Tag: hit&run

It’s rare that U.S. Customs and Border Patrol (CBP) and the American Civil Liberties Union (ACLU) are on the same side. Yet this week, both outfits have criticized a right-wing paramilitary group for detaining immigrants at the southern border.

Over the weekend, video surfaced of the United Constitutional Patriots (UCP), a vigilante group, detaining some 200 migrants, including many women and children, at the border near Sunland Park, New Mexico.

The video sparked criticism from the ACLU and from New Mexico state officials, with both agreeing that private citizens shouldn’t be enforcing the country’s immigration laws.

Democratic Gov. Michelle Lujan Grisham tells The New York Times that it “was unacceptable” that migrant families “might be menaced or threatened in any way, shape or form when they arrive at our border,” adding that “it should go without saying that regular citizens have no authority to arrest or detain anyone.”

“The vigilante members of [United Constitutional Patriots]…are not police or law enforcement and they have no authority under New Mexico or federal law to detain or arrest migrants in the United States,” said the New Mexico ACLU in a letter to state officials. “We cannot allow racist and armed vigilantes to kidnap and detain people seeking asylum.”

CBP was more muted, but also distanced itself from UCP, with an agency spokesperson telling the Times it “does not endorse private groups or organizations taking enforcement matters into their own hands.”

After alleged UCP leader Larry Hopkins was arrested on federal weapons charges Saturday, New Mexico Attorney General Hector Balderas issued a statement saying “today’s arrest by the FBI indicates clearly that the rule of law should be in the hands of trained law enforcement officials, not armed vigilantes.”

Given the unsavory history of Hopkins and the UCP, not to mention the shocking video of the group detaining migrant families, it’s understandable why the ACLU, state officials, and even federal immigration authorities, are not happy to have the group around. What’s less clear is what exactly makes Border Patrol agents any better.

If we are to judge government officials and private citizens by the same standards, there’s not a huge difference between immigration officials detaining peaceful immigrants and private paramilitaries doing the same thing.

And indeed, there’s a very good case for not making a distinction between the actions of private citizens and government agents, according to Jason Brennan, Georgetown University philosophy professor.

As Brennan wrote for Reason in January: “Imagine thugs beat up a drunken trucker, the mafia hacks into people’s computers and phones, or your neighbor throws people in his basement to punish them for smoking pot. Now imagine the same situation, except the perpetrators are government agents acting in their capacity as such: The police beat Rodney King, the National Security Administration hacks your phone and email without a warrant, or the sheriff arrests you for pot possession. Does that change things?”

Brennan’s answer was no, it doesn’t change things at all. He argued that the morality of an action isn’t affected by the person committing it. If it’s wrong for a private citizen to steal, kidnap, or murder, it is just as wrong for a government agent to do those things too, even if that agent is abiding by the letter of the law.

With that principle in mind, it’s hard to see much daylight between the actions of UCP members and those of Border Patrol agents on the southern border.

Surely these agents have “menaced or threatened” migrants in the process of arresting them as they cross into the U.S., the very same thing that Grisham slammed the UCP for doing.

Absent the reference to “vigilantes,” the ACLU’s criticism that armed persons are being allowed to “kidnap and detain people seeking asylum” could just as easily be applied to the Border Patrol agents.

Indeed, the video of UCP members detaining migrants is an excellent example of just how shallow any distinction between the actions of government agents and these vigilantes really is. At the beginning, one armed group (the UCP) is holding huddled migrants against their will. Later, a different armed group (Border Patrol agents) shows up to take the migrants away. If you were one of those migrants, how much of a distinction would you draw between the two groups?

To be sure, Border Patrol agents are supposed to go through an extensive vetting process and months of training before being put into the field, making them far less likely than untrained vigilantes to cause harm to the immigrants they’re detaining.

Yet it is also the case that, despite their ostensible training, a number of Border Patrol agents have engaged in some pretty loathsome behavior, including fatally shooting an unarmed Mexican teenager through a border fence, and allegedly going on a sex worker murdering spree. Not to mention the numerous reports of neglect and abuse reported by detained migrants at CPB facilities.

If detaining non-violent people at gunpoint is wrong, then the ACLU and New Mexico state officials are dead-on in their criticism of the UCP. But the idea that this same behavior is fine when done by government agents is far less convincing.

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When the Supreme Court ruled in Kelo v. City of New London in 2005 to allow local governments to use eminent domain to seize private property and turn it over to private developers, many states and communities—sometimes under pressure from citizens—put into place their own laws and regulations to stop it anyway.

But not, of course, Connecticut, which is where New London and Susette Kelo’s former property can be found. The private development that prompted the property seizures—for the benefit of pharmaceutical company Pfizer—ultimately never even happened. Kelo’s former property is now an empty lot.

