On Elite Campuses Like Smith College, Woke Students Have All the Power

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During the summer of 2018, a Facebook post by a black Smith College student named Oumou Kanoute went viral. Smith recounted being harassed by a college janitor and police officer who had accused her of trespassing while eating inside a dormitory lounge. The incident left her shaken and frightened—in Kanoute’s telling, she was persecuted for the crime of “eating while black.”

The Washington Post and The New York Times both covered her story, and the American Civil Liberties Union (ACLU) came to her assistance. As a result of the attention brought to the situation, many of the employees involved—particularly the janitor and a cafeteria worker who had spoken with Kanoute—were publicly branded racists and subjected to extreme opprobrium. Kanoute eventually received a formal apology from Smith College’s president, Kathleen McCartney.

“This painful incident reminds us of the ongoing legacy of racism and bias in which people of color are targeted while simply going about the business of their ordinary lives,” said McCartney in a public statement.

Yesterday, the Times revisited the story, adding some key details. It turns out that Kanoute was trespassing: The dormitory in which she ate lunch was closed to students for the summer. Only children attending a summer camp were allowed to use the building’s cafeteria. The janitor who approached Kanoute—a nearsighted man in his 60s—had every reason to call security, and the officer who showed up apologized for bothering the student. Contrary to Kanoute’s claim that she thought her life might be in danger, the officer was quite unarmed.

According to the Times, Smith commissioned a report on the incident, and that report

cleared Ms. Blair altogether and found no sufficient evidence of discrimination by anyone else involved, including the janitor who called campus police.

Still, Ms. McCartney said the report validated Ms. Kanoute’s lived experience, notably the fear she felt at the sight of the police officer. “I suspect many of you will conclude, as did I,” she wrote, “it is impossible to rule out the potential role of implicit racial bias.”

The report said Ms. Kanoute could not point to anything that supported the claim she made on Facebook of a yearlong “pattern of discrimination.”

Ms. McCartney offered no public apology to the employees after the report was released. “We were gobsmacked — four people’s lives wrecked, two were employees of more than 35 years and no apology,” said Tracey Putnam Culver, a Smith graduate who recently retired from the college’s facilities management department. “How do you rationalize that?”

Rahsaan Hall, racial justice director for the A.C.L.U. of Massachusetts and Ms. Kanoute’s lawyer, cautioned against drawing too much from the investigative report, as subconscious bias is difficult to prove. Nor was he particularly sympathetic to the accused workers.

“It’s troubling that people are more offended by being called racist than by the actual racism in our society,” he said. “Allegations of being racist, even getting direct mailers in their mailbox, is not on par with the consequences of actual racism.”

The revelation that the entire narrative surrounding the incident was a lie has not changed matters one bit at Smith. Employees must now undergo rigorous anti-bias training. Faculty are exempt from these sessions, but they are encouraged to attend “white accountability” Zoom groups, in which they are supposed to interrogate their prejudices.

The Times story is worth reading in full, because it’s a welcome instance of the mainstream media giving much-needed attention to the phenomenon of ostensibly progressive (though considerably privileged) college students weaponizing false claims of racism or sexism to punish ordinary, innocent people who irked them. It’s a tactic that is spreading from elite college campuses to elite media institutions—like the Times itself—which disproportionately hire graduates of places like Smith. And it’s spreading still. As Andrew Sullivan once observed, “We all live on campus now.”


FREE MINDS

Amazon is no longer carrying When Harry Became Sally, a socially conservative take on transgenderism by Ryan Anderson, president of the Ethics and Public Policy Center. Amazon has not offered an explanation, but appears to have recently crafted a policy against “content that we determine is hate speech,” according to The Washington Free Beacon.

As a private bookseller, Amazon is not required to stock its virtual shelves with any particular tome. But refusing to sell Anderson’s book will prompt understandable charges of rank hypocrisy. Prime users can currently order Mein Kampf and have it delivered in 48 hours.


