Che Guevara, Donald Trump, Public Citizen (Founded by Ralph Nader), and Copyright Law

From Paul Alan Levy of Public Citizen (Consumer Law & Policy Blog):

The personal and commercial heirs of the deceased photographer Korda, best known for the iconic photograph of Che Guevara that has adorned Tshirts and posters displayed by young admirers for fifty years, have issued a takedown demand to Liberty Maniacs over its sales of parody items that display the photo’s cap and hair but replace Guevara’s visage with, alternately, Donald Trump and Alexandria Ocasio-Cortez. Advancing claims both under the doctrine of moral rights and under copyright law, Randy Yaloz, a New York lawyer based in Paris who proudly identifies himself as “combative” (but wrote using an letterhead identifying himself as an adjunct professor at his alma mater, New York Law School, where he does not currently teach), demands both that the parodies be taken off the market and that the parodist pay damages.

Trump Che

In a response letter sent this morning, we have explained that moral rights are not enforceable in the United States, that the First Amendment protects the right of parody, and that any copyright claims would be defeated by fair use. The lawyer has not answered my question about whether he is trying to stop the production of Tshirts that carry the Korda photo adoringly (albeit without license fee), or if copyright law is just an excuse to suppress critical uses of the photo, in which case Liberty Maniac (whose parodies I have been pleased to protect against campaign committees for Hillary Clinton and Bernie Sanders, as well as the NSA and TSA), could have a claim for copyright misuse.

Paul’s letter is a characteristically readable and professional-yet-pugnacious; an excerpt from the concluding paragraph:

(I should note, for the sake of precision, that Ralph Nader hasn’t been officially involved with Public Citizen since 1980; but the juxtaposition of him, Guevara, and Trump was too much to resist. I should also note that this post was blogged using the highest cord in the land, here at the U.S. Supreme Court library.)

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Here Are the Problems With the Attorney General’s Plan To Expand Background Checks for Gun Buyers

Attorney General William Barr is reportedly floating a proposal to expand background checks for gun buyers that is similar to an unsuccessful 2013 bill sponsored by Sens. Joe Manchin (D–W.Va.) and Patrick Toomey (R–Pa.). The proposal would require background checks for “all advertised commercial sales, including gun sales at gun shows.”

Manchin and Toomey’s Public Safety and Second Amendment Protection Act would have required that federally licensed firearm dealers, who are already required to conduct background checks, be involved in all sales at gun shows and all transfers resulting from online or print ads. It explicitly exempted transfers “between spouses,
between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins.”

Barr’s proposal would do pretty much the same thing, but it also would authorize licenses for “transfer agents” to help gun owners comply with the background check requirement. The idea, presumably, is that the new category of licensees would make compliance easier by providing an alternative to firearm dealers.

This proposal is less sweeping than the Bipartisan Background Checks Act of 2019, which the House of Representatives approved last February. That bill, which was supported by 232 Democrats but only eight Republicans, would ban almost all gun transfers by people who are not licensed dealers. It applies to any sale, whether or not it happens at a gun show and whether or not the firearm was advertised.

The House bill makes an exception for “a transfer that is a loan or bona fide gift between spouses, between domestic partners, between parents and their children, including step-parents and their step-children, between siblings, between aunts or uncles and their nieces or nephews, or between grandparents and their grandchildren.” If money changes hands, in other words, a background check would be required even for transfers between relatives.

Both proposals share the same problems as any other effort to expand the reach of background checks. First, the categories of prohibited buyers are irrationally and unfairly broad, encompassing millions of people who have never shown any violent tendencies, including cannabis consumers, unauthorized U.S. residents, people who have been convicted of nonviolent felonies, and anyone who has ever undergone mandatory psychiatric treatment because he was deemed suicidal.

Second, background checks are not an effective way to prevent mass shootings, since the vast majority of people who commit those crimes do not have disqualifying criminal or psychiatric records. Third, background checks, even if they are notionally “universal,” can be easily evaded by ordinary criminals, who can obtain weapons through straw buyers or the black market. Fourth, voluntary compliance is apt to be the exception rather than the rule, and enforcement will be difficult, if not impossible.

Since the Manchin-Toomey approach applies only to relatively conspicuous sales, enforcement would be easier, but only because unadvertised private sales would be exempt. The House bill would be mostly aspirational and symbolic, since the government has no way of knowing when guns change hands if the sales are not advertised and do not happen at gun shows.

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

After the mass shootings in El Paso, Texas, and Dayton, Ohio, last month, President Donald Trump signaled his support for expanded background checks. “Serious discussions are taking place between House and Senate leadership on meaningful Background Checks,” he said in an August 9 tweet. “I have also been speaking to the NRA, and others, so that their very strong views can be fully represented and respected. Guns should not be placed in the hands of mentally ill or deranged people. I am the biggest Second Amendment person there is, but we all must work together for the good and safety of our Country. Common sense things can be done that are good for everyone!”

The White House, however, has not accepted ownership of Barr’s idea, and most Republicans in the Senate will not support a background check bill unless Trump says he is prepared to sign it. Politico reports that “a senator who met with Barr said the attorney general made clear he had authorization from the White House.” That seemed to be news to the White House. Presidential spokesman Hogan Gidley told Politico “the president has not signed off on anything yet but has been clear he wants meaningful solutions that actually protect the American people and could potentially prevent these tragedies from ever happening again.”

