Tag: hit&run

Have We Crossed the Threshold of Doom?

At the very end of today’s Reason Roundtable podcast, a rare bit of happy news flashed across the series of tubes: New York Gov. Andrew Cuomo announced that the Empire State will slowly begin to reopen on May 15. Thank God for that, given that the previous 50-plus minutes of the ‘cast was filled with phrases like “threshold of doom,” “sobbing face-first in a parking lot,” and (shudders) “backdoor UBI caucus.” Two months of lockdown has been good for neither fiscal nor mental sanity.

At other points in this episode, Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and Matt Welch engage in what are now weekly discussions on psychedelics, Libertarian Party presidential politics, and weird Zoom activities.

Audio production by Ian Keyser and Regan Taylor.

‘Reese Peace Riddim’ by Konrad OldMoney

Relevant links from the show:

“United Airlines Received $5 Billion From Taxpayers to Protect Employees’ Paychecks. Now It’s Cutting Hours for 15,000 Workers,” by Christian Britschgi

“The New Great Depression? Unemployment Hits Levels Not Seen Since 1930s,” by Elizabeth Nolan Brown

“Obama’s Shaggy Dog Story About the Golden Gate Bridge,” by Matt Welch

“Remembering ‘The Forgotten Man,’” by Nick Gillespie

“Coronavirus Curfews Are Counterproductive and Un-American,” by Billy Binion

“Were the COVID-19 Lockdowns a Mistake?” by Zach Weissmueller

“Governments Have Screwed Up Mask Purchase and Distribution. Maybe Everyone Should Be a Libertarian in a Pandemic,” by Brian Doherty

“Libertarian Party To Choose Its Presidential Ticket in Virtual Vote Over Memorial Day Weekend,” by Brian Doherty

“Justin Amash: ‘I’m Promising to Be a President Who Will Reduce My Power,’” by Matt Welch

“Rick Doblin: ‘People Should Have the Fundamental Human Right To Change Their Consciousness,’” by Nick Gillespie

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Federal and State Governments Have Less Control Over Shutdowns Than They Think

On April 16, President Donald Trump and the White House’s COVID-19 task force outlined a three-step process for states to begin unwinding their economic shutdowns. The plan was contingent on ramping up testing and slowing the spread of new cases, and it likely would have taken months to progress from phase one to phase three.

Just three weeks later, a growing number of states have largely discarded the federal plan in favor of their own efforts aimed at restarting their shattered economies.

On April 22, Pennsylvania Gov. Tom Wolf outlined a three-step process for reopening regions of his state, with counties progressing from “red” to “yellow” to “green.” Counties can be fully reopened when there are fewer than 50 cases per 100,000 residents over two weeks. The state has cleared 37 counties (out of 67) to move to the “yellow” stage on May 15.

Less than three weeks later, officials in six Pennsylvania counties that have yet to meet that threshold have declared their intention to reopen anyway, and sheriffs in two other counties say they will not issue citations to businesses that open in defiance of the state’s shutdown order. Although the county commissioners acted independently from one another, all make more or less the same argument: The state-mandated economic shutdown has been ruinous, the vast majority of coronavirus deaths in Pennsylvania have been in nursing homes, and the 50-in-100,000 threshold will take too long to reach.

The response to the coronavirus pandemic may appear to have been directed by government edict. State governments ordered people to stay home and forced businesses to close, and the White House had daily press briefings to prescribe courses of action. Frustrated residents of various states have directed their outrage towards governors by staging protests at state capitols.

But the weekslong shutdowns that some parts of the country continue to endure were never enforceable from the White House or from any state capitol. They always depended on voluntary compliance from residents. Indeed, most state-level stay-at-home orders came days or even weeks after most Americans were already staying home, as research from FiveThirtyEight pretty conclusively shows.

That compliance is now fraying in many places. And that’s why governments cannot fully control the economic reopening. It’s not a few dozen protestors who will end the quarantines; it’s the millions of other people who have simply started going about their lives again.

Officials need to recognize the limits of their authority. Federal, state, and county authorities can provide guidelines to individuals and businesses about the best ways to protect public health. They can, for example, encourage people to wear face masks in public. But they must also recognize that enforcing those rules with the threat of arrest is counterproductive. Similarly, a prohibition on large-scale public gatherings is much more enforceable than trying to control the behavior of every business in the state.

In trying to enforce overly broad and sometimes arbitrary bans on economic activity, federal and state authorities have lost some of the public trust that’s essential to fulfilling the role that government actually can fulfill right now: giving people advise on what’s safe and what isn’t.