FREE MARKETS

The White House is still backing former Center for American Progress President Neera Tanden to head the Office of Management and Budget, but Senate Democrats are postponing committee votes on her nomination. According to Reuters:

Biden, a Democrat, still supports Tanden, an Indian American who would be the first woman of color to lead the agency.

“Neera Tanden is a leading policy expert who brings critical qualifications to the table during this time of unprecedented crisis,” his press secretary, Jen Psaki, wrote on Twitter.

Asked later at the White House whether Tanden had offered to withdraw her nomination, Psaki said: “That’s not the stage we’re in.”


QUICK HITS

• The Conservative Political Action Conference (CPAC) begins today, and former President Donald Trump is slated to speak on Sunday. Rep. Liz Cheney (R–Wy.), who voted to impeach the president, thinks Trump should not continue to play a role in the Republican Party’s activities, but she seems to be vastly outnumbered.

• Hillary Clinton is writing a thriller.

Mercia Bowser, elder sister of Washington, D.C., Mayor Muriel Bowser, has died of COVID-19.

• New York Gov. Andrew Cuomo is facing his own #MeToo scandal.

• Fans of Frasier and Avatar: The Last Airbender have reasons to celebrate.

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First Amendment Right to Videorecord TSA Patdown of Your Family Member

From Dyer v. Smith, decided Tuesday by Judge John A. Gibney, Jr. (E.D. Va.):

On June 8, 2019, Dustin Dyer, his husband, and their children traveled through the airport in Richmond, Virginia. When the family entered the TSA checkpoint, TSA agents quickly cleared Dyer and the children. The agents did not, however, clear Dyer’s husband. They told Dyer’s husband that, per TSA policy, they must perform a pat-down search because he carried infant formula that they could not open for testing.

As the pat-down search began, Dyer turned on his cell phone camera and began recording the search. Dyer stood about ten feet away from the pat-down. After about one minute, TSA Agent Natalie Staton noticed Dyer recording and asked him to stop, saying that his recording impeded the ability of the agent performing the pat-down “to do his job.” Dyer did not stop recording and asked Staton, “What are you talking about?” Staton then left and returned with her supervisor, Shirrellia Smith.

Dyer asked Smith if he could record and Smith responded, “No, no recording.” Dyer stopped recording. Staton then asked Smith to “order Dyer to delete the recording that he had made so far.” Smith ordered Dyer to delete the video while Staton watched. “Dyer deleted the recording from his phone while [Staton] looked at the screen of his cell phone ….”

TSA agents then allowed Dyer, his husband, and their children to leave the checkpoint for their flight. Dyer later recovered a copy of the deleted video from his cell phone….

“As the Supreme Court has observed, ‘the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.'” Glik v. Cunniffe (1st Cir. 2011). “An important corollary to this interest in protecting the stock of public information is that ‘[t]here is an undoubted right to gather news “from any source by means within the law.”‘”

Courts across the country agree that incident to the “right to gather news,” citizens have some right to record government officials performing their jobs. The Eleventh and Ninth Circuits recognize a broad right to record matters of public interest. The First Circuit acknowledges a right to record government officials engaged in their duties. Four other circuits [the Third, Fifth, Seventh, and Eighth] recognize a narrower right to record a subset of government officials: law enforcement officers. Considering this growing consensus, this Court finds that the First Amendment protects the right to record government officials performing their duties.

{Recognizing that the First Amendment protects the right to record government officials performing their duties enables “a foremost purpose of the Constitution’s guarantee of speech”: “to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them.”