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8 Cases Everyone Should Know from the Taney and Chase Courts

Here is another preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should KnowThis post will focus on cases from the Taney and Chase Courts.

Prigg v. Pennsylvania (1842)

Dred Scott v. Sandford (1857)

Ex Parte Merryman (1861)

United States v. Dewitt (1869)

Hepburn v. Griswold (1870)

Knox v. Lee (1871)

The Slaughter-House Cases (1873)

Bradwell v. Illinois (1873)

You can also download the E-Book or stream the videos.

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The Supreme Court’s Next Big School Choice Case

In 2002, the U.S. Supreme Court upheld Cleveland, Ohio’s school choice program against the charge that it was unconstitutional for that city to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. So long as “a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice,” the Court said in Zelman v. Simmons-Harris, the program passes constitutional muster.

The Supreme Court is now preparing to weigh the constitutional merits of another school choice initiative. At issue in Espinoza v. Montana Department of Revenue is a 2015 scholarship program created by the Montana legislature “to provide parental and student choice in education.” The program operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify for the scholarships may use the money to help send their children to a “qualified education provider,” a statutory category which includes religiously affiliated private schools, grades K through 12.

In 2018, however, the Montana Supreme Court declared religious schools entirely off-limits for the program, pointing to a provision of the Montana Constitution which prohibits the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in party by any church, sect, or denomination.”

In other words, the Montana Supreme Court said that the state Constitution prohibits the very sort of school choice programs that the U.S. Supreme Court has previously upheld under the federal Constitution. The Montana Court resolved this conflict by putting its own interpretation first. “We conclude that Montana’s Constitution more broadly prohibits ‘any’ state aid to sectarian schools and draws a ‘more stringent line than that drawn’ by its [federal] counterpart,” the state court declared.

That judgment will now be reviewed by the U.S. Supreme Court.

It is difficult to imagine a majority of the justices allowing the Montana decision to stand. For one thing, the Montana scholarship program seems to easily satisfy the test of constitutionality set out in Zelman v. Simmons-Harris and related cases. For another, the Supreme Court is unlikely to let a state court chart its own path in opposition to the federal jurisprudence that is in place for the rest of the country. It is one thing, after all, to let the states operate as “laboratories of democracy,” but it is something else to let the Constitution effectively mean two different things in two different states, to say that the Constitution protects the rights of parents and children to access school choice programs in Ohio but does not protect the rights of parents and children to access similar programs in Montana.

Assuming the Supreme Court follows its own precedents, Espinoza v. Montana Department of Revenue looks to be a winner for the school choice side.

Oral arguments in the case are likely to be held sometime in early 2020.

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Did California Just Abolish Single-Family Zoning?

From the passage of statewide rent control to the failure of a bill legalizing more home construction near transit and job centers, it hasn’t been a great year for free market solutions to California’s housing shortage. That is, at least, until you consider the quiet success of efforts to allow for more accessory dwelling units (ADUs).

In the waning days of the 2019 legislative session, state lawmakers passed a series of bills loosening up zoning rules governing ADUs, sometimes known as granny flats or in-law suites. These reforms—which build on legislation passed in 2016—put additional limits on the powers of local governments to regulate ADUs to death, and allow more homeowners to convert their garage or tool shed into affordable rental housing.

“The big news is that we have effectively ended single-family zoning in California,” says Matthew Lewis, director of communications for California YIMBY, an advocacy group that sponsored two of the three ADU bills.

The first bill, AB 68, lets homeowners build up to two ADUs on their property by right. That means local governments don’t have the discretion to deny these projects or impose additional conditions on their approval outside of what’s already spelled out in the city’s zoning code.

In addition, the bill restricts the size, setback, and parking requirements local zoning codes can impose on ADUs. It also reduces the time local governments have to approve new units from 120 days to 60 days.

Two other bills, AB 881 (also sponsored by California YIMBY) and SB 13, prohibit local governments from requiring that an owner occupy the new units, and reduce the fees homeowners can be charged to build them.

These provisions helped build political support for the bill among homeowners, says Lewis, who tells Reason that they “see some self-interest in being able to create some rental income for themselves.”

If the state’s past experience with ADU liberalization is any guide, this year’s changes will also lead to a surge in new housing supply.

In 2016, state lawmakers passed legislation that allowed homeowners to build one ADU by right and limited the types of impact and utility fees they could be charged for constructing them.

In response, ADU permit applications in Los Angeles jumped 30-fold after these news laws went into effect, increasing from just 257 in 2016 to 3,818 in 2017. In 2018, a full 20 percent of the permits granted for new housing units in Los Angeles were for ADUs, according to a report from the Sightline Institute, a Seattle-based urban policy think tank.

More cities could be taking advantage of ADUs, but traditional zoning rules often get in the way, says Margaret Morales, a policy analyst at the Sightline Institute. “The biggest ones are often parking requirements. Requiring extra off-street parking can be difficult if you have a small lot and it’s very expensive,” Morales says. The same is true of other standard policies like minimum lot coverage standards and setback requirements which limit the amount of land that can be devoted to backyard cottages or other types of ADUs.

“If cities set those outrageously high,” says Morales, homeowners aren’t able to squeeze new units onto their property.