“Total shutdowns cannot be expected to last for weeks or months,” I wrote in March. “An equilibrium will be found—either purposefully and orderly by official policy, or haphazardly when people simply can’t take it anymore.”

The White House has more or less given up on trying to force states to stick to the three-step process outlined last month. Whether that’s because the Trump administration realizes it has lost control of the situation or because the president is happy to have someone else to blame if things go poorly, well, you decide.

But in Pennsylvania, Wolf appears prepared to drop the hammer on counties that attempt to buck his orders. In a series of tweets on Monday afternoon, the governor threatened to withhold funds from counties that reopen without state approval. Businesses that open without his say-so could risk their liability insurance and the loss of state-issued licenses, including liquor licenses for restaurants and bars.

There is, of course, a difference between the federal-state relationship and the state-county relationship. Counties and municipalities are, legally, the creations of the state government and do not have the same degree of independence as the states do from the federal government.

Still, it will be instructive to see whether Wolf’s heavy-handed approach works or simply spurs more opposition. Pennsylvania has been at the forefront of the civic battles over COVID-19. It was one of the first states to order businesses to close, and it was one of the first states to see a huge spike in pandemic-era unemployment. It makes sense that it would be one of the places where resistance to the shutdowns—organized resistance within various levels of government, not simply angry mobs outside the capitol—would occur.

“This is not a time to give up,” Wolf said in a tweet, after outlining how he planned to keep counties in line. “I intend to keep fighting.”

One might wonder whether he is fighting the virus or his fellow Pennsylvanians—and whether winning one battle will require losing the other.

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Meet the Press Mangles a William Barr Quote to Make Him Look Awful, and It Backfires

It takes a lot of work to make Attorney General William Barr look like a victim, but Meet the Press host Chuck Todd is up to the task.

Last week the Department of Justice made the surprising decision to recommend dropping charges against former National Security Advisor Michael Flynn for lying to the FBI. Many critics of President Donald Trump saw this as further evidence of corruption in the executive branch.

On Thursday, CBS reporter Catherine Herridge sat down with Attorney General William Barr to get his explanation of his decision. The interview isn’t terribly long. Barr says that Flynn’s lie to the FBI was not “material” under the law because the investigation of Flynn did not have a valid justification, and he argues that Flynn’s conversations with a Russian ambassador were legitimate work as a representative of Trump’s transition team. These facts, he suggests, justify dropping the charges.

Reasonable people can agree or disagree. (I think Barr’s actually right here, though I wish he’d apply this standard to other people the FBI catches in a lie.) But on Meet the Press, Todd focused on another part of the interview, which he selectively edited to attack Barr. Toward the end of the interview, Herridge asks Barr, “When history looks back on this decision, how do you think it will be written? What will it say about your decision making?”

Here is Barr’s full response:

Well, history is written by the winner. So it largely depends on who’s writing the history. But I think a fair history would say that it was a good decision because it upheld the rule of law. It helped, it upheld the standards of the Department of Justice, and it undid what was an injustice.

But when Todd got his hands on it for Meet the Press and presented it for discussion, the quote cut off after the second sentence. Todd then told guest Peggy Noonan that he was “struck by the cynicism of the answer. It’s a correct answer, but he’s the attorney general. He didn’t make the case that he was upholding the rule of law. He was almost admitting that, ‘Yeah, that this was a political job.'”

Todd’s description is the exact opposite of what actually happened in the interview. As much criticism Barr deserves for his authoritarian view of the law, his support for harsh sentencing, and his broad interpretations of the power of the president, he spends much of this interview (not just this one answer) attempting to make the case that he is, in fact, upholding the law.

A spokesperson with the Department of Justice tweeted out her objection to the show’s selective editing. The Twitter account for the show subsequently tweeted an apology: “Earlier today, we inadvertently and inaccurately cut short a video clip of an interview with AG Barr before offering commentary and analysis. The remaining clip included important remarks from the attorney general that we missed, and we regret the error.”

But that’s only part of the trouble, assuming the clip was indeed “inadvertently and inaccurately cut short.” The bigger problem is that either Todd either was oblivious to the interview’s content aside from than those two sentences (meaning he didn’t actually watch the interview before discussing it on his show) or was deliberately attempting to mislead the audience. I don’t know which possibility is worse.

Either way, he has fueled further distrust in the media, which Trump has been happy to use for his own purposes.