Now there’s a legislative push in Connecticut to finally reform the state’s eminent domain laws to prevent another situation like Kelo’s. HB 5123, introduced by Rep. Tami Zawistowski (R-Suffield) would stop the state and its municipalities from using eminent domain to take property that would be used for any project that generates income for a private commercial purpose.

New London wasn’t the only Connecticut city to turn to eminent domain for a private commercial development. The city of West Haven followed in New Haven’s footsteps in 2015 and authorized the use eminent domain to get property so that private developers could build an “upscale outlet mall.”

Attorneys for the Institute for Justice, who represented Kelo in her fight, have also been assisting citizens of West Haven who wanted to resist being forced to sell by the city. In an opinion piece in the Hartford Courant today, Renée Flaherty, an Institute for Justice Attorney who represented West Haven property owners, and Carol Platt Liebau, of the Yankee Institute for Public Policy, call for Connecticut to join most of the rest of the country in putting some restrictions on how eminent domain may be used:

In the wake of Kelo, eminent domain reform spread across the country. Twenty-three states enacted substantive reforms that have almost entirely eliminated eminent domain for private development. Eleven of those states passed constitutional amendments that strictly limit the use of eminent domain to transfer property to private developers. In addition, 10 state high courts have either rejected Kelo or made it more difficult for government to engage in takings for private development. All told, since the Kelo decision, 47 states have strengthened the rights of private property owners in either the statehouse or the court house.

To its shame, Connecticut remains one of only three states that continues to embrace eminent domain abuse. For example, West Haven recently joined New London in embarking on ill-advised deals with private developers. The city of West Haven’s redevelopment plan sought to take land—by eminent domain if necessary—and transfer it to a private developer who could then displace the existing commercial and residential properties with a luxury shopping center.

As in New London, nothing has yet been built in West Haven, though the first phase of the project’s plan was approved last summer. The project has a second phase, and should it actually move forward, the passage of HB 5123 would stop city leaders from forcing additional property owners to sell their homes and businesses so that a private developer can build there.

The bill passed the House’s Planning and Development Committee, 15-6, but does not yet appear to be scheduled for a full House vote.

Reason‘s Damon Root explains here why the Kelo decision is one of the worst Supreme Court rulings of the past 50 years. Little Pink House, the 2017 movie adaptation of the Kelo fight, is available for rent on Amazon Prime for a mere $2.99.

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Over at the Niskanen Center, I have posted some thoughts on volume two of the report by special counsel Robert Mueller. The second volume addresses President Trump’s response to the investigation of Russian interference with the 2016 presidential election and whether any of those actions constituted criminal obstruction of justice. As I told Vox, “If this is what complete and total exoneration looks like, I’d hate to see a damning report.” Quite simply, the president behaved very badly, and his administration seems to have been saved by the willingness of his subordinates to ignore his rants and directives. This look inside the Trump White House is disturbing and should not let anyone rest easy, confident that the office of the presidency is in good hands. Unfortunately, we already knew that.

Once you get past the description of the dysfunctional workplace that is the Trump White House, you find a very interesting set of legal arguments. Mueller’s obstruction investigation faced a variety of serious legal challenges, including whether presidential actions to impede the investigative work of an executive branch officer can constitutionally or statutorily amount to obstruction of justice and what the appropriate role is of a special counsel who can not bring a criminal indictment against the target of his investigation. Mueller’s legal analysis is best read alongside the analysis offered by William Barr when auditioning for the thankless role of Trump attorney general. I’m more sympathetic to Barr’s formalism than Mueller’s functionalism, but these are interesting and difficult issues.

To the disappointment of some, Mueller made the right call to lay out his factual findings and the legal issues as he understood them and let others—the attorney general, Congress, and the voters—decide how best to respond to the results of the special counsel investigation. I think Barr made the right call as well in determining that this presidential misconduct should not give rise to criminal charges. Unfortunately, the president has through his own words and deeds strengthened the hand of his opponents who would like to see him impeached and removed from office. He ignored the first law of holes, and when he found himself in one he just kept digging.

You can read my extended discussion of volume two here.

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Psst…do you want to know the 26 words that, in the opinion of today’s guest on the Reason Podcast, “created the internet?”

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

That’s part of Section 230 of the Communications Decency Act, a federal law that was passed in 1996, as part of a larger piece of legislation updating telecommunications regulations. Section 230 grants broad immunity to websites and internet service providers from legal actions such as being sued for libel and defamation. It’s the reason why Reason can’t be sued for libelous or defamatory content posted in our comments section (though the authors of such comments can be).

Section 230 is the law that has enabled the internet to become driven by user-generated content, from YouTube videos to Yelp reviews to basically all of Twitter. You get rid of Section 230 and all that—and much more—is toast. In its first decade, Section 230 was mostly celebrated for allowing free expression and new economic models, but these days it is under attack from conservative Republicans such as Sens. Ted Cruz and Josh Hawley and from liberal Democrats such as Speaker Nancy Pelosi and Sen. Elizabeth Warren, all of whom have expressed interest in ripping up Section 230 and regulating social media.