Following California’s lead, Seattle recently passed new ADU legislation which allows up to two such units per single-family lot, eliminates minimum parking requirements for ADUs, and abolishes the city’s owner-occupancy rules for these granny flats.

On the downside, that same law imposed maximum size limits on new homes.

Morales says that more granny flats are a great way to add new supply in cities with a lot of single, detached family homes. She also cautions that they “are not the silver bullet to solve our housing shortage alone. I think they are part of the multi-prong package we need to consider.”

Nevertheless, the past successes of ADU legislation in places like Los Angeles demonstrate how much new housing can be built when government gets out of the way.

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Compelling Testimony Against Michigan’s Ban on Flavored E-Cigarettes Highlights the Deadly Folly of the Vaping Crackdown

Mark Slis, a 55-year-old father of three, smoked for 41 years and tried to quit for three decades with every method he came across, including hypnosis and various nicotine replacement products. Nothing worked until 2014, when Slis wandered into a vape shop in Houghton, Michigan. “Twenty minutes later,” he told Michigan legislators last week, “I walked out a nonsmoker.” A year and a half after that experience, Slis, who runs a geophysical consulting firm, bought the store. Since then, he said, he has helped about 1,000 other smokers quit by switching to vaping.

Slis drove 500 miles from Houston to Lansing, the state capital, to testify against the ban on flavored vaping products unilaterally imposed by Michigan Gov. Gretchen Whitmer (D), which threatens to wipe out his business, drive his customers back to smoking, and prevent him from helping other people make a switch that could save their lives. If Whitmer’s ban is allowed to stand, he said, “you won’t just be banning flavors; you’ll be banning a lifesaving industry from this state….That is absolutely unforgivable.”

Slis tried to set the record straight about the e-liquid flavors that are supposedly designed to entice teenagers. “All my customers have three things in common,” he said. “They are adults; they are desperate to quit smoking after years, if not decades, of failing; and they all use flavors….Ninety-nine percent of my customers use flavors. The flavors are absolutely necessary, and they are the key to quitting smoking.” He described one customer, an 87-year-old grandmother, whose favorite flavor is the supposedly juvenile Fruity Pebbles. “I’ve heard people up there say that adults don’t do these flavors,” he said. “That’s not true. I have 80 flavors chosen by adults. Not one of them chose tobacco flavor, the only one that will be left.”

Slis also noted that Whitmer’s ban, which makes possession of “four or more flavored vapor products” a misdemeanor punishable by up to six months in jail, will turn his customers into criminals. “All of my customers, every one of them, walk around with three or four bottles of different flavors,” he noted.

Stephen Knight, owner of Vapejuice, an e-liquid manufacturer in Grand Rapids, echoed Sils’ point about flavors. In a letter to House Oversight Committee Chairman Matt Hall, a Republican who represents parts of Calhoun and Kalamazoo counties, Knight said his company had developed more than 100 flavors, each of which has “helped tens of thousands of customers quit using combustible cigarettes.” He said “less than 2% of our customers currently use our tobacco-flavored e-liquids”—the only kind that would be tolerated by Whitmer’s ban, which was officially published yesterday and gives retailers two weeks to comply.

The committee also received letters from former smokers who used flavored vape products to quit. “Although wild speculation by anti-tobacco activists would have you believe that the range of flavors serves the sole purpose of enticing children, in reality, the variety of flavors plays a crucial role in helping people who smoke transition away from combustible tobacco,” one said. “Prohibiting the sale of these products will discourage people who smoke from switching to safer alternatives.”

Gregory Conley, president of the American Vaping Association, which supports vaping as a harm-reducing alternative to smoking, likewise emphasizes the importance of flavor variety. “There is a reason why the majority of adult ex-smokers who vape use fruit and sweet flavors, while only a very small portion use tobacco or menthol,” he says. “Fruit and sweet flavors help adult smokers disconnect from the taste of smoking. Tobacco flavors, on the other hand, are actually linked to dual use, which is continuing to use both cigarettes and vaping products.”

Sils’ store, 906 Vapor, is one of more than 500 vaping businesses in Michigan, which employ thousands of people and serve thousands of adults looking for an alternative to smoking. “If the governor’s order stands and flavors are banned,” he said, “I will immediately go out of business and file for bankruptcy. No question.”

Similar results can be expected in New York, where the State Public Health and Health Planning Council this week approved “emergency” regulations backed by Gov. Andrew Cuomo (D) that prohibit the sale of vaping products in flavors other than tobacco and menthol. That ban will affect some 700 vaping businesses throughout the state and probably will force many to close up shop, depriving their customers of nicotine products that are far less dangerous than combustible cigarettes and nearly twice as effective in smoking cessation as conventional alternatives.

“Prohibition has never worked in this country, and it will once again fail miserably in the State of New York,” Conley says. “There is blood on the hands of the unelected bureaucrats who fiddled with their phones while members of the public explained how this ban would cause disastrous public health consequences. Make no mistake about it, a flavor ban will send a significant number of adult vapers back to smoking.”

Conley notes that the American Cancer Society, which is not keen on e-cigarettes, nevertheless worries about the consequences of banning them. “If that’s what they choose, and they’re not going to try any other way, then they should receive support and also be encouraged to stop using those products as soon as they’re able, but never to resort to conventional cigarette smoking,” Cliff Douglas, the organization’s vice president for tobacco control, told Modern Healthcare this week. “If the result of stopping vaping is that people smoke Marlboros again, then that’s a disaster. They’re not equivalent.”