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How Fashion Designers Are Thwarting Facial Recognition Surveillance

Every day, your movement is tracked. Your purchases are logged, your searches saved. And increasingly, your face is scanned.

Facial recognition technology is becoming more widespread daily, and governments are finding new applications in the midst of the coronavirus pandemic. Privacy International reports that 24 countries have already implemented location tracking to help ensure compliance with quarantines.

Were you thinking that face masks might help protect your privacy? China’s facial recognition algorithms have already figured out a way around them. In January, The New York Times reported that a company called Clearview AI has created a database that makes it possible to snap a photo of a stranger and reveal that person’s identity.

The technology was developed using more than three billion images scraped from public social media accounts by Hoan Ton-That, an Australian who HuffPost revealed has collaborated with anti-immigration alt-right operatives. Elements of Clearview AI are in use by more than 600 law enforcement agencies in North America—including the FBI, Department of Homeland Security, and ICE.

So can we resist the surveillance society? Should we?

Kate Rose says yes.

“I think you have a right to consent to how your information is used, especially if it’s meant to be at some point used against you or used extrajudicially,” says Rose, the cybersecurity analyst and fashion designer who founded Adversarial Fashion, a line of surveillance-resistant clothing. Its wares include masks meant to block facial recognition cameras, and shirts patterned with fake license plates meant to feed bad data into automated license plate readers.

Rose’s concern about extrajudicial use of personal data is more plausible than ever in the age of coronavirus lockdowns.

Politico reported in late March that the Department of Justice has asked Congress pass a law allowing indefinite detention without trial of U.S. citizens during national emergencies. (The legislation has yet to advance.) Unauthorized movements picked up by surveillance could theoretically be a pretext for such indefinite detention.

“Privacy rights need to be more enshrined,” says Rose, “in terms of protecting your right to any data collected about you [requiring] a warrant before it is used.”

Rose is one of several designers trying to fight surveillance with fashion.

While her license plate shirts and dresses disseminate bad data, other anti-surveillance designers use fashion as a form of obstruction, such as camouflaging makeup or sunglasses that confuse facial recognition systems.

“I really love how people are exploring the different ways to counter surveillance technology and to empower people to do so,” says Electronic Frontier Foundation (EFF) researcher Dave Maass. “But at the end of the day, people should not have to wear a mask or put on face paint or wear, like, complicated t-shirt patterns in order to protect their privacy. Our government should be protecting our privacy.”

Maass and his EFF colleagues successfully lobbied the California legislature to pass a law that, starting in 2020, puts a three-year moratorium on law enforcement’s use of facial recognition technology, including those departments who were experimenting with Clearview AI. It’ll mean that law enforcement agencies in San Diego county will have to stop using a shared facial identification system available to officers in hand-held tablets.

The San Diego Sheriff’s Department “was one of the first agencies that we identified…using mobile biometric technology…face recognition that they could use from the palms of their hands,” says Maass. The data didn’t stay local. According to Maass, San Diego, a border county, regularly shared access with the federal government, including Border Patrol and ICE.

“And we don’t know how those agencies use that technology. We do know they used it, but we’d have no idea what their purposes were,” says Maass.

San Francisco and Oakland have outright banned the use of facial recognition technology by law enforcement. Some technologists think such bans are overreactions.

“Suspending A.I. [artifical intelligence] facial recognition like San Francisco and Oakland…is idiocy to be honest. And lives will be lost,” says Zoltan Istvan, a tech writer and self-described transhumanist who is currently seeking the Libertarian Party’s vice-presidential nomination. Istvan believes that humans should celebrate and embrace the disruptive capabilities of technology to modify the human body and experience. He even implanted an RFID chip in his hand that allows him to unlock his front door.

Facial recognition technology “is going to be very useful to the human race,” says Istvan, “but we just kinda got to get over it being creepy.” 

Istvan envisions authorities using facial recognition and other artificial intelligence–driven surveillance tools to prevent terrorist attacks by recognizing abnormal behaviors or suspicious individuals in crowds. Or to aid the government in fighting human trafficking.

Governments around the world are deploying other biometric surveillance tools as well, such as gait recognition and scanning for elevated body temperatures to isolate feverish individuals in a pandemic.

“Let us look at what [surveillance] can do for overcoming criminality in our cities. Let us look at what it can do for the overall safety,” says Istvan. 

