Why SCOTUS Should Tell the Government ‘Get a Warrant’ in Cell Phone Location Data Case

The Fourth Amendment to the U.S. Constitution famously guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Yet in 1979 the U.S. Supreme Court held that law enforcement officials do not need a search warrant to get a suspect’s telephone call records from a phone company. “A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” the Court ruled in Smith v. Maryland.

Otherwise known as the “third-party doctrine,” this legal rule raises profound and troubling questions in the age of the smartphone. Nowadays we share all sorts of personal information with third parties, such as the numbers we dial and text, the URLs we visit, the email addresses we correspond with—even the physical locations from which we access our devices. Does it make any sense to exclude so much meaningful and highly sensitive private information from the “papers” and “effects” entitled to Fourth Amendment protections?

This fall the U.S. Supreme Court will have the opportunity to give the third-party doctrine a second look when it hears oral arguments in the case of Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the historical cellphone call and location records of several suspected armed robbers. Federal agents used those records to identify the cell towers that handled the suspects calls during the time periods in which the robberies occurred. The government then traced back the suspects’ movements and linked their whereabouts to their alleged crimes.

How should the Court approach this case? In an amicus brief filed last week, the Cato Institute, the Competitive Enterprise Institute, the Committee for Justice, and the Reason Foundation (the nonprofit that publishes this website) offer a piece of eminently sound constitutional advice: “This Court should apply the terms of the Fourth Amendment in all Fourth Amendment cases.”

What that means in practice, the brief explains, is that “the government’s compulsory acquisition of data in this case was a seizure. Processing the data to make it human-readable was a search….Thus, it was unreasonable to seize and search the data without a warrant. Lacking exigency or other excuse, the government should have got one.”

“Get a warrant” is the perfect message for the Supreme Court to tell the government in this case.

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Heroin Death Rate Among Teenagers Rises As Heroin Use Falls

A new CDC analysis of drug overdoses among teenagers reinforces a point I make in my column today: Heroin use is much deadlier than it used to be, largely thanks to the war on drugs.

The CDC reports that the rate of heroin-related deaths among 15-to-19-year-olds tripled between 1999 and 2015, rising from 0.3 to 1 per 100,000. Yet during the same period, according to the Monitoring the Future Study, the incidence of heroin use among 10th- and 12th-graders fell by 64 percent and 55 percent, respectively. By 2015 teenagers were much less likely to use heroin and much more likely to die as a result of using heroin.

Several factors may help explain this dramatic divergence between heroin use and heroin deaths:

Mixing. Most heroin-related fatalities—more than nine out of 10, according to data from New York City—involve drug mixtures. When heroin is combined with other depressants, such as alcohol or benzodiazepines (e.g., Xanax and Valium), the risk of lethal respiratory effects is much greater. It is possible that drug mixing became more common or more reckless between 1999 and 2015.

Switching. The increase in nonmedical use of prescription painkillers during the first decade of this century prompted a government crackdown that made those pills more expensive and harder to obtain. Prescriptions for narcotic painkillers peaked in 2010, and by 2014 nonmedical use, as measured by the National Survey on Drug Use and Health, was less common than it had been in 2002. But some of those prescription opioid users switched to heroin, which was cheaper but more dangerous because of its unpredictable potency. The switchers, accustomed to the reliable doses of legally manufactured narcotics, may have been especially vulnerable to that risk.

Adulteration. In recent years adulteration (or replacement) of heroin with much stronger synthetic narcotics, fentanyl and its analogues, has become more common, magnifying the danger posed by inconsistent potency.

All three of these hazards are created or exacerbated by the war on drugs. Prohibition discourages an honest discussion of ways to reduce the harms associated with drug use, such as avoiding mixtures of depressants. The government’s efforts to stop nonmedical use of painkillers drove opioid users to an alternative that is more dangerous precisely because it is illegal. Drug interdiction encourages traffickers to move toward more compact, more potent, and more hazardous products. Any effort to address the “opioid crisis” that does not take into account the harm caused by the war on drugs is apt not only to fail but to backfire.

