops as test cases for a public option, there are lessons to be learned from these failures: Launching a new health insurance plan at reasonably competitive rates that also bring in enough money to pay the bills is difficult, even with billions in federal funding at your disposal. There’s little reason to think that a federally backed public option would fare any better, especially since lawmakers would face considerable political pressure to keep premiums artificially low. 

There’s a crucial difference, of course, between a government-subsidized insurer run as a nonprofit and an entirely government-run health insurance plan. When Obamacare’s co-ops ran out of money, they shut down. A national public plan might conceivably continue to operate at a loss forever, with taxpayers making up the difference. Medicare’s long-looming insolvency—currently set for 2026—makes clear that long-term actuarial soundness is no requirement for a government health care program. 

And a public option’s costs could be greater than Medicare’s, since it there would be considerable political pressure to pay higher rates. 

That’s what happened in Washington, the only state to implement a public option. As The New York Times reported in June, state legislators originally wanted to set up a state-run health insurance plan that would pay the same rates as Medicare. But that would have represented a steep reduction from the rates paid by private insurance; Obamacare plans, for example, paid about 174 percent of Medicare rates. Doctors and hospitals pushed back against the proposal, and lawmakers eventually gave in, passing a plan that paid 160 percent of Medicare rates. 

As the bill’s sponsor, state Sen. David Frockt (D–46th District), told the Times, that concession was the only way to get the bill over the finish line. “I don’t think the bill would have passed at Medicare rates,” he said. “I think having the Medicare-plus rates was crucial to getting the final few votes.” 

Biden isn’t the only prominent Democrat to back a public option. Influential Senate Democrats—who would presumably end up crafting much of any actual legislation—have been touting the idea recently too, saying that they no longer worry about trying to appease their Republican opponents. 

But the problems and complications with building a new government-run insurance plan aren’t exclusively a matter of Republican obstructionism. Hospitals and doctors will lobby for higher rates under any circumstance, and designing insurance that is actuarially sound while offering competitive benefits and pricing will be a challenge no matter what. In other words, it would still come with plenty of potential pitfalls—and so far, Democrats appear to have few if any plans to deal with them. 

Finally, there is the matter of the public option’s place in the health care debate as the sensible, pragmatic fallback position for those who see Medicare for All as too much, too soon. Biden and others are pitching the idea as a moderate alternative to single-payer, but this is a relative comparison that works only because Medicare for All is even more radical. A public option might be less immediately disruptive than a full-stop single-payer overhaul, but it would still substantially increase the feds’ role in financing health care. Over time, it would expand and extend the federal government’s control over the system, giving both Congress and the executive branch another means with which to influence the delivery of health care. It wouldn’t quite be a government takeover, but the government would certainly tighten its grip. 

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Berkeley, California, is looking like it will join the small but growing number of American cities that have decriminalized psychedelic mushrooms.

Next week, the Berkeley City Council will consider a measure that would forbid city officials, including police, from using city funds or resources to enforce criminal penalties for the possession or use of “entheogenic plants or fungi.” That would include not just “magic” mushrooms but also mind-altering cacti, iboga-containing plants, and Ayahuasca.

Possession of these substances is currently punishable by up to a year in jail and a $1,000 fine under California state law.

Bay Area organization Decriminalize Nature is leading this effort. The group was behind a successful effort to decriminalize entheogenic substances in Oakland in June, making it the second city in the country to adopt such a measure. In May, Denver voters narrowly approved a ballot initiative legalizing psilocybin mushrooms.

“It is time to end the war on entheogenic plants and fungi,” reads Decriminalize Nature’s website, which argues that ditching criminal penalties for entheogenic substances would help secure an “inalienable human right to develop our own relationship with nature.”

Under Berkeley’s proposed resolution, police would still be able to enforce criminal penalties against people who are under 21, as well as anyone found to be commercially manufacturing or selling these entheogenic substances.

Marijuana Moment reports that Decriminalize Nature is also working to get a decriminalization measure on California’s 2020 state ballot, which the group hopes will “build the framework for eventual legalization.”

The group is also reportedly working with activists across the country to advance similar local decriminalization resolutions.

Activists in Oregon are currently collecting signatures for their own, even more ambitious statewide ballot initiative. It would legalize the manufacture and sale of psilocybin products in therapy-like environments.

Berkeley city councilmembers will vote next week on whether to send its decriminalization measure to the Berkeley Community Health Commission for review, after which it would go back to the city council for a final vote.

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Unlike most mass shooters, the man who killed seven people in Midland and Odessa, Texas, on Saturday seems to have been legally barred from owning firearms. The Associated Press, citing an unnamed “law enforcement official,” reports that he tried to buy a gun from a federally licensed dealer in 2014 but was blocked because of a “mental health issue.” He purchased the AR-15-style rifle that he used in the drive-by shootings in a private transaction that was not covered by the federal background check law.