FaceMe is one example of such a security application. The developers originally marketed the software for virtual makeup demonstrations before it evolved into a product serving a wide range of uses, such as logging into apps, entering a secure facility, and identifying intruders. FaceMe’s general manager Richard Carriere says the software has a precision level of up to 99.58 percent, the only non-Chinese or Russian company with such accurate results.

Although the majority of the company’s clients are in the private sector, they have supplied technology to governments around the world. Carriere agrees with Istvan that facial recognition technology could be a giant boon to public safety while having the benefit of decreasing the likelihood of police interactions turning violent.

“If I’m a citizen and cops come to me, I’d be very happy for them to know who I am even before they come to me,” says Carriere. 

Carriere pledges that the company won’t sell its technology to repressive governments or agencies.

“I’d like to believe that we would only associate ourselves with police forces or law enforcement organizations that are respectful of individual rights,” says Carriere. 

But U.S. law enforcement agencies are already showing a lack of accountability in how they use facial recognition technology. The police department in Chula Vista, California, failed to properly report to a federal oversight committee how it was using a facial recognition program, according to a fired whistleblower.

The Chula Vista Police Department declined our interview request.

“Police are very enthusiastic about adopting the technology, but they’re not very enthusiastic about doing the due diligence of recording when this technology has been used, when it has been accessed, auditing the use of the technology, doing all the things that you would need to do to protect people’s data,” says Maass. “They want to collect it all, but they don’t really care about protecting it all.

Maass worries about China’s use of facial recognition surveillance in conjunction with a state-run social credit system, which assigns citizens a numerical score based on their behavior. China has also rolled out increased pandemic-related surveillance that monitors for fevers and flags individuals not wearing protective face masks during an outbreak.

“The thing that we can learn from China is that this surveillance, as it continues to grow, is going to be less and less about public safety and more and more about controlling people,” says Maass. 

But Istvan believes that it’s possible to deploy facial recognition surveillance without emulating China.

“I think the social credit system that China is using is absolutely awful,” says Istvan. “They’re setting such a bad example for the rest of the world that everyone’s turning their back against A.I. facial recognition. There is a good way to use it.”

Istvan believes that, ultimately, our entire conception of privacy will need to be revised.

“I believe in a society that’s totally transparent, a society where sort of everybody can see what everybody is doing,” says Istvan, who advocates a law requiring body cams that constantly record police officers while on duty and surveillance of all political figures when they are acting in an official capacity. “Privacy, I believe, really does steal our liberty away. It’s transparency that’s going to give us all the freedoms we want.”

Maass disagrees.

“I do think conceptions of privacy are changing, but I think they’re strengthening,” says Maass. “Post–Clearview AI…people are concerned and outraged…and people will probably make different decisions on how they control their data online as a result of it.”  

Rose thinks that as the technology becomes more powerful and present, Americans will need to take a page from the protesters in Hong Kong, who have used face masks, encrypted communication, and, most importantly, mass disobedience to resist authoritarian control.

“The…anti-surveillance actions that don’t matter by yourself, when you hit a critical mass of people, matter a lot,” she says, pointing to the ability of Hong Kong protesters to sustain their protest through mass participation and decentralized coordination. “I think that kind of belief in your power, even if you think it might not work 100 percent of the time…you together have this tremendous power.”

Rose’s aim isn’t just to design clothing that thwart today’s systems but to cultivate a community that continually develops new methods to confound the surveillance state as its tools continue evolving.

“It’s a really important opportunity for us to try and get as far ahead as we can before we begin playing catch up again,” says Rose. 

Produced by Zach Weissmueller and Justin Monticello. Opening graphics by Lex Villena. Camera by James Lee Marsh, John Osterhoudt, Weissmueller, and Monticello. Hong Kong camerawork by Edwin Lee.   

Music credits: Songs from the album Paradigm Lost by Kai Engel licensed under a Creative Commons Attribution Non-Commercial Share-Alike 2.0 license. 

Photo credits: “Thermal surveillance,” by Dario Sabljak/agefotostock/Newscom; “Surveillance camera,” Caro/Sorge/Newscom; “Chula Vista facial recognition tablet,” Howard Lipin/TNS/Newscom

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Can Court Distinguish Anti-BDS Laws from Public Accomodations Laws for First Amendment Purposes?

As regular VC readers are aware, there is ongoing litigation in the federal courts regarding whether laws requiring government contractors to sign a form stating that their business does not boycott Israel and people and businesses who do business with Israel violate the contractors’ right to freedom of speech. The basic position of those who think such laws pass constitutional muster is that boycotts are an economic act, and thus are not covered by the First Amendment to begin with. The other side claims that boycotting is a form of freedom of expression, and thus the laws infringe on First Amendment rights. Full disclosure: I believe the former argument is clearly correct under current First Amendment doctrine, and joined an amicus brief in a recent Fifth Circuit case, Amawi saying so.