Today’s guest Jeff Kosseff is sweating bullets over all this. A former journalist who has been nominated for a Pulitzer Prize, he teaches law and cybersecurity at the United States Naval Academy and is the author of the urgent new book, The Twenty-Six Words That Created the Internet. In a wide-ranging conversation, Kosseff tells Nick Gillespie about the unlikely partnership between a conservative Republican (former Rep. Chris Cox of California) and a liberal Democrat (future Sen. Ron Wyden of Oregon) in the mid-1990s that gave rise to Section 230; why today’s internet is “unimaginable” without it; how the European Union’s approach to online speech is incompatible with America’s; and why we might be witnessing the death not just of Section 230 but of the free speech ethos of the internet and World Wide Web. Kosseff tells Gillespie that he started out writing “a biography” of Section 230 but is now worried that he in fact has written “an obituary” for it.

Audio production by Ian Keyser.

Links related to today’s podcast:

The Twenty-Six Words that Created the Internet, by Jeff Kosseff

Jeff Kosseff’s faculty page at the United States Naval Academy

“Nancy Pelosi Declares a ‘New Era’ of Internet Regulation; E.U. Threatens Same,” by Nick Gillespie

“Mark Zuckerberg Calls for Government Regulation of Political Speech on Facebook,” by Nick Gillespie

“Sen. Josh Hawley Rails Against ‘Big Tech,’ Anti-Conservative Bias, and Section 230,” by Robby Soave

“4 Cases That Show the Scope of Services, Speech, and Conduct Protected by Section 230,” by Elizabeth Nolan Brown

 

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Over at the Niskanen Center, I have posted some thoughts on volume one of the report by special counsel Robert Mueller. The first volume addresses Russian interference in the 2016 presidential election and the extent to which the Trump presidential campaign participated in that interference. The good news is that the campaign did not actively conspire with Russian operatives to influence the election and that the Russian efforts at interference were not terribly effective. The bad news is that Russian operatives clearly did try to influence the election and that the Trump campaign was at best unconcerned about Russian meddling and at worst would have been happy to encourage and benefit from it. You can read the whole thing here.

From the conclusion of the Niskanen Center post:

One need not deny the reality or legitimacy of Trump’s electoral victory to recognize that the Russian threat should be addressed. The significance of the findings in volume one of the Mueller report should not be a partisan issue. Though the report might support the conclusion of “no collusion,” it thoroughly undermines the president’s own favored narrative that American intelligence agencies were worried over nothing in 2016. Both Russia and the Trump campaign created plenty of reasons for national security professionals to worry and to see the need for a more thorough investigation. That only one of Trump’s campaign managers found himself imprisoned in the aftermath of the election or that Donald Trump’s son-in-law thought it was a “waste of time” when a meeting failed to deliver the promised incriminating Russian government files is no cause for celebration.

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Despite what the MAGA memes and lefty conspiracy theories might suggest, President Donald Trump is not a particularly muscular chief executive. He’s not an omnipotent, swaggering presence bending the country to his will—no matter how many times he points out that, yes, he won the election.

There are many things to be gleaned from the 448-page report released last week by Special Prosecutor Robert Mueller (my colleagues have noted many of the most important details already), but one of the most under-appreciated might be just how weak Trump appears to be, even within his own administration. In incident after incident in the Mueller report, Trump’s underlings and subordinates ignore or contradict his direct orders—and may have saved the president from committing serious crimes in the process.

“The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” the report states.

Consider two telling examples from the Mueller report. When Trump was trying to get then-Attorney General Jeff Sessions to un-recuse himself from the Russia investigation, Trump called Cory Lewandowski—a private citizen, not a member of the administration—into the Oval Office and dictated a message to be delivered to Sessions. Lewandowski, apparently unwilling to deliver the message directly to Sessions, set up a meeting with another White House official, Rick Dearborn, and asked him to pass the message along to Sessions instead.

“The message ‘definitely raised an eyebrow’ for Dearborn, and he recalled not wanting to ask where it came from or think further about doing anything with it,” according to the Mueller report. “Dearborn also said that being asked to serve as a messenger to Sessions made him uncomfortable. He recalled later telling Lewandowski that he had handled the situation, but he did not actually follow through with delivering the message to Sessions.”

Or consider what happened in June 2017, when Trump reportedly sought to fire Mueller. Rather than calling Assistant Attorney General Rod Rosenstein with the order to terminate the investigation, Trump called then-White House Counsel Don McGahn at his home and insisted that McGahn tell Rosenstein to fire Mueller.