In addition, when we protect the right to record public officials, we protect against the degradation of various other constitutional rights. This country’s racial unrest highlights this principle. Because a cell phone video captured George Floyd’s death, the world watched. The world’s reaction to this video—and others—sent millions into the streets in protest. Although the racial reckoning continues, this video and the protests it sparked bent “the arc of the moral universe … towards justice.” What if the officers had ordered the video that captured George Floyd’s death deleted?}

The First Amendment, however, does not offer absolute protection; the government can regulate activity protected by the First Amendment. The extent to which the government can impose such regulation depends on the type of forum in which the protected activity occurs. In a nonpublic forum—the forum at issue in this case—the government may impose “reasonable” regulations that do not arise from “an effort to suppress the speaker’s activity due to disagreement with the speaker’s view.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, (1992) (holding that the government can impose reasonable restrictions on speech in an airport operated by a public authority). Thus, the government can impose reasonable regulations on the right to record government officials performing their duties in Richmond’s airport.

Dyer accuses the defendants of prohibiting him from recording the pat-down search of his husband from about ten feet away and ordering him to delete the video from his cell phone. Dyer says that his recording did not interfere with the screening procedure. Accepting the facts asserted by the plaintiff as true, the defendants’ demand that Dyer stop recording and delete the captured video plausibly constitutes an unreasonable restriction on the plaintiff’s First Amendment right to record government officials performing their duties. In making these allegations, Dyer sufficiently pleads a First Amendment violation.

The court also held that the right was sufficiently clearly established to overcome qualified immunity, and therefore refused to dismiss Dyer’s claim.

 

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Legal Pot Doesn’t Seem To Increase Teen Use or Addiction

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Opponents of marijuana legalization frequently warn that it will lead to rampant cannabis consumption by teenagers. But two studies published in November found that legalization has not been associated with increases in adolescent marijuana use or addiction. In fact, there is some evidence that both decline when pot prohibition is repealed for adults.

Boston College psychologist Rebekah Levine Coley and four other researchers looked at trends in marijuana use among teenagers in 47 states, as measured by the Youth Risk Behavior Survey, from 1999 to 2017. During that period, eight states and the District of Columbia legalized recreational marijuana use by adults 21 or older.

“We found no evidence that [recreational legalization] was associated with increased likelihood or level of marijuana use among adolescents,” Coley and her colleagues reported in the Journal of Adolescent Health. “Rather, among adolescents who reported any use of marijuana in the past month, the frequency of use declined by 16%.”

That finding suggests shifting the supply of marijuana from black-market dealers to state-licensed retailers who enforce a minimum purchase age helps curtail adolescent access, even if legalization also increases purchases by adult relatives and acquaintances. Legalization may also reduce marijuana’s “forbidden fruit” appeal to teenagers.

Coley et al.’s finding that legalization is associated with less-frequent use among adolescent cannabis consumers is consistent with the results of a study that looked at trends in addiction treatment admissions. Between 2008 and 2017, Temple University health geographer Jeremy Mennis found, the number of “adolescent treatment admissions for marijuana” per 10,000 teenagers fell by nearly half nationwide, and the downward trend was especially sharp in states that legalized recreational use for adults.

Seven of those eight states “fall into the class with the steepest level of admissions decline,” Mennis reported in a study published by the Centers for Disease Control and Prevention. “This research suggests that a precipitous national decline in adolescent treatment admissions, particularly in states legalizing recreational marijuana use, is occurring simultaneously with a period of increasing permissiveness, decreasing perception of harm, and increasing adult use, regarding marijuana.”

Since most teenagers admitted to treatment for marijuana use end up there after getting into legal trouble, this decline may be partly due to changes in law enforcement practices. But a 2019 study in the journal Drug and Alcohol Dependence suggests the admissions trend also reflects real changes in adolescent behavior. Between 2002 and 2016, according to survey data, the prevalence of “cannabis use disorder” fell by 27 percent among teenagers who used marijuana frequently.

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Brickbat: Gunning for a Ban

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The Canadian parliament is expected to pass a bill that would allow cities to ban handguns. The bill would also make it easier to revoke gun licenses and make it easier for friends and family members to have police remove someone’s guns. “We are not targeting law-abiding citizens who own guns to go hunting or for sport shooting,” said Prime Minister Justin Trudeau. “The measures we’re proposing are concrete and practical. And they have one goal and one goal only: protecting you, your family and your community.”