Putting precedent aside, the biggest practical problem facing those challenging anti-BDS legislation is that boycotts are form of “refusal to deal.” The line between “refusal to deal” and “discrimination” is very difficult to discern. For example, let’s say Joe runs a restaurant. He refuses service to mixed-race couples, in violation of Texas’s antidiscrimination law. Joe defends himself in court by saying, “I am acting within my First Amendment rights by boycotting, i.e., refusing to do business with, mixed-race couples.” On the surface, Joe has an even stronger First Amendment case than those challenging the BDS laws, because he is not doing business with the government, so the government would seem to have less of an interest in how he runs his business.

In the Fifth Circuit Amawi case, a group of law professors signed an amicus brief on behalf of the Knight Center, which I thought was the most persuasive brief on the plaintiff’s side. This brief took a slightly different tack than usual on the free speech issue. Like other opponents of anti-BDS laws, the authors contend that boycotts are inherently expressive and subject to First Amendment protections. The brief, however, added that Texas anti-BDS law was facially unconstitutional because, even though it applied to contractors who boycotted Israel for any reason, its motivation was to targets boycotters motivated by anti-Israel ideology. The law therefore constitutes illicit viewpoint-based discrimination.

By contrast, the motivation for public accommodations law is to increase access to public accommodations for disfavored minority groups and individuals, regardless of the underlying motivation for the exclusion. Put another way, the underlying motivation is the idea that “public accommodations” should be open to the entire public. Even if one grants that part of the underlying motivation for anti-BDS laws is the notion that they are implicitly antisemitic and have a disparate impact on Jewish Americans (who are more likely to have business and other ties to Israel), such laws are still primarily motivated by hostility to the boycotters’ cause and are therefore viewpoint discrimination in a way public accommodations laws, which after all have roots in ancient English law requiring inns and taverns to be open to all, do not.

I don’t buy that reasoning, as I do think that in the modern U.S., a major underlying rationale for public accommodations laws is indeed the hostility to the ideology of those who might exclude, such as the baker who doesn’t want to bake cakes for same-sex weddings.

But let’s assume a judge was persuaded, making anti-BDS laws facially unconstitutional, but public accommodations laws facially okay. What happens when business owner subjected to public accommodations laws make as-applied First Amendment arguments in their defense? Imagine a private school announcing it is boycotting black students who want to integrate the school because they are pro-integration, and defending themselves against an antidiscrimination lawsuit on the grounds that the local public accommodations law is unconstitutional as applied to the school, because it’s engaging in a politically motivated boycott. Given that the Knight brief asserts that boycotts are constitutionally protected activity, why would the public accommodations law not be unconstitutional as applied?

I asked one of the professors who signed the Knight Brief privately why he thinks that the arguments of the brief wouldn’t ultimately be used to successfully support such as-applied challenges. He provided a one-word response, “O’Brien.” United States v. O’Brien (1968) holds that when the government is prosecuting symbolic speech, or combined speech/action, the underlying law must (a) further an important or substantial government interest (b) that is content-neutral; and (c) prohibit no more speech than is essential to further that interest.

The biggest problem with that argument is that the Supreme Court has declined two major opportunities to apply O’Brien to First Amendment challenges to public accommodations law, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston and Boy Scouts of America v. Dale. In each case, the Court was urged to apply the O’Brien test, and, in each case, not a single Justice applied O’Brien.

My conclusion, therefore, is any future free speech challenges to public accommodations law will not involve O’Brien, but will instead stricter traditional First Amendment standards, requiring the government to show a compelling interest and that its law is narrowly-tailored. If challengers to anti-BDS laws persuade courts that refusals to deal/boycotts are protected speech, then public accommodations and other civil rights laws will be vulnerable. Perhaps longstanding laws prohibiting discrimination based on race and sex would survive the compelling interest test. But Hurley and Dale suggest that broader, more controversial state laws will not necessarily survive judicial scrutiny. My guess is that appellate courts, being aware of this dynamic, are unlikely to open the Pandora’s box of ruling that refusing to engage in economic relations is “speech” for First Amendment purposes.