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Taliban, Russia Want U.S. to Withdraw From Afghanistan

The Taliban released an open letter urging President Trump to end the war in Afghanistan at the same time Russian presidential envoy to Afghanistan Zamir Kabulov suggested that if the U.S. is “unable to do anything serious” in Afghanistan, it should leave.

Oh, boy.

Neither Kabulov nor the un-identified Taliban author are wrong in principle—16 years of war in Afghanistan has produced almost nothing. The U.S. invaded Afghanistan in 2001 to eliminate one of the few safe havens for terrorists in the world. Safe havens have proliferated since then.

But their statements could have the opposite effect, toughening the resolve of forces within the Trump administration who want to extend the Afghan war.

“Despite the fact that the former administration officials created a large coalition to attack our country, your 16 year military presence in Afghanistan has resulted in Afghanistan becoming the most unstable country security wise, the most corrupt administrative wise and the poorest country economically,” the Taliban letter reads.

Most recently, the terror group ISIS entered Afghanistan—a group that did not exist in 2001 and has benefited from U.S.-induced instability in Iraq to metastasize into what it is today. Trump told reporters last month that ISIS was “falling fast” in Afghanistan—he has been relatively skeptical of continued U.S. presence in Afghanistan despite surrounding himself largely with military advisors committed to continuing the conflict.

Kabulov insisted Afghanistan has become a “global incubator of international terrorism.” It’s an odd claim for a country embroiled in Syria, a veritable melting pot of terror groups, and reportedly opposed to the U.S. leaving the Afghanistan war to private contractors.

The U.S. should leave Afghanistan. As I noted last week, neither privatizing nor prosecuting the war in some other way better articulates precisely why the U.S. is in Afghanistan in the first place. This has been missing almost from the beginning. The core of Al-Qaeda was disposed of relatively quickly and the mastermind of 9/11 (the raison d’etre for the Afghanistan war) was killed in 2011 in Pakistan.

Any honest effort to define U.S. security goals in Afghanistan would reveal none worth continuing the war. If Afghan government agencies or mineral companies or anyone else require security, they are free to contract with private companies.

The Taliban and Russian comments raise the question of whether they would actually prefer to see the U.S. continue to waste blood and treasure in Afghanistan. The U.S. presence there is a powerful recruitment tool for the Taliban while weakening the U.S. position as a global power.

Vladimir Putin is not so politically tone-deaf to think his envoy’s opinion that the U.S. has lost in Afghanistan will benefit opponents of the war in the Trump administration. Trump may oppose the war, but he’s been very sensitive about being seen as a Russian puppet. This sensitivity has contributed to a string of stupid mistakes, including the firing of FBI Director James Comey, which led to the appointment of Robert Mueller as a special counsel to investigate the Trump campaign’s alleged Russia connections.

It’s not hard to imagine Trump doubling down in Afghanistan to demonstrate he isn’t following Russia’s lead. And that would be a shame.

Nearly 40 years ago, the Soviet Union invaded Afghanistan. Publicly, President Carter condemned the invasion and called on the Soviet Union to withdraw. Privately, Carter and his advisors were excited about the prospect of a protracted Soviet war in Afghanistan weakening the USSR. Afghanistan, after all, was the graveyard of empires.

Afghanistan may not be a “Soviet Vietnam” on its own, Zbigniew Brzerzinski, Carter’s national security advisor, wrote in a memo, but U.S. support for rebel groups could get it there. Those rebel groups, the mujahedeen, eventually became the Taliban as well as parts of Al-Qaeda.

The Taliban claimed responsibility for the two American troops most recently killed in Afghanistan.

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Charlottesville, Race, and the Mishnory Road: New at Reason

Many of those who would recoil in horror at racist notions find similar notions strangely beguiling when they are dressed up in more genteel language.

A. Barton Hinkle writes:

“To oppose something is to maintain it,” wrote Ursula K. Le Guin in her classic The Left Hand of Darkness, a sci-fi novel that anticipated our gender-bending age by nearly half a century. “To be sure, if you turn your back on Mishnory and walk away from it, you are still on the Mishnory road. To oppose vulgarity is inevitably to be vulgar. You must go somewhere else; you must have another goal; then you walk a different road.”