The Food and Drug Administration (FDA), whose former commissioner called e-cigarettes “a tremendous public health opportunity,” nevertheless plans to inflict this disaster nationwide by ordering the removal of vaping products in flavors other than tobacco. President Donald Trump explained that ban by saying that “we are going to have to do something” about underage vaping. “While I like the Vaping alternative to Cigarettes, we need to make sure this alternative is SAFE for ALL!” he said on Twitter last Friday. “Let’s get counterfeits off the market, and keep young children from Vaping!”

Preserving the “vaping alternative to cigarettes” is plainly inconsistent with a ban on the products that former smokers overwhelmingly prefer. And such a ban has absolutely nothing to do with “get[ting] counterfeits off the market.” To the contrary, it will be a huge boost to the black market, which offers e-liquids that “have no controls on them whatsoever” (as Cuomo puts it) and may be contributing to the recent cases of respiratory illnesses among vapers (although the vast majority of those cases involve black-market cannabis products).

As for “keep[ing] young children from vaping,” selling e-cigarettes to minors is already illegal. Instead of enforcing age restrictions, Michigan, New York, and the FDA are bent on denying adults an opportunity to quit smoking the way Mark Sils did. This policy is logically analogous to banning all sales of flavored alcoholic beverages because teenagers have been known to drink them.

Results from the 2019 Monitoring the Future Study, which the National Institute on Drug Abuse (NIDA) released yesterday, indicate that 25 percent of 12th-graders had vaped nicotine in the last month, while 12 percent had vaped on 20 or more days in the previous month. NIDA Director Nora Volkow calls that “a public health crisis.” The same survey indicates that 30 percent of 12th-graders are past-month drinkers, but state and federal officials are not planning to bring back alcohol prohibition.

It’s true that vaping is on the rise among teenagers, while drinking has been declining in recent years. But given the relative hazards of alcohol and nicotine, that’s a pretty good trade. More to the point, the Monitoring the Future Study and other national surveys show that smoking among teenagers has reached record lows, a downward trend that accelerated as e-cigarettes became increasingly popular. That’s an even better trade, since e-cigarettes are indisputably far less hazardous than the conventional kind. To the extent that teenagers are vaping instead of smoking, that is an unambiguous public health win.

The real “public health crisis” is not the one perceived by Volkow. It’s the one that Michigan, New York, and the FDA are about to create by denying smokers access to potentially lifesaving alternatives.

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The First Amendment and Tax Exemptions for “Hate” Groups

Here is my testimony, in case our readers find it interesting.

* * *

Dear Chairman Lewis, Ranking Member Kelly, and Members of the Committee:

Many thanks for inviting me to testify about “How the Tax Code Subsidizes Hate.” The Tax Code indeed subsidizes hate, just as it subsidizes Socialism, Satanism, and a wide variety of dangerous and offensive ideas. Under the First Amendment, tax exemptions have to be distributed without discrimination based on viewpoint; that means that evil views have to be treated the same way as good views.

1. The Supreme Court has repeatedly made clear that tax exemptions can’t be denied based on the viewpoint that a group communicates. This was first made clear in Justice Brennan’s opinion in Speiser v. Randall (1958), which struck down a denial of a property tax exemption to people and organizations that “advocate[] the overthrow of the Government of the United States . . . by . . . violence . . . or who advocate[] the support of a foreign government against the United States in the event of hostilities”:

[A] discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. It is settled that speech can be effectively limited by the exercise of the taxing power. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. . . . [T]he denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is “frankly aimed at the suppression of dangerous ideas.”[1]

The Supreme Court reaffirmed this in 1983, and again in 1995.[2] Though “the Government is not required to subsidize” speakers, once it chooses to provide such a subsidy—including through “tax deductions for contributions”—it must abide by “the requirement of viewpoint neutrality in the Government’s provision of financial benefits.”[3] And the U.S. Court of Appeals for the D.C. Circuit has specifically applied this to denials of a 501(c)(3) tax exemption, holding that “in administering the tax code, the IRS may not discriminate on the basis of viewpoint” (there, against pro-Israel speech that departed from the Administration’s foreign policy).[4]

2. The Court has also made equally clear that excluding speech that manifests or promotes “hate” is forbidden viewpoint discrimination. The Court said so unanimously in Matal v. Tam, which struck down a rule that excluded “disparag[ing]” trademarks from certain kinds of trademark enforcement benefits.[5] In Matal, the Patent and Trademark Office refused to register the trademark “The Slants,” because it perceived the mark as a derogatory term for Asians. This refusal was just the denial of a benefit; no-one was being threatened with jail or fines for using the name—owners of this mark were just not being given access to certain useful remedies against those who would infringe the mark. But the Court still concluded that such exclusion of disparaging marks was forbidden viewpoint discrimination.[6]

3. The law may treat groups differently based on their actions, but not based on the views they express. Thus, for instance, in Bob Jones University v. United States, the Supreme Court upheld the denial of a tax exemption to a university that banned interracial dating by its students, and that threatened to expel students who violated the ban.[7] Likewise, in Christian Legal Society v. Martinez, the Supreme Court held that public universities could deny generally available benefits to student groups based on those groups’ exclusionary membership policies.[8] But the government may not deny tax exemptions or similar benefits to universities, churches, student groups, or other groups simply because they advocate against interracial dating, or against interfaith dating, or against same-sex dating. As the Court made clear in Christian Legal Society,

Although registered student groups must conform their conduct to the Law School’s regulation by dropping access barriers, they may express any viewpoint they wish—including a discriminatory one. Today’s decision thus continues this Court’s tradition of “protect[ing] the freedom to express ‘the thought that we hate.'”[9]

4. Groups may be denied tax exemptions for deliberately engaging in speech that falls within one of the few narrow exceptions to the First Amendment, such as true threats of criminal attack, or incitement intended to and likely to cause imminent criminal conduct. But “hate speech” writ large doesn’t fall within any such exceptions, as cases such as Matal and Christian Legal Society make clear.