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Working From Home May Be a Permanent Feature of the Post-Pandemic World

Amidst the changes left in the wake of the COVID-19 pandemic, a welcome one might be the likely and long-overdue normalization of telework. We—or at least those of us who are largely desk-bound—were supposed to be able to roll down the hallway from our bedrooms to our jobs years ago. But employers have largely remained resistant to allowing employees to work off-site.

Now—with remote work a necessity for millions of people—the barriers may finally fall. That should expand options for jobseekers to take work without regard for where employers are based, and to settle where they feel comfortable and are free to live as they please.

It’s strange how few of us worked remotely full-time before the pandemic, despite the transformation of communications, music, retail, and finance that we enjoy courtesy of the digital revolution. Only 3.6 percent of Americans worked at-home half-time or more as of 2018, Global Workplace Analytics estimates, based on American Community Survey data. At the same time, 43 percent of employees worked remotely “with some frequency,” indicating untapped opportunities.

Despite the potential, telework has remained a special privilege for many employers, to be doled out only to workers who can sell their bosses on it, or else have the clout to make it happen.

“The ability to work at home appears to be systematically related to authority and status in the workplace. Managerial and professional workers are more likely than others to have the type of tasks and autonomous control of their work schedule necessary to perform work at home,” noted a 2012 article in the U.S. Bureau of Labor Statistics’ Monthly Labor Review.

When it comes to lower-level employees, “executives saw the benefits of using flexible work to their advantage as a negotiating tool for recruitment, promotion, retention and motivation, but they often worried about the costs of training and potential culture change,” Mohja Rhoads and Fynnwin Prager of California State University reported earlier this year after surveying Los Angeles-area workers.

The Monthly Labor Review article cautioned that “the ability of employees to work at home may actually allow employers to raise expectations for work availability during evenings and weekends and foster longer workdays and workweeks.” True—but I ran into problems separating work and home in a traditional office where the top boss had the unfortunate habit of calling employees in the evenings to discuss his brainstorms.

Importantly, many people have spent the last couple of months honing the ability to draw lines between work and the rest of their lives. Social distancing and lockdown orders meant many jobs had to be done from home, or not at all.

“In February, before the economic impact of the coronavirus outbreak truly took hold, 40% of American workers, or 63 million, were employed in occupations that potentially could be performed remotely,” Pew Research finds. Since then, “90% of the decrease in employment—or 2.6 million of the total loss of 2.9 million between February and March—arose from positions that could not be teleworked.”

As lockdown orders expire and the pandemic fades, some jobs will move back to the office. But continuing social distancing expectations will hamper a complete return to normality for many workplaces. Just as important, practical experience with telework will have eroded much of the resistance to implementing it on a regular basis.

“The pandemic is forcing these investments in industries where telework is possible, with more people learning how to use remote technology. As a result, we may see a more permanent shift toward telecommuting,” write Katherine Guyot and Isabel V. Sawhill of The Brookings Institution.

“Our best estimate is that 25-30% of the workforce will be working-from-home multiple days a week by the end of 2021,” predicts Kate Lister, President of Global Workplace Analytics.

That has interesting implications for where people will base themselves in the future. If you can start a business where you want to be while employing people living where they feel comfortable, people no longer have to physically chase jobs and talent and location becomes a matter of preference.

Even before the pandemic, major cities were losing a bit of their draw. The cultural mix and opportunity that had made them attractive places for many people was losing out to expense and incompetent, intrusive government.

“Chicago has been losing people for years now, but Los Angeles and New York City have also found themselves on the decline,” Scott Shackford wrote last year for Reason. “Each of these cities is facing some severe problems in the way they’re managed, their uncertain financial situations, and a general disregard for the welfare and liberty of the citizens who live there.”

One pandemic later, after a lesson in the opportunities for viral transmission provided by high population density and the unpleasantness of urban life in a lockdown situation, cities may be losing even more of their gloss.

“Cooped up and concerned about the post-Covid future, renters and owners are making moves to leave the city, not for short-term stays in weekend houses, as was common when the pandemic first arrived, but more permanently in the suburbs,” reports The New York Times.

The places that will draw workers and businesses will be those that attract them with desirable lifestyle, affordability, and a legal climate that doesn’t treat flexibility as an enemy. That’s bad news for California, where the law commonly called A.B. 5 attempts to force workers into employer/employee relationships while discouraging freelancing.

“The law was hurting workers and businesses before the outbreak of COVID-19, but now its negative impacts are being amplified by the pandemic,” warns Vittorio Nastasi of the Reason Foundation, which publishes this website. “It is limiting job opportunities for workers who have been laid off as a result of the pandemic and government-mandated stay-at-home orders.”