Those words seem especially apt now, after Charlottesville—because so many of those who oppose the white supremacists have fallen into the same trap as the white supremacists. They have embraced the same fallacy; they are caught in the same harmful patterns of thought.

Before discussing how this might be, a pre-emptive cringe: What follows is not meant to imply any sort of moral equivalence (let alone that of Donald Trump’s awful “many sides” statement on Saturday). The man who pushes a pedestrian into oncoming traffic and the man who pushes a pedestrian out of a speeding car’s way might both be engaged in the act of pushing a pedestrian—but the acts they commit are, morally speaking, vastly different.

So. The white supremacists who caused so much misery in Charlottesville drew anger and contempt from nearly everyone in the country. But much of the anger and contempt was reflexive, and it might help to step back and ask why. What precisely do they espouse that gives such great offense?

Racism, obviously. But what does that entail?

View this article.

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Virginia State Police Say They Didn’t Find Caches of Weapons in Charlottesville

Contradicting statements by Virginia Gov. Terry McAuliffe, the Virginia State Police say they did not find caches of weapons stashed around Charlottesville in advance of last Saturday’s deadly white nationalist rally.

In an interview Monday on the Pod Save the People podcast, hosted by Black Lives Matter activist DeRay Mcesson, McAuliffe claimed the white nationalists who streamed into Charlottesville that weekend hid weapons throughout the town.

“They had battering rams and we had picked up different weapons that they had stashed around the city,” McAuliffe told Mckesson.

McAuliffe’s comments were picked up by other news outlets and spread through social media. But Corinne Geller, a spokesperson for the Virginia State Police, says that no such stashes were found.

“The governor was referring to the briefing provided him in advance of Saturday’s rally and the extra security measures being taken by local and state police,” Geller tells Reason. “As a safety precaution in advance of August 12, such searches were conducted in and around Emancipation and McIntire Parks. No weapons were located as a result of those searches.”

The Virginia State Police also disputed McAuliffe’s claims that Virginia State Police were underequipped to deal with the heavily armed militia members at Saturday’s rally.

“The governor was referencing the weapons and tactical gear the members of various groups attending the rally had on their persons,” Geller says. “I can assure you that the Virginia State Police personnel were equipped with more-than-adequate specialized tactical and protective gear for the purpose of fulfilling their duties to serve and protect those in attendance of the August 12 event in Charlottesville.”

McAuliffe claimed in an interview with The New York Times that law enforcement arrived to find a line of militia members who “had better equipment than our State Police had.” In longer comments that were later edited out of the Times‘ story, McAuliffe said that up to 80 percent of the rally attendees were carrying semi-automatic weapons. “You saw the militia walking down the street, you would have thought they were an army,” he said.

Virginia police have come under criticism for failing to quell violence at the rally, which left one counterprotester dead and more than 30 injured.

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Can You Tell The Difference Between Confederate Leaders and George Washington? Baltimore Officials Can.

In downtown Baltimore—appropriately enough, in the Mount Vernon Place neighborhood—there is a huge monument to George Washington. It’s been there since the 1820s, predating by nearly 30 years the taller, better known Washington Monument that is the centerpiece of the National Mall in Washington, D.C.

On Wednesday morning, Baltimore’s Washington Monument still stands, a proud testament to the man who metaphorically fathered his country and fought for the cause of freedom. Elsewhere in Baltimore, though, statues and monuments to men who fought against that country and that cause are nowhere to be found.

That’s because the Baltimore City Council unanimously passed a resolution earlier this week calling for the immediate removal of the city’s Confederate monuments. Mayor Catherine Pugh signed the resolution and, The Baltimore Sun reports, looked on as city work crews by 5 am today removed four monuments—one for generals Robert E. Lee and Thomas “Stonewall” Jackson, one for “Confederate soldiers and sailors,” and one for “Confederate women.” The fourth was for Supreme Court Chief Justice Roger B. Taney, a Maryland native and author of the majority opinion in the infamous Dred Scott case that determined former slaves could not become U.S. citizens.