“McGahn was perturbed by the call and did not intend to act on the request,” the Mueller report states. “To end the conversation with the President, McGahn left the President with the impression that McGahn would call Rosenstein. McGahn recalled that he had already said no to the President’s request and he was worn down, so he just wanted to get off the phone.”

Instead of following the order, McGahn drafted a letter of resignation.

There are other incidents in the Mueller report that follow the same basic outline. They give the impression of a president who is weak both personally and professionally—unable to summon the testicular fortitude to directly confront his own attorney general, for example, while also being routinely ignored by those lower down on the chain of command. That conclusion can be drawn not only from the Mueller report but from other accounts of the inner workings of the administration—including an incident documented in Bob Woodward’s book, Fear, in which Gary Cohn, economic adviser to the White House, literally stole a letter off of Trump’s desk to prevent the president from signing it and thereby terminating a U.S.-South Korea trade deal.

This is not a new observation. Conservative New York Times columnist Ross Douthat has called Trump “extraordinarily weak” and has authored multiple columns detailing the president’s inability to assert himself “against restraints imposed by his allies or advisers.” Reason’s Jesse Walker has highlighted how federal institutions have constrained Trump in some ways even as they have been empowered by him in others. “Power isn’t flowing to the executive so much as it’s flowing to whole swaths of the executive branch,” Walker wrote in the Los Angeles Times last year.

But the release of the Mueller report freshly underlines the extent to which the Trump administration functions despite the president, not because of him.

Libertarians and others who are concerned about the power of the executive branch might consider all of this a point in Trump’s favor. After all, wouldn’t we prefer a president who is little more than a leader in name only?

But it’s important not to conflate a weak president, like Trump, with a weakened presidency. Indeed, it’s quite clear that the presidency has lost none of its robust, liberty-threatening powers under Trump. On trade, immigration, the ongoing wars in Syria and Yemen, and plenty of other policy areas, the Trump administration has been as powerful as any other in recent history.

“When we consider how many of this president’s abuses, attempted or accomplished, were based on powers his predecessors had already seized, we should consider ourselves lucky things haven’t gone worse,” writes Gene Healy in the May issue of Reason.

The sunny view is that Trump’s aides have somehow discerned the best outcome for the country and are selectively obeying or disobeying the president as a means of steering executive power towards that result.

The most realistic take is that the executive branch of the United States government—the mightiest branch of the most awesomely powerful state in world history—is increasingly run by unelected, unaccountable individuals. Even without considering the implications of what that would mean in the event of a major international crisis, this is a potentially problematic arrangement. It also raises worrying questions in the long run. After Trump is gone, will the executive branch continue to operate in this way? Could a stronger leader with fewer subordinates willing to openly defy his commands do more damage?

Preventing that requires weakening not the president but the presidency. That, in turn, would mean returning to Congress the power to make war and set trade policy. It would mean shutting down swaths of executive branch agencies and returning their regulatory functions to the states.

Getting there would require a determined effort by a committed executive with an electoral mandate and a clear-eyed vision about the appropriate role for his or her office. It would require a president whose strength rested on personal humility and an understanding of the principles that underpin the American government. Trump is not that person, as he demonstrates on an almost daily basis.

And, indeed, one of the primary benefits of a weaker presidency would be that the personal character and political strength of the president would not matter as much.

That the institutions and individuals within the executive branch have corralled some of Trump’s worst impulses is, for now, a small comfort. His personal and professional weaknesses may eventually render Trump little more than a figurehead within his own administration—but the office of the president will survive Trump’s tenure and will remain as potent as ever.

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Illegal Pete’s is a Colorado-based Mexican restaurant chain; starting several years ago, the name has drawn controversy because some view it as an insulting reference to illegal aliens. (The restaurant owners disagree, and say the name was chosen “to convey the unique, countercultural atmosphere [the founder] wanted to foster” and was an homage to the founder’s father, who was “a bit of a good-natured hell-raiser.”)

The owners of Illegal Pete’s wanted to make it a Delaware limited liability company, but the Delaware Secretary of State’s office rejected the application, allegedly on the grounds that the name “has a negative connotation,” and that

Title 8 [of the Delaware Code] permits this office to reject a filing if the use of a corporate name by a corporation “might cause harm to the interests of the public or the State as determined by the Division of Corporations in the Department of State”. As it stands, the document will be rejected unless a modification is made to the name of the corporation in the certificate of conversation [sic] and in its certificate of incorporation.

Yesterday, Illegal Pete’s sued the Secretary of State, arguing that the denial was unjustified by statute—which on its face applies only to names containing the word “bank”—and violates the Due Process Clause and the First Amendment.

And indeed, given the Supreme Court’s decision in the Slants case (Matal v. Tam), the denial does violate the First Amendment. Matal holds that the government can’t deny trademark registration to allegedly racially offensive marks. It follows that the government likewise can’t deny certificates of incorporation (or LLC status) to business names that allegedly offensively refer to illegal aliens (or, for that matter, to marks that seem to praise illegal conduct, if that’s the Secretary of State’s objection).