If greater flexibility is a feature of post-pandemic work, inflexible jurisdictions will have a hard time competing.

That’s not to say that a telework-friendly future comes without its problems. In an already divided country, it may lead to more friction.

Debates over stay-at-home orders frequently degenerate into tussles between those relatively unaffected by pandemic-related lockdowns because they can work at home, and those for whom continued employment and the viability of their businesses require their physical presence. That split will linger if telework becomes a better-accepted option but remains possible for less than half the population.

On a similar note, in recent decades, Americans have had “unprecedented choice about where and how they wanted to live” and have moved accordingly, noted Bill Bishop in his 2008 book, The Big Sort.  As it turns out, our preferred lifestyle correlates closely with our politics; “liberals would rather live in cities, while conservatives prefer rural areas and small towns,” as Pew Research puts it. That’s meant people concentrating themselves in like-minded communities, reinforcing each other’s beliefs, and having less personal contact with those who disagree.

An enhanced ability to live where we want, rather than where our employer is based, may lead to more sorting along political lines and less room for agreement. That’s not a big problem if decisions are left to individuals and communities, but it’s a recipe for growing conflict if we continue to concentrate power upwards.

Overall, however, the pandemic will offset a little of the damage done by the virus itself, and by bumbled human responses to the health threat it poses, if it leaves in its wake a more flexible business culture. That will mean more freedom for many of us to work how we wish, and to live in places that make us happy and treat us well.

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Tara Reade Tells Megyn Kelly That Joe Biden ‘Should Not Be Running on Character’

Tara Reade, who has accused Democratic presidential candidate Joe Biden of sexually assaulting her in 1993, spoke with former Fox News host Megyn Kelly in a lengthy interview that appeared on various social media channels Friday.

Reade went over the details of the alleged assault, offered an explanation for why she waited so long to come forward, demanded that Biden withdraw from the race, and criticized Biden’s supporters for mistreating her.

“His campaign is taking this position that they want all women to be able to speak safely,” said Reade. “I have not experienced that.”

Toward the end of the interview, Kelly brought up the sexual assault accusation against Supreme Court Justice Brett Kavanaugh. She asked Reade whether she thought it hypocritical for #MeToo politicians and pundits to deny her the automatic belief that they showed Christine Blasey Ford.

“It makes me upset, it makes me angry because those were people I respected,” said Reade. “I supported Elizabeth Warren, who basically said she believed Joe Biden, and dismissed me.”

It was not a softball interview, though: Kelly asked Reade tough questions about why she had seemed to acquit Biden of wrongdoing when she told The Washington Post last year that the problem was not Biden himself. In the interview, Reade—who was a Biden staffer at the time of the alleged assault—claimed that she had only intended to acquit Biden of responsibility for her firing: She believes this was retaliatory but that Biden likely didn’t even know she was terminated.

Reade gave several explanations for why it look her so long to come forward. She said that Biden’s aides shut her down when she attempted to open up about it in 1993, and that then she felt she had no way to tell the story afterward. Reade claims that she has been trying to tell her story for some time now but met with unwillingness or unfriendliness from the journalists and campaign staffers to whom she reached out.

Kelly also questioned Reade about social media comments she had made that were favorable toward Biden and his record on fighting sexual assault. Reade said those remarks were made in a professional capacity, as an advocate for feminist causes that Biden had purported to support.

Anyone looking for a reason to automatically dismiss Reade must have been disappointed by the interview. She is just as clear, concise, and sympathetic as Ford, whose composure was widely treated by the media as evidence that she must be telling the truth. The reality is that a notable accuser’s eloquence is basically just fodder for cable news punditry: It doesn’t actually elucidate matters.

Reade, like Ford, doesn’t possess any hard evidence. That’s hardly surprising—indeed, it would be surprising if she did have a way to prove her accusation—but it puts the public in a difficult position. Of course, the toughest spot is reserved for everyone who said said we should believe victims no matter the circumstance, a club of slogan-loving idiots that includes Biden himself.

Watch the full interview below.

PANDEMIC UPDATE

Mother’s Day marked a milestone as U.S. officials reported just 793 deaths and 20,693 new cases of COVID-19. Both numbers represent record lows, though coronavirus reporting typically lags over the weekends and the true numbers could be somewhat higher.