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The Minimum Wage Is Terrible for America’s Most Vulnerable Workers

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In his autobiography, “Up From the Projects,” the late economist Walter Williams explained his move away from the belief that minimum wages help the poor. His change of heart on the topic began when one of his UCLA professors asked him whether he cared more about the intentions behind the minimum wage or its effects.

Williams devoted much of his professional career to studying minimum wages and documenting their negative effects, particularly on young Black people. While Williams had the good sense to learn that good intentions alone are insufficient to produce good public policy, many others have failed to learn this lesson.

The latest illustration is an attempt to jack up the minimum wage to $15 per hour as part of another COVID-19 relief bill. Rep. Ro Khanna, D-Calif., recently declared on CNN’s “Inside Politics” that small businesses wouldn’t struggle under a federal mandate to pay employees $15 an hour, even during a recession. To support his claim, he pointed out that Target and Amazon, two of the greatest beneficiaries of the lockdown, raised their lowest hourly wage to $15 voluntarily. He later asserted that he doesn’t want small businesses that are underpaying workers and that $15 is very reasonable. How he knows this is a mystery, but this arrogance demonstrates an ignorance of basic economics.

Walter Williams summarized the general position of economists on this issue in an article titled “Minimum Wage, Maximum Follies.” He wrote, “While there is a debate over the magnitude of the effects, the weight of research by academic scholars points to the conclusion that unemployment for some population groups is directly related to legal minimum wages. The unemployment effects of the minimum-wage law are felt disproportionately by nonwhites.”

Minimum wages reduce the employment of low-skilled workers—a group disproportionately represented by immigrants, inner-city minorities, and young people. Some workers lose jobs altogether, while others see their hours reduced. This doesn’t mean that there are no beneficiaries of higher minimum wages. Economic theory predicts that some workers who are currently employed will retain their jobs with no reduction in hours, even after the minimum wage is increased. For those workers, the increase means higher take-home pay, although the jobs themselves might become more demanding or less secure.

So, what do we know about raising the federal minimum wage to $15, even gradually? In theory, we know a lot, but the empirical evidence is limited since so few states and localities have tried it. There are, however, some noteworthy attempts to get a good grasp of what might happen.

First, the Congressional Budget Office estimates that a $15 minimum wage by 2025 would eliminate 1.4 million jobs over that period. The CBO also forecasts that this increase could decrease business income, increase consumer prices and tap the brakes on the economy.

Second, economists at the University of Washington studied the employment effects of Seattle’s move to gradually increase its minimum wage to $15. Seattle, already a high-wage city, first raised its minimum wage to $13 in 2016 and hiked it to $15 in 2021.

Summing up the findings in Seattle, Michael Strain writes in Bloomberg: “The economists found that this led to a 9% reduction in low-wage jobs. The pay increase it generated didn’t make up for the reduction in employment, and earnings fell for low-wage workers overall. The economists’ subsequent research found that the gains from the higher minimum wage accrued to more experienced workers.” As I noted, there are some winners (those who are already relatively better) and some losers (those already worse off).

In a recent Twitter thread, one of the authors of the study, Jake Vigdor, noted that the following pattern emerges for employers dealing with higher labor costs: “1) Don’t lay people off 2) Cut back hours 3) Cut back hiring 4) As workers quit, restore hours for those who remain.” He also warns that the negative employment effects are somewhat understated in the study because it ignores “a subset of the workforce: those who didn’t have jobs at baseline, before the wage increase.”

Workers who didn’t have a job at the time of the increase and won’t get one after may pay the steepest (and unseen or overlooked) cost of the minimum wage. As Williams explained in his autobiography, “Early work experiences not only provide the pride and self-confidence that comes from financial semi-independence but also teach youngsters attitudes and habits that will make them more valuable and successful workers in the future.”

COPYRIGHT 2021 CREATORS.COM

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Biden Revokes Trump’s Coronavirus Immigration Bans

Statue of Liberty 3

The Statue of Liberty.