The Midland/Odessa shootings, in other words, looks like a good example of how expanding the background-check requirement might stymie would-be mass murderers. But is it really? That partly depends on how much compliance can be expected with a law that requires background checks for all gun sales.

Last year, researchers who looked at what happened after Colorado, Delaware, and Washington imposed that requirement reported that “background check rates increased in Delaware, by 22%–34% depending on the type of firearm,” but “no overall changes were observed in Washington and Colorado.” It is hard to see how the federal government can do any better, since it does not know who owns which guns and cannot possibly monitor unrecorded transfers.

The lack of compliance does not necessarily reflect a sinister desire to assist mass murderers, or even a nonchalant attitude toward violent crimes that might be committed by gun buyers. By and large, I suspect, it reflects a widespread sentiment among gun owners that they should be able to dispose of their own property without going to the trouble and expense of arranging transactions through government-licensed dealers. But whatever the motivation, the general unwillingness to jump through those hoops represents a serious and probably insurmountable problem for people who imagine that “universal background checks” will prevent mass shootings even in the small minority of cases where the perpetrator has a disqualifying criminal or psychiatric record.

To the extent that expanding the background-check requirement actually results in more background checks, as appears to have happened in Delaware, that is by no means an unalloyed good. Even the American Civil Liberties Union, which maintains that the Second Amendment does not protect an individual right to arms, recognizes that “the categories of people that federal law currently prohibits from possessing or purchasing a gun are overbroad, not reasonably related to the state’s interest in public safety, and raise significant equal protection and due process concerns.”

While we don’t know specifically what “mental health issue” legally barred the Texas shooter from owning guns, it need not have involved any perceived threat to other people. Under federal law, anyone who has ever undergone involuntary psychiatric treatment, whatever the reason, is forever stripped of his Second Amendment rights. That policy affects a lot of people who have never shown any violent tendencies.

In 2014, for instance, the U.S. Court of Appeals for the 6th Circuit decided a case involving Clifford Tyler, a 73-year-old resident of Hillsdale County, Michigan, who tried to buy a gun in 2011 but was turned away after failing the background check. Tyler learned that he had permanently lost his Second Amendment rights because he had been forced to undergo psychiatric treatment in 1985 after an emotionally devastating divorce. His daughters were concerned that he might be suicidal, and a court ruled that he posed a threat to himself.

Since then, according to Tyler, he had not experienced any more bouts of depression. A psychologist who evaluated Tyler in 2012 found no evidence of mental illness and concluded that the 1985 incident “appeared to be a brief reactive depressive episode in response to his wife divorcing him.” Yet under 18 USC 922(g)(4), that one incident barred him from owning a gun, even a quarter-century after his psychological crisis.

In District of Columbia v. Heller, the landmark 2008 case in which the Supreme Court recognized that the Second Amendment protects an individual right to arms, it said “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” But the provision that stopped Tyler from buying a gun goes further than that, the 6th Circuit noted in its ruling, since “the class of individuals constituting those ever previously mentally institutionalized is not identical to the class of individuals presently mentally ill.” Because the proscribed category is overbroad, the appeals court said, it is not “narrowly tailored” to serve a “compelling interest,” as required under strict scrutiny. The court concluded that “Tyler’s complaint validly states a claim for a violation of the Second Amendment.”

The Supreme Court in Heller also mentioned the federal ban on gun possession by people with felony records as an example of longstanding, presumptively constitutional restrictions. Yet that proscribed category is also clearly overbroad. If someone was convicted of growing marijuana, for example, what does that tell us about his violent tendencies at the time, let alone decades later? Likewise with the bans on gun ownership by unauthorized U.S. residents and illegal drug users, including cannabis consumers in states where marijuana is legal. Unlike someone who was convicted of a violent crime, these people have not done anything that suggests they might use a gun to hurt others.

Fans of background checks frequently cite blocked sales as evidence that the policy is working. Yet if those disqualified buyers mainly fall into nonviolent categories, the fact that they were unable to exercise their Second Amendment rights by purchasing firearms is a bug, not a feature. The threat generally posed by people who are not legally allowed to own guns can be divined by the way they are usually viewed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

If the FBI cannot complete a background check on a gun buyer within three days, the dealer is allowed to complete the sale, so the ATF, a law enforcement agency that is part of the Justice Department, is sometimes tasked with seizing guns after the fact. A 2004 report from the Justice Department’s inspector general noted that there were often delays in retrieving weapons from prohibited buyers, partly because “ATF special agents did not consider most of the prohibited persons who had obtained guns to be dangerous and therefore did not consider it a priority to retrieve the firearm promptly.” If these people were not actually dangerous, one might reasonably wonder, why were they barred from owning guns in the first place?

In short, there are three major problems with background checks as a way of preventing mass shootings: The vast majority of mass shooters do not have disqualifying psychiatric or criminal records; those that do can easily evade background checks, even when they are notionally required, through private sales; and the people whose purchases are actually blocked are for the most part harmless. As a general solution to gun violence, of which mass shootings represent only a tiny share, background checks are even less effective, since ordinary criminals are highly motivated to obtain the tools of their trade and can do so through straw buyers or by taking advantage of the black market.