Still, several virus hotspots—including New York City—have managed to slow the spread of the disease, and are now in better shape than some other areas of the country, where the number of cases is still rising. Some states have begun to relax their government-ordered lockdowns. While it’s widely expected that this will cause a surge in new cases, it’s too early to tell whether the data will confirm such a suspicion.

Meanwhile, several government officials involved in pandemic response planning—including Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases—are self-quarantining after being exposed to a staffer who has tested positive for the virus.

QUICK HITS

  • COVID-19 claims another victim: D.C.’s Street Sense newspaper.
  • The American Civil Liberties Union is not happy about Education Secretary Betsy DeVos’s move to strengthen civil liberties for college students accused of sexual assault.
  • Additional video footage of jogger and shooting victim Ahmaud Arbery does nothing to change the underlying facts of the case.
  • Elon Musk says he’s breaking up with the state of California.
  • CNN is annoyed that conservatives keep talking about the Michael Flynn story:

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How Supreme Court Doctrine Protects Cops Who Kill (or Otherwise Use Excessive Force)

The doctrine of qualified immunity serves to shield government employees for liability for their actions. Basically, the doctrine holds that a government actor is immune from suit for discretionary actions performed within their official capacity, unless their actions violated “clearly established” law. So, for example, if a police officer is sued for using excessive force on a civilian, qualified immunity will protect them unless it was “clearly established” by prior court decisions (or relevant statutes) that their actions were unlawful or unconstitutional.

Qualified immunity is very difficult for victims of government misconduct to overcome. First, the Supreme Court has made clear that courts are to conduct a very narrow inquiry in determining what is “clearly established.” Basically, if there’s not a case on point in which government officials engaged in precisely the same misconduct, it’s unlikely it will be considered “clearly established” that what the defendants in a subsequent case did is wrong.

Second, the way qualified immunity cases proceed today prevents courts from concluding that conduct was unlawful, so the unlawfulness of much wrongful conduct escapes ever being classified as “clearly established.”

Historically, under Saucier v. Katz, courts conducted a two-part inquiry in qualified immunity cases. First, a court was to look at whether the alleged conduct would make out a violation of a constitutional right. Then, if so, the Court would consider whether that right was clearly established at the time of the defendant’s alleged misconduct.  Under this approach, courts could conclude that what a government official did was wrong, and still find them immune. Importantly, however, such a ruling would put others on notice that those who engage in similar conduct would not receive qualified immunity.

In 2009 the Supreme Court overturned Saucier in Pearson v. Callahan. Under Pearson, a reviewing court can simply answer the second question: Was it “clearly established” at the time of the alleged conduct that the conduct was wrong? By truncating the inquiry in this way, Pearson made things easier for lower courts. Pearson also ensures that the wrongfulness of much wrongful conduct never becomes “clearly established.”

A new investigative report by Reuters suggests that this change has had a significant effect on the rate at which courts find qualified immunity. Between 2005-07 and 2017-19, the percentage of qualified immunity cases won by plaintiffs dropped from 57 percent to 45 percent.

In the decade since [Pearson], the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

I am sure that the shift is due to a range of factors, and I hope that Reuters will make its data available to other researchers who would like to build on and refine their findings. It is important to understand how slight doctrinal shifts affect facts on the ground.

Beyond the doctrinal changes, the Supreme Court has also sent a clear signal to lower courts that it’s more suspicious of rulings denying qualified immunity than those allowing suits to proceed.

 Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court’s acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs’ appeals, the acceptance rate was slightly below the court’s average.

In the cases it accepts, the court nearly always decides in favor of police. The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal.

“You get the impression that the officers are always supposed to win and the plaintiffs are supposed to lose,” University of Chicago law professor William Baude said. In his research, Baude has found that qualified immunity, as a doctrine, enjoys what he calls “privileged status” on the Supreme Court, which extends to cases the court decides without even hearing arguments – a relatively rare occurrence. In such cases, the court disproportionately reversed lower courts’ denials of immunity.

Fortunately, current qualified immunity doctrine is subject to increasing criticism, including from academics across the political spectrum. Perhaps this will encourage the Court to change course.

Justices may think that a strict qualified immunity doctrine protects cops, but this would be mistaken. I would argue that by insulating bad cops from accountability for their actions, qualified immunity actually endangers the vast majority of cops who do not engage in egregious misconduct. Insulating officers from accountability reduces trust of officers across the board. Allowing suits to go forward against the small percentage of cops that truly do wrong would make it easier for more communities to have faith in the important work that police do.

 

 

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