 

Earlier today, President Joe Biden repealed Trump’s coronavirus immigration bans, which barred nearly all new immigrants entering for the purpose of seeking permanent residency, and also severely restricted entry based on many types of temporary work visas. In combination with Trump’s previous large-scale efforts to cut immigration of virtually all types, the 2020 executive actions had closed the US to immigration to a greater extent than at any previous time in its history, even during crises such as the world wars and the Great Depression.

I criticized the public health and economic rationales for the Trump policy in this June 2020 Atlantic article. Far from improving the economy and public health, these types of policies actually make both worse. The harm would have been much greater had the bans continued indefinitely, as Trump administration officials  said they intended to do. In the long run, immigration restrictions stifle economic and scientific innovation of the very type that is essential to boosting economic growth and generating improvements in health care, such as the Covid vaccines that are our best hope for ending the pandemic.

It is possible that Biden’s repeal of the Trump policy will be challenged in court by immigration restrictionists. But any such challenge is highly unlikely to succeed. If, as the Trump administration contended, these immigration bans were purely a matter of presidential discretion, then Biden has the power to repeal them as Trump had to institute them in the first place. If, on the other hand, the Trump policy was illegal, as I and other critics contended, then Biden had even more justification for repealing it. Indeed, in that scenario, he had a legal duty to do so.

In October 2020, a federal district court ruled against the Trump ban on work visas on several grounds, including that it violates constitutional nondelegation principles. I outlined the nondelegation case against Trump’s Covid immigration restrictions and earlier travel bans here, here, and here.

Biden’s repeal of Trump’s policy will moot out the litigation against the latter, and probably prevent it from setting any lasting precedent (district court decisions are not binding precedent for future cases). But, hopefully, future court decisions will establish the principle that it is unconstitutional for Congress to give the president virtually unconstrained authority to bar any immigrants he wants, for virtually any reason—as is true under the Trump administration’s interpretation of Section 1182(f) of the Immigration and Naturalization Act. The Trump position was largely endorsed by the Court in Trump v. Hawaii (2018)  But that ruling did not address the nondelegation issue.

Alternatively, the nondelegation problem can be solved by congressional action. The No Ban Act, introduced by congressional Democrats last year, and incorporated into the Biden administration’s new US Citizenship Act, would largely fix the problem by imposing tight constraints on presidential authority in this field.

Biden’s willingness to repeal the Covid immigration restrictions is a further sign that the new administration is serious about pursuing a pro-immigration agenda. Some observers doubted whether Biden would be willing to repeal these policies, lest he be accused of exacerbating the risks of the Covid emergency (even though the Trump bans did not actually help curb the spread of the virus); I admit I was among the doubters, myself. But I’m more than happy to be proven wrong on this point. I reviewed the administration’s other  immigration initiatives—many of which go well beyond simply repealing harsh Trump policies—here.

This is not to say that Biden’s approach is ideal. Even if fully realized, it would not come close to eliminating all of the many injustices in our immigration system. I myself have pointed out how the pro-immigration policies are at odds with the the new administration’s push for a $15 minimum wage (which would lock many new immigrants out of the labor market). Fortunately, it looks like the latter idea won’t get through Congress, in large part because of opposition by key moderate Democratic senators.

David Bier of the Cato Institute has a more pessimistic appraisal of the new administration’s policies(though written before today’s action). But, by any reasonable measure, Biden’s policies are at least a vast improvement over his predecessor—admittedly a very low standard of comparison.

 

 

 

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Libel Lawsuit Over “Son of a Hitman” Podcast

A bit about the podcast from Gina Tron (Oxygen):

A new podcast explores the sordid criminal career of Woody Harrelson’s father, a convicted murderer who worked as a hitman-for-hire…. While Woody Harrelson … isn’t involved in the podcast, his brothers Brett and Jordan do participate…. [Charles Harrelson] was convicted of the 1979 assassination of federal judge John H. Wood Jr…. Wood was the first federal judge to have been killed during the 20th century.