“It’s done,” Pugh told the Sun on Wednesday morning. “They needed to come down. My concern is for the safety and security of our people. We moved as quickly as we could.”

And by taking swift, decisive action to remove Confederate monuments while leaving historical markers like the Washington Monument in place, Baltimore offers a primer on the nonsensical slippery slope argument offered by defenders of the Confederate monuments—an argument that President Donald Trump employed during a freewheeling press conference on Tuesday afternoon.

Asked about violence that broke-out in Charlottesville, Virginia, last weekend after a group of white nationalists, neo-Nazis, and Confederate sympathizes gathered to protest the planned removal of a statue honoring Lee, Trump offered that taking down one monument would equate to taking down all monuments.

“So this week, it is Robert E. Lee. I noticed that Stonewall Jackson is coming down,” Trump said. “I wonder, is it George Washington next week? And is it Thomas Jefferson the week after? You know, you really do have to ask yourself, where does it stop?”

It stops….where it stops. No one action determines that any other action must take place. Reasonable people can clearly differentiate between the legacies of men who fought against the United States in order to maintain an economic system built on the institution of human slavery and men honored as founders of the nation, be they flawed men who owned slaves themselves.

Erasing that difference in order to defend the men who led the fight for cecession does a disservice to historical fact and to the ideals championed by Washington and the rest of the founders.

Even within the realm of Confederate monuments, there are degrees of difference. I tend to agree with my colleague Ron Bailey that memorials to Confederate dead or Confederate soldiers should be viewed through a different lens than those to specific Confederate leaders like Lee or Jackson or Jefferson Davis. Even if they died for a wrongful cause, all communties should have a right to mourn their dead and remember the awful cost of war.

Memorials to misguided leaders—many erected for political purposes during the Jim Crow era—are a different matter. In that sense, perhaps Baltimore went too far removing the memorials to the Confederate soldiers and sailors, and to women who helped the Confederate cause.

Still, even as those distinctions were (perhaps erroneously) wiped away, it’s crucial to note that the distinction between Confederate monuments and monuments to slaveholding Founding Fathers remains. Conflating the removal of Confederate monuments with a broader attempt to erase history is inaccurate both philosophically and empirically.

Look no further than Mount Vernon Place in Baltimore. On Tuesday, the monument to Justice Taney shared the square with the monument to Washington (and another to the Marquis de Lafayette, the revolution-era French general). Today, only Washington and Lafayette remain.

Reasonable people can disagree about whether the Confederate monuments should stay in place as way to acknowledge the complicated history and complex individuals they represent.

But it is wrong to argue, as Trump and others have, that monuments to Lee and Jackson exist on the same moral plane as monuments to Washington and Jefferson. They are fundamentally different, and whether you agree with what Baltimore did on Tuesday night or not, the city’s actions demonstrate the difference.

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Reason Foundation Supports Florists, Bakers in Gay Wedding Case Before Supreme Court

gay wedding cakeConsumer goods like floral bouquets and wedding cakes are also acts of expressive artistry protected by the First Amendment. Shops who arrange flowers and bakeries that produce cakes cannot be compelled by law to do so for same-sex weddings if owners have religious objections.

That’s the argument presented in an amicus brief submitted to the Supreme Court this week by the Reason Foundation (the non-profit think tank that produces this site and publishes Reason magazine), the Cato Institute, and the Individual Rights Foundation.

The Supreme Court agreed in June to hear the case of Masterpiece Cakeshop Ltd. Vs Colorado Civil Rights Commission. The case involves a Lakewood, Colorado, bakery whose owner, Jack Phillips, declined to make a wedding cake for a gay couple due to his objections to same-sex marriage. The state ruled Phillips violated the state’s public accommodation laws that prohibit discrimination on the basis of sexual orientation.

Meanwhile, Baronnelle Stutzman, owner of Arlene’s Flowers, in Richland, Washington, has faced similar government sanction for refusing to provide floral arrangements for a same-sex wedding. Stutzman is standing on her religious opposition to same-sex marriage in her petition to the Supreme Court.