The case reminds me of Kalman v. Cortes (E.D. Pa. 2010), which struck down a Pennsylvania ban on corporate names that contain “[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name” (applied in that case to the name “I Choose Hell Productions”). But following Matal, the matter is even clearer.

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My frequent co-author (and now co-blogger) Steve Sachs and I have a new article out in the Northwestern Law Review, in a symposium issue devoted to “Originalism 3.0.” Our contribution, “Grounding Originalism,” tries to provide philosophical grounding for our approach to originalism, one which emphasizes that originalism is a theory of law, under which our law is the Founders’ law, plus all lawful changes enacted since then.

The piece responds in part to criticisms raised by Richard Primus, Mark Greenberg, Mikołaj Barczentewicz, and Charles Barzun, among others (and Eric Segall is publishing a response here). Here is the abstract of our piece:

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.

Because this piece is the latest in a line of five or six pieces that Steve and/or I have written advancing this theory, it doesn’t provide all of the arguments or evidence for our view. But we do provide (p. 1491) what I hope is a helpful summary of how past and present law relate:

• As a theoretical matter, positivists like us figure out today’s law based on today’s social facts.
• As a contingent, empirical matter, today’s social facts happen to incorporate the Founders’ law by reference.
• As a historical, legal matter, the Founders’ law allowed for various kinds of changes, including both formal enactments and the incorporation by reference of various kinds of customary law

As well as (p. 1477-78) another hopefully helpful summary of the evidence we’ve amassed in previous pieces that we think supports our view:

1. We treat the Constitution as a legal text, originally enacted in the late eighteenth century.
2. This constitutional text regulates the selection of legal officials, even when such regulations are unpopular or contrary to tradition.
3. Actors in our legal system don’t acknowledge, and indeed reject, any official legal breaks or discontinuities from the Founding.
4. We rely on technical domesticating doctrines, themselves rooted in preexisting law, to blunt the practical force of novel originalist arguments.
5. Original meaning sometimes explicitly prevails over policy arguments in constitutional adjudication, but the reverse doesn’t seem to be true.
6. Our treatment of precedent makes sense if original sources determine the Constitution’s content but not if precedent does.
7. More generally, there are no clear repudiations of originalism as our law in the current canon of Supreme Court cases, even in situations where the Justices must have been sorely tempted.

As always, if this provokes further productive criticisms or a counter-argument about theory better describes our law, we’d love to see it! Meanwhile, Steve and I are at work on two more pieces aimed at more specialist literatures, one in history and one in philosophy, which I’ll look forward to sharing here later this year.

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It has been more than 10 years since China’s health ministry officially recognized “Internet Addiction Disorder” as a disease. And although the evidence for such a designation remains far from solid, the consequences of that designation have been startlingly clear.

The Chinese government has, among other things, restricted new internet cafes from opening, requiring them to be closed during certain times of the day, and limiting time adolescents may spend at internet cafes. Meanwhile, a network of boot camps, many of which are government run, have sprung up across the country in which many of the government-estimated 23 million young “internet addicts” are enrolled to receive treatment for what has been dubbed “electronic heroin.” These facilities employ military-style discipline and often brutal corporal punishment. In 2017, BBC News reported the death of an 18-year-old registered in one of those camps, sparking Chinese newspaper editorials calling for tighter regulation of these centers.

China’s experience is a warning about the perils of medicalizing heavy internet use. Yet other countries are following its lead by recognizing social media or internet addiction as a behavioral disorder, often in conjunction with public funding for counseling and addiction treatment centers. Japan’s Ministry of Health, for example, pays for “internet fasting camps” in which young addicts receive help in a tech-free environment. And in 2011, despite objections from parents that it infringes on their autonomy, South Korea placed a curfew on teen internet gaming, blocking gaming sites after midnight for people ages 16 and younger.

Fear of the internet’s addictive potential isn’t confined to Asian countries. The year China made its designation official, an editorial by a leading U.S. psychiatrist appeared in the American Journal of Psychiatry applauding the decision. Since then, an internet addiction rehab industry has sprung up in the States. And a growing number of media reports in the West have stoked concerns about a looming crisis of social media addiction, sometimes loosely coined “internet addiction.”

Lawmakers in Washington, meanwhile, have begun to express similar concerns. Last September, during a Senate Select Committee on Intelligence hearing on “Foreign Influence Operations’ Use of Social Media,” Sen. Richard Burr (R–N.C.), Sen. Mark Warner (D–Va.), and others raised the subject of “social media addiction.” They were worried that media users, compelled by their addiction to face repeated exposure to propaganda and misinformation, might be increasingly vulnerable to manipulation. Several senators asked both witnesses what steps they were taking to combat “social media addiction.”