And any such rule denying tax exemptions for constitutionally unprotected speech must itself be administered in a viewpoint-neutral way. For instance, if Congress enacts a statute denying tax exemptions to groups that engage in libel, or threats, or incitement, that statute would equally have to cover racist groups, anti-police groups, animal rights groups, and any other groups.[10] Likewise, if the government enforces bans on fraudulent fundraising by 501(c)(3) educational groups, it must do that for all kinds of groups, regardless of viewpoint.

5. Tax exemptions cannot be limited (as the IRS once tried to limit them) to groups that “present[] a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion.”[11] Any such test, the D.C. Circuit has held, “lacks the requisite clarity, both in explaining which applicant organizations are subject to. the standard and in articulating its substantive requirements.”[12]

It’s possible that tax exemptions to advocacy groups might be allowed only for groups that support their arguments with “intellectual exposition” consisting of “a rational development of a point of view,” rather than merely “expres[ing] . . . emotions” (in the words of a 1983 D.C. Circuit decision, which the IRS has since adopted into its regulations).[13] I’m not certain this is so; I think the Supreme Court may well conclude that this so-called “methodology” standard, like the “sufficiently full and fair exposition” standard, is so subjective as to provide too much room for deliberate or subconscious viewpoint discrimination.[14]

But even if such a “methodology” test is sufficiently clear to be constitutional, it must be applied in a way “neutral with regard to viewpoint.”[15] Indeed, the government’s argument in favor of such a test, which the D.C. Circuit decision approved, stressed that the test supposedly “leads to the minimum of official inquiry into[,] and hence potential censorship of, the content of expression, because it focuses on the method of presentation rather than the ideas presented.”[16]

So if the IRS wants to deny tax exemptions to groups that spread certain ideas on the grounds that those groups are too “emotional” rather than “intellectual” or “rational” in their arguments, it must apply precisely the same standard to all groups—animal rights groups, pro-life groups, pro-gun-control groups, and more. And courts will then have to decide whether the government is indeed treating all viewpoints equally in that respect.

It’s also not clear that much would be gained from requiring hate groups to support their views using factual arguments (which could easily be based on pseudoscience), or pressuring them to add the patina of “reasoned development” to their claims. Advocates of any position, however wrong-headed, can always cherry-pick some facts that they could use to buttress their arguments. And the IRS can’t decide whether those arguments are correct; as the D.C. Circuit recognized, “because of First Amendment considerations, . . . the government must shun being the arbiter of ‘truth.’ Material supporting a particular point of view may well be ‘educational’ [and thus entitled to a tax exemption] although a particular public officer may strongly disagree with the proposition advocated.”[17]

As a result, having the IRS focus on the “methodology” of a group’s arguments is unlikely to effectively sort good advocacy groups from bad ones. But it would exacerbate the risk that government officials will succumb to the normal human impulse to apply the rules selectively to their political enemies.[18]

6. Of course, many Americans are understandably upset that their tax money flows—whether through tax exemptions or through university student group funding policies or subsidies for mailing newspapers or books—to views that they believe (perhaps quite correctly) to be evil. Many religious people are understandably upset when they have to subsidize blasphemy. Many pro-life advocates are understandably upset when they have to subsidize pro-choice groups, and vice versa.

Police officers and their friends and families may be understandably upset when their taxes go to speech that sharply condemns the police, and perhaps even creates a climate that encourages anti-police violence. In the 1950s, many Americans were understandably upset when tax exemptions benefited advocacy of Communist revolution and Communist tyranny (which explains the law struck down by the Court in Speiser v. Randall). And of course many Americans are understandably upset when tax exemptions benefit speech that is hateful towards blacks or whites or Jews or Muslims or evangelical Christians or any other group.

But giving the government the power to discriminate against some such viewpoints necessarily means the government will also have the power to discriminate against others. Would we feel comfortable giving this power to the Trump Administration? If we would, would we feel comfortable giving it to a possible Sanders Administration? I doubt there are many people who would trust both those Administrations; and this distrust of government power is one reason the First Amendment exists.

Many campaigns for democracy, liberty, and equality have been greatly helped by the First Amendment, and by courts’ willingness to enforce the First Amendment. But the Court has recognized that this protection against governmental suppression of speech must apply to foes of these principles as well as friends. As Justice Brennan wrote in NAACP v. Button (1963)—an important win for the NAACP—the NAACP’s civil rights mission was “constitutionally irrelevant” to the Court’s First Amendment analysis. “The course of our decisions in the First Amendment area makes plain that its protections would apply as fully to those who would arouse our society against the objectives of the [NAACP]. For the Constitution protects expression and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered.”[19]

“[T]he freedoms . . . guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”[20] Justice Black wrote this in dissent in 1950, arguing for the rights of Communists. The Supreme Court adopted this principle in a majority opinion in 1972, protecting the Students for a Democratic Society’s right of equal access to public university facilities. Those were wise words then, and they remain so today.