The Reason Foundation, the Cato Institute, and the Individual Rights Foundation brief encourages the court to consolidate the Stutzman and Masterpiece Bakeshop cases. Considering the cases together would provide the Court with a more extensive factual record on which to base a decision, as well as help clarify the applicability of the ultimate decision’s holding,” the brief says.

Essentially, they want the Supreme Court to determine whether flower arrangement is also a form of expressive activity and possibly protected free speech. As it stands, the Supreme Court could issue a ruling narrow enough to cover only wedding cakes.

The brief presents two arguments to encourage the court to decide on behalf of the bakery and the florist. First, arranging flowers or baking a wedding cake is artistic expression protected by the First Amendment. The brief argues the court has previously held a fairly broad view of what counts as symbolic speech, and floral arrangements and wedding cakes should be included:

Art is speech, regardless of whether it actually expresses any important ideas—or even any perceptibly coherent idea at all. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston—which upheld the right of parade organizers not to allow a gay-rights group to march because they did not want to endorse the its message—even went so far as to say that the paintsplatter art of Jackson Pollock, atonal music of Arnold Schoenberg, and nonsense words of Lewis Carroll’s Jabberwocky poem are “unquestionably shielded” by the First Amendment.

Second, the brief argues the government is using anti-discrimination laws to compel business owners to participate in same-sex wedding ceremonies, regardless of their religious objections. The lower courts have determined that providing cakes and flower arrangements does not “endorse” same-sex marriage. The brief asks the Supreme Court to reconsider this attitude and argues that these businesses are being ordered to put their stamp of approval on a concept (same-sex marriage) to which they object. The brief uses Wooley v. Maynard, where the Supreme Court previously ordered that New Hampshire couldn’t force citizens to display the state’s motto on their license plate if they objected to the statement “Live Free or Die”:

Surely, no observer would have understood the motto—printed by the government on government-provided and government-mandated license plates—as the driver’s own words or sentiments. Yet the Court nonetheless held for the Maynards. The Court reasoned that a person’s “individual freedom of mind” protects her “First Amendment right to avoid becoming the courier” for the communication of speech that she does not wish to communicate. … People have the “right to decline to foster … concepts” with which they disagree, even when the government is merely requiring them to display a slogan on a state-issued license plate. …

Forcing Barronelle Stutzman and Jack Phillips (the owner of Masterpiece Cakeshop) to use their art to send a message of celebration and approval of same-sex marriages that they sincerely believe to be immoral is, if anything, significantly more invasive of core First Amendment rights than the imposition of a universally issued license plate with a quote hardly anyone could mistake as the driver’s own personal opinions.

Some libertarians may be disappointed that the concept of freedom of association (that business owners should be able to choose whom to serve just as customers choose where to shop) doesn’t get a defense in the brief. The reality is there’s no evidence the Supreme Court will be making a decision that touches on freedom of association at all. The questions the Supreme Court will consider are those the brief addresses: Whether baking a wedding cake is a form of expressive activity and whether requiring bakers to produce these cakes for same-sex couples is a form of compelled speech.

Read the brief below the fold:

SCOTUS Amicus Brief by Scott Shackford on Scribd

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How Backpage and Similar Sites Are Crucial in Fight Against Sex Trafficking

As the Senate considers amending long-established internet law in order to punish Backpage.com for running sex ads, many folks have pointed out that this change could be ruinous for social media and online publishing as a whole. But fewer seem willing to defend Backpage per se, which has been lied about by politicians for so long that many smart and otherwise savvy people seem to think the site is run by sexual-slavery-loving sociopaths. Anyone under that misguided impression—and anyone seeking to push back against it—should check out some new research published in the Wake Forest Law Review.

In the paper, “The Virtue of Unvirtuous Spaces,” Notre Dame Law School lecturer Alex F. Levy explores similarities between the Progressive Era’s pageantry around “white slavery” and the modern-day activists against the alleged “epidemic” of U.S. sex trafficking.