Yet despite the growing public panic, the underlying science is far from settled. Researchers have not yet approached a consensus as to whether perceived excessive time spent on the internet and engaged with social media is an addictive behavioral disorder. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) does not designate “internet addiction” or “social media addiction” as a mental disorder, but rather a “condition for further study,” which is notable in light of economic incentives for the psychiatry profession to medicalize problem behaviors.

Given the widespread fearmongering, and the growing chorus of criticism from both the left and right against social media, it’s all too easy to imagine this issue gaining traction with politicians and medical policymakers. As with other issues driven by sensational media reports, there’s a real risk that lawmakers and medical professionals will rush to implement policies that aren’t supported by the evidence. Those sorts of policies can result in unintended social harms, not the least of which are potential infringements on freedom of the press, freedom of expression, and freedom of association—especially if social media platform providers are demonized as purveyors of addictive, and thus dangerous, content. Classifying heavy internet use as medical addiction isn’t just a risk to patients and public health budgets, but to the foundations of free speech and a free society.

Addiction Defined

People talk colloquially about being “addicted” to things—from take-out pizza to TV shows—all the time. But the common understanding of addiction is only loosely related to the clinical definition, which is something far more powerful than a strong preference.

The American Society of Addiction Medicine describes addiction as a “chronic disease of brain reward, motivation, memory and related circuitry … characterized by the inability to consistently abstain, impairment in behavioral control, craving” that continues despite resulting destruction of relationships, economic conditions, and health.

A major feature of clinical addiction is compulsiveness. That is why alcoholics or other drug addicts will return to their substance of abuse even after they have been “detoxed” and despite the fact that they know it will further damage their lives.

So far, the evidence that this sort of clinical compulsion exists for internet usage simply isn’t there. In 2009, a team of researchers from Kwangwoon University in South Korea, the University of New Haven, Purdue, Notre Dame, and Auburn Universities analyzed 61 empirical studies on internet addiction published in peer-reviewed journals from 1996 to 2006. They found the studies used “inconsistent criteria to define internet addicts, applied recruiting methods that may cause serious sampling bias, and examined data using primarily exploratory rather than confirmatory data analysis techniques to investigate the degree of association rather than causal relationships among variables.”

A 2011 review of the empirical literature by Daria Kuss and Mark Griffiths at Nottingham Trent University did find that heavy internet use met many criteria for addiction,” such as neglect of personal life, mental preoccupation, escapism, mood modifying experiences, tolerance and concealing the addictive behavior, appear to be present in some people who use networks extensively.” However, their study only was only able to identify 43 empirical studies, many of which included small samples with teenagers and university students as participants, “severely limiting the generalizability of findings.” Their analysis noted the need for studies with larger samples that are representative of a broader population, and they cited the absence of studies “to assess the phenomenon from a biological perspective”—the neurochemical, rather than behavioral and mental effects. The authors also criticized the existing literature for using too few criteria for assessing addiction, and concluded that “the latent health consequences of excessive and addictive use are yet to be explored using the most rigorous scientific methods.”

Some research has found a correlation between social media use and depression in adolescent girls, but not boys. But it’s extremely small. In 2017, Jean Twenge of San Diego State University calculated that social media exposure could explain 0.36 percent of the covariance for depressive symptoms in adolescent girls. This means that 99.64 percent of the girls’ depressive symptoms did not correlate with social media use.

Part of the problem is definitional. In a 2017 follow-up to their original paper, Kuss and Griffiths noted methodological limitations of research into the matter persisted, including matters pertaining to inconsistent usage of terminology. For example, the authors pointed out, “Social networking and social media use have often been used interchangeably in the scientific literature. However, they are not the same.”

Eventually, researchers might conclude that social media addiction is indeed a mental disorder, but they aren’t there yet. If (or when) that occurs, it is likely the diagnostic criteria will be detailed and nuanced, covering a narrow segment of the population—and not suggesting anything resembling an epidemic.

Why It Matters

Whether social media addiction exists—and how pervasive it may be—does not just have implications for government intrusions on personal autonomy and control over behavioral choices in the purported interest of “public health.” There are also major ramifications for public policy.

Right now, health insurance does not cover the expenses of programs designed to help people with problematic use of the internet or social media. If social media addiction attains official status as a disease, legislation or regulations may mandate health plans to cover rehabilitation for this condition along with substance abuse disorders. This could increase the cost of health insurance, and drive up public spending on programs like Medicaid and Medicare.

Following the lead of other countries where internet addiction has been declared an illness, lawmakers might be motivated to grant funding for the proliferation and expansion of social media treatment programs. The burgeoning new industry could become yet another special interest in search of a steady stream of government funds.