[1] 357 U.S. 513, 516, 518-19 (1958).

[2] Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548 (1983); Rosenberger v. Rector, 515 U.S. 819, 834 (1995).

[3] Rosenberger, 515 U.S. at 819.

[4] Z Street v. Koskinen, 791 F.3d 24, 30 (D.C. Cir. 2015).

[5] 137 S. Ct. 1744 (2017).

[6] There were two opinions in the case, one joined by four Justices and one by four others, but both opinions made clear that the exclusion of disparaging marks was unconstitutionally viewpoint-based. Id. at 1763 (Alito, J.) (lead opinion); id. at 1766 (Kennedy, J., concurring in part and concurring in the judgment). Justice Gorsuch had not yet been confirmed to the Court when the case was argued, so only eight Justices participated.

[7] 461 U.S. 574 (1983).

[8] 561 U.S. 661 (2010).

[9] Id. at 696 n.26. Likewise, in Runyon v. McCrary, 427 U.S. 160 (1976), the Court held that the government may ban race discrimination by private schools, but only after distinguishing educational institutions that engage in “the practice of excluding racial minorities” (which can be forbidden) from those that promote “the belief that racial segregation is desirable” (which is constitutionally protected). Id. at 176.

[10] See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

[11] Big Mama Rag, Inc. v. United States, 631 F.2d 1030, 1034 (D.C. Cir. 1980).

[12] Id. at 1036.

[13] National Alliance v. United States, 710 F.2d 868, 872 (D.C. Cir. 1983); Rev. Proc. 86-43, 1986-2 C.B. 729.

[14] For instance, in Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876, 1891 (2018), the Supreme Court struck down a ban on an ill-defined category of “political” expression at polling places, reasoning:

It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Election judges “have the authority to decide what is political” when screening individuals at the entrance to the polls. We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.”

[15] National Alliance, 710 F.2d at 875.

[16] Id.

[17] Id. at 873-74.

[18] See, e.g., True the Vote, Inc. v. IRS, 831 F.3d 551, 559 (D.C. Cir. 2016) (quoting 2013 Treasury Inspector General for Tax Administration report called “Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review,” and noting that, among other things, “The Determinations Unit [of the IRS] developed and used inappropriate criteria to identify applications from organizations with the words Tea Party in their names.”); Kelly Phillips Erb, Why Justice Matters: The Income Tax Trial of Martin Luther King, Jr., Forbes, Jan. 15, 2018 (discussing IRS targeting of Martin Luther King, Jr.); Chuck Hobbs, Dr. Martin Luther King Jr. [and] the IRS, Tallahassee Democrat, (discussing IRS targeting of King and the Southern Christian Leadership Conference, as well as of “religious organizations dubbed ‘extremist groups'”).

[19] 371 U.S. 415, 444-45 (1963).

[20] Healy v. James, 408 U.S. 169, 188 (1972) (quoting Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 37 (1961) (Black, J., dissenting)).

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What Is the Ideal Strategy for the Libertarian Party? A Soho Forum Debate

“The Libertarian Party should never again put up national candidates whose views are similar to those of Gary Johnson and Bill Weld.”

That was the resolution of a public debate hosted by the Soho Forum in New York City at the SubCulture Theater on September 10, 2019. It featured comedian and podcast host Dave Smith and Nicholas Sarwark, the chairman of the Libertarian National Committee. Soho Forum director Gene Epstein moderated.

Arguing for the affirmative was Dave Smith, whose 2017 comedy special Libertas was ranked as the number 1 comedy special on iTunes for three weeks. Smith is the host of the popular libertarian podcast Part of the Problem and a co-host of the comedy podcast Legion of Skanks.

Nicholas Sarwark argued for the negative. Sarwark is currently serving his third term as chairman of the Libertarian National Committee, which is the executive body of the Libertarian Party.

It was an Oxford-style debate: The audience votes on the resolution at the beginning and end of the event, and the side that gains the most ground is victorious. Smith won the night by convincing 20 percent of the audience, while Sarwark convinced 16.8 percent.

The Soho Forum, which is sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Produced by John Osterhoudt.

Photo credit: Brett Raney

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Government Employees Think People Hate Them. Increasingly, They’re Right

“People actively hate us,” one recently retired U.S. Border Patrol agent complains in a New York Times piece on morale and recruitment problems at the federal agency. In El Paso, an active duty agent admitted he and his colleagues avoid many restaurants because “there’s always the possibility of them spitting in your food.”

What’s remarkable about the piece isn’t the poor treatment directed at many Border Patrol agents; it’s that you could replace “Border Patrol” with the name of any one of several other federal agencies and find a similar news story from recent years. Many arms of government are unpopular with large swathes of the American population, and people are not shy about expressing their contempt.

For those of us who want a smaller, much less intrusive government, that should be viewed as a trend to nurture and encourage. And what a trend it is.

For instance, the tax man can’t catch a break.