From the Complaint in Parker v. Spotify USA, Inc., filed today on behalf of Dr. Chrysanthe Parker, who was a prosecution witness in the Wood murder trial:

When the podcast was finally released, the host labeled Dr. Parker as “a very unusual witness,” and used that phrase as the title to Episode 6, which featured her interview. He cast her as the “star witness” and focused almost singularly on the fact that the FBI had attempted to use hypnosis to conduct some interviews with her, calling it a “display of questionable judgment.” He used only selected portions of her interview to lead the audience to the conclusion that Charles Harrelson’s conviction relied on information obtained through her hypnosis, and that Dr. Parker was complicit in a scheme to convict Charles Harrelson with fabricated evidence that should have been inadmissible. This is false. The podcast purposely concealed the fact that none of the interviews Dr. Parker gave under hypnosis were relied on by the prosecution, and that it was Charles Harrelson’s defense counsel that elicited the testimony they were discussing in the podcast at that point.

The episode similarly implies Dr. Parker’s complicity in a scheme to fabricate evidence by stating that the FBI only “found” her after an extensive search for any witnesses, implying that the FBI had become desperate for evidence. This is also false. Jason Cavanagh knew from interviewing Dr. Parker that she had contacted the FBI herself as soon as she learned about the murder of her neighbor, Judge Wood, to report the suspicious man who had purposely bumped into her, and that she gave her first interview to the FBI later that same day. The episode and the podcast as a whole purposely leads the audience to the false conclusion that Dr. Parker, as a young attorney and officer of the Court, was either complicit or actively participated in manufacturing evidence to perpetuate an unfair trial on Charles Harrelson.

Jason Cavanagh spoke with one or more former FBI agents who worked on the investigation of Judge Wood’s murder. Jason Cavanagh knew from these conversations that his allegations that Dr. Parker was a “found” witness, that she was the “star” witness, and that her statements to the FBI were obtained by hypnosis were all false and baseless. The falsity of these allegations is also confirmed by a review of the trial transcript, a basic task of investigatory research which Jason Cavanagh presumably took as a competent, ethical journalist. The verifiable reality that these allegations are false does not fit with the narrative of Jason Cavanagh’s and Brett Harrelson’s podcast, and that information was excluded.

Dr. Parker, in addition to being an attorney, is a multiply certified healthcare professional with over twenty years of experience as a treating practitioner, clinical researcher, and academic medical educator in the field of post-Traumatic stress disorder. She testifies as an expert witness, helping judges and jurors understand the causes of trauma and its effects on its victims. To be effective in this necessary work, her reputation for honesty and professionalism must remain—literally—unimpeachable. Dr. Parker has already been forced to answer questions in her practice concerning the podcast’s fabricated portrayal of her actions, character, and judgment. She has been warned that the podcast’s release may lead to her not being hired to testify in some or all cases, costing her employment and depriving the Courts of her expert perspective on trauma. The actions of the Defendants have irrevocably damaged her reputation, and the Defendants have profited and continue to profit off the sensationalist and defamatory presentation of Dr. Parker’s interview contained in “Son of a Hitman.”

I’m not sure that these factual allegations, even if accurate, amount to a viable defamation claim, but it will be interesting to watch this.

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Classes #10: Obscenity II and Estates II

First Amendment Class #10: Obscenity II

  • Miller v. California (1461-1467) / (733-739)
  • Ashcroft v. Free Speech Coalition (1467-1474) / (739-746)

Property Class #10: Estates II

Fee Simple, Continued

  • Inheritances, 258-260
  • Notes and Problems, 260-261
  • Fee Tail, 261-265 (skim)

The Life Estate

  • The Life Estate, 265
  • White v. Brown, 266-271
  • Baker v. Weedon, 274-278
  • Notes, 278-280 (skip note 4 on waste).

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