But there can be even more disturbing repercussions if social media addiction is dubbed a mental disorder. A political consensus that social media addiction poses a potential public health “crisis” can cause collateral damage to freedom of speech, freedom of the press, and freedom of association.

The influence of the so-called “legacy media” has waned since the advent of the internet and social media platforms. Their traditional role as information gatekeepers has fallen victim to creative destruction as social media platforms provide outlets for news, information, and opinion content that might not otherwise attain public exposure.

As an example of privilege-seeking through government action, media companies in the U.K. are urging the government to intervene to “counteract all potential online harms, many of which are exacerbated by social media.” Politicians have their own incentives to control internet and social media content. They purportedly seek to “protect the integrity of the democratic process” yet are also concerned that their political positions are presented in what they consider a proper light, free from misrepresentation, and that their views are given equal and balanced exposure to those of the opposition. Members of the Senate Intelligence Committee are having their staffs work on proposals to regulate social media platforms.

As government becomes more enmeshed in internet and social media activity, threats to freedom of speech, freedom of the press, and freedom of association become increasingly real.

Some governments already access social media data to affect social conditioning. In Berlin, German police recently raided the homes of 36 people accused of “hateful postings” on social media. German law prohibits a range of postings with punishments of up to five years in prison for inciting racial hatred. The experience in China, where internet access is already controlled by the state, shows what happens when heavy use of online services is given a medical designation.

In America, fortunately, the Constitution stands in the way of many laws like those enacted in other countries that enmesh the government in social media operations. So do American sensibilities. The general public is not supportive of such interventions—at least not yet. Those cultural sensibilities might be changing as younger people appear more open to limitations on speech deemed “hateful.” Fear over the “scourge” of social media addiction could tip the scales even further.

It is no exaggeration to warn that the anxieties over social media addiction might reach the level of today’s “opioid epidemic” panic. Social media platforms like Twitter and Facebook might be demonized as purveyors of addictive content, making them as unsympathetic as the opioid pharmaceutical companies or “Big Tobacco.” The names “Zuckerberg” and “Dorsey” could join the name “Sackler” on the list of the shunned. Public attitudes are affected by fear, and resistance to government intrusion into internet activity and content can erode.

Addiction is seen as a disease that prevents individual choice about using the internet (or alcohol, or other drugs). When a policy is framed as the individual having no choice, policy oversight of that activity becomes more publicly acceptable.

And yet, when it comes to internet use and social media, it’s clear that people do have a choice. A 2018 Pew survey found the majority of users stated it would not be difficult to give up visiting social media sites (although 51 percent of those under age 24 stated it would be difficult). Forty-two percent of Facebook users surveyed said they have taken a break from the platform for several weeks or more, and 26 percent have deleted the Facebook cell phone app altogether.

Today, much of the conversation regarding internet and social media activity takes place in the public square, in the lay media and on pop culture platforms. There are no policy proposals beyond the level of conjecture. There is still time to prevent the public discourse from evolving into a public panic.

Journalists, commentators, and lawmakers must be more accurate and precise with their terminology. They must resist the temptation to confer legitimacy on an unproven “addiction,” and they should be called out when they do so. This is not nitpicking. And it is more than healthy skepticism. Many of our freedoms are at risk.

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[I’m continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.]

I’ve argued that criminal contempt prosecutions for violating anti-libel injunctions are similar to criminal libel prosecutions. But they are missing one important feature of most prosecutions—the normal prosecutor.

In criminal libel prosecutions, a prosecutor exercises discretion about whether to prosecute. In criminal contempt proceedings, a judge would normally refer the case to the prosecutor’s office, but if that office declines to act, the judge may appoint a special prosecutor. And in some states, the litigants could initiate the criminal contempt prosecution them­selves, or move for contempt and ask for the court to appoint their lawyers as the prosecutors. [In the federal system, the judge may not appoint the plaintiff’s lawyer as prosecutor, Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787 (1987), which may make it hard to find a lawyer willing to take the task. But that is a principle of federal contempt procedure, not a constitutional mandate.]

Indeed, in states that still have criminal libel laws, the injunction’s cutting out of the prosecutor is especially vivid. Why, after all, would a person who is being libeled seek an anti-libel injunction in that state? Why not just ask the prosecutor to threaten the defendant with a criminal libel prosecution? After all, an injunction only works because the target is worried about the threat of a criminal contempt prosecution; why wouldn’t a prosecutor’s threat of a criminal libel prosecution work as well?

Presumably the defamed person would opt for spending the time and money to get an injunction precisely because the prosecutor is not inclined to act. Maybe prosecuting libels is a low prosecutorial priority, compared to violent crimes, property crimes, or drug crimes. Or maybe the prosecutor thinks the criminal libel law is archaic, and that people shouldn’t be jailed merely for lying about people. Or maybe the prosecutor wants to prosecute only the most egregious libels (such as the ones that most threaten reputation), and this libel isn’t one. The prosecutor is thus using prosecutorial discretion to choose not to prosecute a particular kind of crime. And the injunction bypasses that prosecutorial decision.