“The IRS has long been disliked, but its employees aren’t used to being vilified,” Bloomberg reported in 2015, in language that foreshadowed current reports about the plight of immigration-law enforcers. One retired IRS agent told reporters that “throughout his career, he dealt with antigovernment tax avoiders in Arizona, but once the Tea Party scandal broke, his encounters with otherwise law-abiding ranchers became more hostile.”

Likewise, J. Edgar Hoover’s heirs have become controversial.

“Public support for the FBI has plunged,” Time noted last year after the famed law-enforcement agency’s ongoing series of fumbles and scandals were complicated by questions over its role in the 2016 presidential election. “The FBI’s crisis of credibility appears to have seeped into the jury room. The number of convictions in FBI-led investigations has declined in each of the last five years.”

That’s a lot of hate directed at these federal employees, but it’s not necessarily coming from the same people. Perhaps inevitably in these fractured and polarized times, Americans belonging to one of the dominant political tribes tend to like the federal agencies despised by loyalists of the opposing political tribe, depending on their mutually incompatible views of what government should be doing and who it should be doing it to. Their diverging antipathies fit together into a jigsaw puzzle of misery for government workers caught in the crossfire.

“Americans’ opinions about Immigration and Customs Enforcement are deeply polarized: 72% of Republicans view ICE favorably, while an identical share of Democrats view it unfavorably,” Pew Research Center reported last year on opinions about Border Patrol’s sister agency. With specific regard to Border Patrol, “Among Republican voters, 65% believe the enforcement is too lenient while just 12% say it is too harsh. Democrats are more divided but lean in the opposite direction: 40% say too harsh and 22% too lenient,” according to pollster Scott Rasmussen. The heated debate between the two legacy parties over immigration is reflected in their attitudes toward, and treatment of, government agencies tasked with enforcing immigration laws.

Opinions of the IRS reflect a similar divide. “Democrats (65%) are more likely than Republicans (49%) to view the IRS favorably,” Pew reported in the same 2018 survey. The numbers reflect not just long-time differences in views of taxation, but also Republican suspicion of the IRS after it was caught targeting conservative organizations.

It’s the same for the FBI. “The 23-percentage-point gap in views of the FBI among Republicans and Democrats is among the widest of the 10 agencies and departments asked in the survey,” Pew noted about the beleaguered law enforcement agency. “While 78% of Democrats and Democratic-leaning independents have a favorable opinion of the FBI, 55% of Republicans and Republican leaners say the same.”

Americans don’t agree about which federal agencies they hate, but the fact that significant numbers of them do openly despise government workers plays havoc with morale. That, in turn, slams employee retention and recruitment.

Border Patrol is about 1,800 agents short of its hiring targets, IRS workers are heading for the exits, and even the fabled FBI saw a drop in applications, despite a slight uptick this year in morale.

To be clear, federal agencies don’t need partisan animosity to make their employees unhappy; they’re awfully good at doing it by themselves. Transportation Security Administration workers are so miserable that a blue ribbon panel convened this year to brainstorm schemes for dragging them from the depths of despair. And the entire Department of Homeland Security makes a specialty of managerial incompetence so extreme that politicians seek to raise morale through—literally—an act of Congress (is there nothing beyond the magical power of legislation?).

But red vs. blue infighting creates a no-win situation in which American political factions fundamentally disagree over the role of government, despise those arms of government that serve their enemies’ purposes, and wield the agencies they control as weapons against anybody seen as opponents. It’s at least theoretically possible (if highly improbable) to make a generic federal agency a better place to work. But how do you get Americans to show respect to government workers who they see as engaged in evil?

So, given that those of us who want a smaller and less bothersome state are often deeply opposed to those agencies’ worst efforts, why not help the partisans lay on the hate? After all, the one thing that Republicans and Democrats seem to agree on is that government should be bigger and busier—”most either want to increase spending or maintain it at current levels,” pollsters found this year—though, of course, Republicans and Democrats disagree on just where our huge and debt-ridden government should become more involved.

Helping the major political tribes attack each other’s favored agencies won’t formally reduce government the way libertarians like, but it could continue to hobble agencies so that they’re less of a threat to our freedom and rights. At least for now, the most effective means of protecting liberty may lie less in winning political battles than in assisting the major partisan tribes in waging war against each other and the government agencies they currently disfavor.

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The Growing Right-Wing Threat to Campus Free Speech

When it comes to free speech on American campuses, there seems to be a law of conservation at work: Just when the internal threat of censorship from left-wing campus activists is abating, the external threat from right-wing lawmakers starts rising. Given that the new threat relies not on the decibel level of immature 18-year-olds but the state power of motivated adults, it may be much harder to fight.

Concerns about political correctness on campus date back at least 25 years before Philip Roth wrote The Human Stain, his brilliant novel depicting the travails of a half-black classics professor pretending to be Jewish who gets summarily fired after black students take offense over his use of the word “spooks.” But after a brief hiatus, these concerns came back with a vengeance in the last decade, at least partly because a well-oiled right-wing machine emerged to pounce on every student transgression—big and small, real and imagined, in order to paint a picture of a “free speech crisis” in academia.