In both cases, people have conflated consensual prostitution among adults with forced prostitution—or “modern slavery,” as current reformers call it, and “white slavery,” as yesteryear Progressives called it— and the sexual exploitation of minors. Activists in both eras have also mistaken prostitution’s increasing visibility to middle-class audiences for an increase in prostitution itself. Conversely, they take the eradication of prostitution from certain highly visible spaces as an absolute victory against exploitation, despite all evidence suggesting the activity will simply migrate elsewhere.

In the late 19th and early 20th century, the focal point of this symbolic fighting was the dance hall. Now it’s online venues such as the classified ad sites Craigslist and Backpage. Levy finds that both campaigns are “pageantry: a kind of theater designed to satisfy people’s need to identify and fight bad guys without regard to nuance or long-term outcome.” And while “removing exploitation from view” may settle some middle-class queasiness, it is “at odds with recovering victims.”

If we really want to make long-term headway against sexual exploitation, we must embrace platforms like Backpage, argues Levy:

A closer and more rigorous inspection reveals that the war on Internet platforms like Craigslist and, more recently, Backpage.com (“Backpage”) is (at best) based on a misunderstanding of their relationship to human trafficking. Even though some traffickers make use of these platforms, there is neither an empirical foundation for the assumption that the platforms cause trafficking, nor any evidence that shuttering them would reduce trafficking. To the contrary, allowing Internet platforms on which sexual services are brokered to thrive may be key to apprehending traffickers and recovering victims.

Both law enforcement and nonprofits such as the National Center for Missing and Exploited Children (NCMEC) routinely use sites like Backpage to search for teenagers reported missing. The cross-country nature of the site allows authorities to track potential victims who may move around a lot, and provides tangible evidence for prosecutors to use against their exploiters. Police also use Backpage extensively when conducting sting operations ostensibly targeting the recovery of minors. Backpage itself has, at least historically, reported suspicious ads (such as those featuring pictures of people who look underage) to NCMEC or local law enforcement.

All of this is used by politicians and professional activists as evidence that Backpage causes sex trafficking, or is especially complicit in it. But that only holds water if, in the absence of the site, there would be no alternative options for exploitation. This simply isn’t true. There are plenty of other websites, apps, and physical spaces that traffickers can access just as easily in order to incite exploitation—spaces that are frequently far less accessible or useful to law enforcement than open online ad platforms are.

Tellingly, these same folks never admit to Backpage’s utility in locating and recovering victims, an asymmetry Levy attributes to “a fundamental misunderstanding about the role of online intermediaries in human trafficking.” She continues:

Internet platforms are, by definition, nothing more than forums—forums for the good and the bad and the vulgar and the humorous. To the extent that they are forums for trafficking, they are also forums for its antidote. Indeed, all they provide is a space in which people become visible. The consequences of visibility are up to users—exploiters, law enforcement, nongovernment organizations (“NGOs”), and concerned citizens, among others.

Like many forums, Internet platforms are generally not legally liable for content created by others. The fantasy that these websites are bad actors—and are thus worthy enemies of antitrafficking advocates—not only distracts from efforts to hold traffickers accountable, but causes an invaluable resource for apprehending traffickers and recovering victims to be squandered.

Later, Levy slams “initiatives to shutter these venues.” Such crusaders, she writes, do not understand “the difference between causing exploitation and revealing exploitation,” and their efforts simply “send trafficking back into the shadows.” The idea “that they cause trafficking is unsubstantiated, and ultimately part of the fantasy articulated, in so many words, by [one popular Progressive Era activist]: that the complex and fearsome array of social changes can be undone by shuttering the places in which they play out.”

But the battle “against trafficking—real trafficking—is won by making victims more visible,” writes Levy, and “to the extent that websites bring abuses to light, their existence is a tremendous help” to the anti-exploitation cause:

While more visibility invites more business, it also increases the possibility that victims will be discovered by law enforcement, or anyone else looking for them. By extension, it also makes it more likely that the trafficker himself will be apprehended: exposure to customers necessarily means exposure to law enforcement.

The tendency to confuse “a problem’s disappearance with its resolution” winds up “doubly dangerous where, as here, visibility actually contributes to the solution.” Ultimately, writes Levy, “the greatest casualties in the war on online intermediaries may well be trafficking victims themselves.”