The question for judges, then, is whether they see prosecutorial discretion as an advantage or a disadvantage in such cases.

Prosecutorial discretion is sometimes touted as an important protector for liberty: Before a person goes to jail for something, the theory goes, all three branches must agree—the legislature must criminalize the action, the executive must prosecute, and the judiciary must convict. In the words of then-Judge Kavanaugh,

The Executive’s broad prosecutorial discretion … illustrate[s] a key point of the Constitution’s separation of powers. One of the greatest unilateral powers a President possesses … is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior … . The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty.

Judge Kavanaugh was speaking of prosecutorial discretion as a check on the legislative power, but it could equally be seen as a check on the judicial power. Indeed, such a check may be especially necessary to rein in criminal contempt prosecutions, in which judges might be unduly skewed by the sense that the violation of an injunction is a personal affront to their own authority. Justice Scalia’s concurrence in Young v. United States ex rel. Vuitton et Fils SA, for instance, argued that federal contempt prosecutions must always be initiated by the Executive Branch, partly because Justice Scalia saw a threat to liberty in “judges’ in effect making the laws, prosecuting their violation, and sitting in judgment of those prosecutions.”

On the other hand, prosecutorial discretion is sometimes seen as unduly favoring those victims who have the prosecutors’ ear—indeed, one criticism of criminal libel laws has been that they are disproportionately used to punish speech critical of political officials and law enforcement. And people sometimes fault prosecutors for being not attentive enough to particular crimes that are seen as too hard (or too unglamorous) to prosecute; that, for instance, was part of the criticism of prosecutors in domestic violence cases, which led many states to enact statutes specifically authorizing injunctions against continued domestic violence.

More broadly, injunctions are available in many other contexts where torts are also crimes. The occasional assertion that “equity will not enjoin the commission of a crime” means simply that equity “would not enjoin violation of … criminal law as such,” but would only enjoin acts that harmed the particular plaintiff in some legally cognizable way. Injunctions against trespass are issued without concern that this will undermine prosecutorial discretion not to prosecute trespasses as crimes; likewise with injunctions against copyright infringement, even though willful copyright infringement for commercial gain is also criminal.

And perhaps the availability of criminal contempt proceedings in such cases, even without the opportunity for prosecutorial discretion, might be especially justified by the need to vindicate a particular victim’s interest. The Third Circuit, for instance, has taken the view—expressed, to be sure, as to administrative enforcement proceedings rater than as to criminal contempt of court prosecutions—that “the doctrine of prosecutorial discretion[] should be limited to those civil cases which, like criminal prosecutions, involve the vindication of societal or governmental interest, rather than the protection of individual rights.”

I don’t think that the availability of prosecutorial discretion should be seen as a necessary First Amendment protection that renders invalid injunctions that cut out such discretion. Indeed, prosecutorial discretion may introduce an extra risk of viewpoint discrimination, and enforcement of injunctions without a prosecutorial veto would decrease this risk.

Judges in injunction cases often write opinions explaining why they exercise their discretion a particular way, which constrains their discretion in some measure; prosecutors don’t. Judges’ decisions not to issue injunctions are reviewable on appeal (even if under the relatively deferential abuse-of-discretion standard); prosecutors’ decisions not to prosecute are generally not reviewable. Prosecutorial discretion cannot save an overbroad law. The absence of prosecutorial discretion should not invalidate a narrowly crafted injunction.

This having been said, though, courts might still choose to consider whether separation of powers concerns should counsel against injunctions that evade prosecutorial discretion, especially in those states where criminal libel statutes exist. The Court has spoken of its “cautious approach to equitable powers,” especially when the powers involve “substantial expansion of past practice”; state courts may choose to take a similar approach. Such caution may be reason to avoid an end-run around prosecutorial judgment, especially with a remedy that has historically been frowned on—which makes anti-libel injunctions different from, for instance, anti-trespass injunctions—and in the absence of specific legislative authorization (which makes anti-libel injunctions different from, say, anti-harassment or anti-stalking injunctions issued pursuant to a specific statute).

[You might also read my earlier posts on the subject,

• Anti-Libel Injunctions and the Criminal Libel Connection
• The First Amendment and Criminal Libel Law
• The First Amendment and the Catchall Permanent Injunction
• The First Amendment and the Specific Preliminary Injunction
• How Specific Anti-Libel Injunctions Underprotect Speech
• The First Amendment and the Hybrid Permanent Injunction
• Restricting Injunctions to Libels on Matters of Private Concern?
• The Limited Role of Mens Rea in Hybrid Anti-Libel Injunctions
• The First Amendment and the Hybrid Preliminary Injunction

Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]

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