Consider the experience of Ursinus College’s Jonathan Marks, a conservative professor who writes extensively about higher education: He recounts with amusement how first The College Fix, a right-wing campus watchdog website, and then Breitbart picked up a piece he wrote for Commentary earlier this year making fun of California State Fresno’s new faculty and staff rules prescribing that “everyone be nice to each other.” Both outfits distorted the story and blamed students who had nothing to do with the rules, because that was better aligned with their narrative of easily triggered snowflakes demanding safe spaces. The College Fix appended a grudging “update” after some coaxing from Marks, but Breitbart didn’t bother. “If you investigated the dental profession with as much intensity as college campuses and devoted entire websites to covering it, you could come up with lots of bad things too,” he laughs.

Though the notion of a campus free speech crisis may be overblown, it’s still a problem. Otherwise, New York magazine’s Jonathan Chait, a liberal, wouldn’t write about the damage that a culture rife with trigger warnings and microaggressions does to the cause of free and open dialogue. Vox even thought it fit to run a piece by a liberal professor under a pseudonym complaining that some of his liberal students “terrify” him.

But regardless of how one characterizes what’s transpiring on campuses, there are encouraging signs that things are getting better.

A report last year by the Foundation for Individual Rights in Education (FIRE), an outfit that does yeoman’s work tracking the threats to free speech in colleges, found that the percentage of institutions with speech codes “that clearly and substantially restrict freedom of speech,” a genuine problem in the 1990s, had diminished by 42 percentage points since 2009 in the sample it surveyed. Even better, 37 universities earned its green light rating for having no speech codes whatsoever compared to merely eight in 2009. Meanwhile, 27 schools or faculty bodies embraced University of Chicago’s widely-praised free speech principles—up from just seven the year before. The principles reaffirm the university’s commitment to stand firm against the disinvitation of controversial speakers or disruption of events.

There is more good news on the disinvitation front: After peaking in 2016 at 43 disinvitations, the number plummeted to 18 last year, according to FIRE’s non-comprehensive tracking list. This year, the disinvitation number has moved up to 30—including 13 leftist speakers—but that’s still lower than the peak. The most likely reason for the overall drop isn’t self-censorship or state laws protecting campus speech, Acadia University’s Jeffrey Adam Sachs has convincingly argued. Rather, it is a combination of boredom over the tactics of campus yahoos and a new culture of campus tolerance with students forming clubs and networks to promote respectful cross-political dialogue. It also helps that, unlike 2016, this is not a polarizing presidential election year.

But even as universities are beginning to defuse the threat to free speech from leftist radicals on campus, they are facing new ones from right-wing lawmakers off campus.

Conservatives warn day and night about liberal political correctness but give scarcely a thought to how their own brand of patriotic correctness stifles free expression. If they did, they wouldn’t be instigating anti-flag-burning amendments on a regular basis. And they certainly wouldn’t have stood squarely behind this president when he berated 49ers quarterback Colin Kaepernick for kneeling during the national anthem to protest police brutality and demanded that the NFL fire him.

Nor are conservative lawmakers shy about launching their own jihad on academic freedom to squelch professors or viewpoints they dislike.

There is a rising trend that goes something like this, as per New York University’s Jonathan Haidt: A left-wing professor says something provocative on social media or elsewhere and the right-wing media goes into overdrive, covering the story ad nauseum to gin up viewer outrage. Republican politicos jump in and demand action. University administrators, terrified of the PR damage but unworried about academic freedom, put the professor on leave and begin the “process of termination,” especially if the professor isn’t tenured. (Haidt, incidentally, is no liberal pleader. He is a celebrity in conservative circles because he founded the highly respected Heterodox Academy, whose purpose is to address the lack of intellectual diversity on liberal-dominated campuses.)

In just the last six months, Acadia University’s Sachs has documented several incidents in Iowa, California, and Connecticut that fit exactly this pattern.

In another incident just last month, the University of Alabama fired Jamie R. Riley, its black assistant vice president and dean of students, after Breitbart exposed past tweets in which Riley criticized the American flag and made a connection between police and racism. Meanwhile, the chief of staff of Rep. Jeff Fortenberry (R–Neb.) personally called and threatened University of Nebraska Professor Ari Kohen for “liking” a Facebook post depicting a defaced campaign sign of the congressman showing googly eyes and calling him Fartenberry. The staffer accused Kohen of encouraging “vandalism,” arguably an attempt at chilling speech.

It isn’t just professors that Republicans are going after. In January, FIRE had to send a cease-and-desist letter to the University of Georgia after it invited an investigation by the state’s Republican attorney general into a philosophy graduate student who called white people “crappy” at a meeting.

Meanwhile, bills are proliferating across Republican-controlled states such as Wisconsin requiring universities to expel students engaging in “disruptive” protests, which could potentially include anything from loud clapping to walkouts, according to the ACLU. Also in Wisconsin, a Republican lawmaker threatened to cut the University of Wisconsin’s budget over an “obscene” reading assignment aimed at exploring how sexual preferences can lead to racial segregation in the gay community.

In another disturbing incident, Rep. Ted Budd (R–N.C.), successfully petitioned the Department of Education secretary to investigate Duke University and the University of North Carolina to ensure that the $235,000 grant that the universities’ Middle East consortium received isn’t being used to promote “anti-Israel bias.”

Conservatives pose as the guardians of free speech against the excesses of political correctness. Yet they have few qualms about deploying the purse and power of the state to police the boundaries of acceptable speech and speakers. It is too bad that conservatives’ threat of censorship is heating up just when campus snowflakes are showing signs of melting away.

A version of this column originally appeared in The Week.

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