That does not mean background checks never prevent homicides. They might work against impulsive people with violent intent and disqualifying records who simply give up after unsuccessfully trying to buy a gun from a licensed dealer. But such would-be gun buyers are probably pretty rare, and the current system casts a very wide net, sacrificing the constitutional rights of many innocent people, in order to catch them.

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Here are five rules of free speech and corporations. 

Rule #1: Corporations have First Amendment rights. The Supreme Court’s first decision protecting individuals’ free expression rights came in 1931. Its first decision protecting a corporation’s free expression rights came just five years later, in 1936. That decision involved a newspaper corporation; but the Court’s first decision protecting a nonmedia business corporation’s free expression rights came five years after that, in 1941. From the 1950s onwards, many Court decisions protected for-profit corporations. Indeed, the very first American court decision striking down a state statute on free speech grounds took place in 1894, and it protected the rights of a corporation.

When the Supreme Court split sharply over corporate speech in the 2010 Citizens United case, no-one doubted that the First Amendment protects corporations generally; the question was whether there was an exception for corporate speech supporting or opposing political candidates.

Why is this so? Partly because corporations are, after all, made up of people. If the government takes a corporation’s property, that doesn’t hurt the “corporation” in some abstract sense—it hurts the corporation’s stockholders. If the government stops The New York Times Co. from criticizing the President, that restricts the First Amendment rights of editors at The New York Times. 

Rule #2: The media doesn’t have any greater First Amendment rights than other speakers. The “freedom of the press” isn’t the freedom of a business category called “the press.” It has been understood, since the 1700s, as the freedom of all to use the printing press (and its technological heirs). There are some statutes that give institutional media special additional rights beyond what the First Amendment gives them—but the Constitution doesn’t distinguish reporters from bloggers, or media businesses from other businesses.

This means that the First Amendment protects General Motors and Walmart as much as it protects The New York Times or CNN or The New Republic. If GM’s corporate speech could be restricted, then the New York Times’ speech could be, too. And because The New York Times‘ speech can’t be restricted, then neither can GM’s.

This, by the way, means that First Amendment law doesn’t have to decide who is media and who isn’t. Is Google media? How about Amazon, which sells electronics, sells books, and makes movies? The Supreme Court doesn’t have to decide, because all corporations have First Amendment rights, regardless of whether they are “media.”

Rule #3: Unions have free speech rights, too. Citizens United struck down a federal law that banned both corporations and unions from speaking out for or against political candidates.

Rule #4: Individual stockholders can’t veto corporations’ political spending—whether those corporations publish newspapers or make widgets. Generally speaking, American corporations are run on a majority-of-shares-rules basis; individual objectors can generally sell their stock, but they can’t order managers around.

That’s a familiar rule for all sorts of spending. If you don’t like Ben & Jerry’s liberal messages, you don’t have to buy their ice cream. But you can’t just buy a share and then demand that they stop saying things that you, as a minority stockholder, dislike. Likewise, if you don’t like a company’s charitable contributions, or the tone of its advertising, or its speech opposing unionization, you can’t stop such corporate action even if you own shares. And you can’t control The New York Times‘ editorial policy even if you are a stockholder.

The same is true for spending about political candidates. If a corporation wants to endorse a candidate, dissenting shareholders can’t stop that any more than they can stop any of the corporation’s other action or speech.

Rule #5:  Corporate and union direct contributions to candidate campaigns can be sharply limited, though independent spending is fully protected. The rationale for this is complicated, but basically direct contributions of money to candidates, whether by corporations or individuals, are less constitutionally protected than speech (including expensive speech) by those corporations or individuals.

So, to sum up:

Rule #1: Restrictions on corporate speech generally violate the First Amendment, to the same extent that restrictions on individual speech do. Some Justices think there should be an exception for speech supporting or opposing candidates and maybe ballot measures, but all the Justices agree that the general rule is that corporations have free speech rights.

Rule #2: That’s in part because the institutional media get no special First Amendment rights beyond what others have. So if corporate speech could be restricted, speech by corporate-owned newspapers, magazines, book publishers, movie studios, and the like could be restricted, too.

Rule #3: Union speech is constitutionally protected, also.

Rule #4: Objecting minority shareholders can’t block corporate speech with which they disagree, just as they can’t block corporate charitable contributions, advertising campaigns, or product designs with which they disagree.

Rule #5: Corporate and union direct contributions to candidate campaigns can be sharply limited, though independent spending is fully protected.

 

Written by Eugene Volokh, who is a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.
Additional graphics by Joshua Swain.

This is the fifth episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, a blog hosted at Reason.com.

This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.

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Music: “Lobby Time,” by Kevin MacLeod (Incompetech.com)
Licensed under Creative Commons: By Attribution 3.0 License
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