Read the whole paper in the Wake Forest Law Review. Read more backstory on Backpage here.

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Plenty of Science Shows That Men and Women Are Just Programmed Differently: New at Reason

Google banning talk about the differences between men and women is appalling, though owners can do as they like with their companies.

John Stossel writes:

Why aren’t there more women criminals?! Men in jail outnumber women by a ratio of 14-to-1. We male stutterers outnumber women, too.

This isn’t fair! We need more affirmative action! These disparities must be caused by sex discrimination because everyone knows there are no real differences between genders.

After all, Google fired engineer James Damore for daring to suggest that there is a biological reason men dominate tech leadership.

Google’s CEO said: “To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive.”

Then the media lied about what Damore wrote.

The Washington Post: “women may be genetically unsuited” for tech jobs.

CNN: “women are not biologically fit.”

But Damore never said that.

View this article.

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Donald Trump Unambiguously Condemns…Amazon

President Donald Trump woke up this morning and decided to tweet about how much he dislikes a major American corporation.

This is pretty normal for the president, who has been singling out companies for praise and blame since the earliest days of his presidential campaign. Trump’s unique spin on cronyism typically involves more public bullying than his predecessors, but he’s hardly the first to use the power of the presidency to try to dictate firms’ internal decisions about where to locate factories, whom to hire and fire, how to file tax returns, or what to produce. Sometimes his signature variant of corporate authoritarianism rises to the level of state action, in the form of subsidies, threatened investigations, or withdrawal of government contracts. Sometimes it sticks to the rhetorical realm.

Amazon shareholders seemed worried about the former this morning, though I suspect the stock price will bounce back. (I’m not the first person to only semi-jokingly suggest an investment strategy based around buying the reflexively tanking stocks of the companies bashed by Trump on Twitter and then selling when they recover.)

Today’s entry into the genre of bullying tweets seems to be based on a misunderstanding, however: Amazon hasn’t always broadly collected sales tax, since the law and mechanism for tax collection on internet purchases is still evolving. But since April, the retailer collects taxes in every state where it has a physical presence. A 1992 Supreme Court ruling, Quill Corporation vs. North Dakota, prohibits states from extracting taxes from companies that don’t have a physical location within their borders.

It seems likely that Trump is confused about the facts here, but if he’s not, then perhaps he’s making the same argument that Republicans love to mock when the Democratic counterparts make it: That businesses should pay more tax than they are legally required to by ignoring loopholes or other technicalities, because there’s something shady or un-American about minimizing tax burden. Trump should be wary of making such arguments, since his as-yet-unreleased tax returns almost certainly reveal similar techniques. He also shouldn’t make such arguments because they are simple wrong—paying the amount of tax the law requires and not a penny more is not only legal but morally commendable, especially if you believe your tax money is going to waste or to fund activities that are harmful. Amazon is just the latest scapegoat in a long line of large successful firms that have shifted the way the retail sector functions, including Walmart, Borders Books, and more.

Trump’s tweet is nicely calibrated to play on existing confusion between the economic health of a municipality and the level of tax collection, as well as the relationship between state and local income taxes and job creation. It true: More efficient means of warehousing and distributing goods will mean fewer jobs in the sub-set of the retail sector previously dedicated to warehousing and distributing goods. But that tells us nothing about tax revenues, and even less about the broader economic health of the nation.

Politicians of both parties love to traffic in static thinking about the tax base. Some of those politicians actually believe their own story that if the small businessman on Main Street stops paying sales tax on the stuff he sells to his neighbors in meatspace, the state’s tax base will collapse and no one will have jobs anymore. Others know that the labor market and the sources of tax revenue are more complex and dynamic than that, but play on the public’s ignorance and blurry thinking about these questions.

An alternate explanation: Donald Trump already has a history of vaguely threatening The Washington Post, which is owned by Amazon’s Jeff Bezos. It may well be that this tweet is just a slightly more successfully veiled attempt to discredit his journalistic enemies than his previous direct hits. Stay tuned for a WaPo scoop?

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