Tag: in-the-news

The Saturday after voters in Washington, D.C., and Oregon voted to loosen legal restrictions on magic mushrooms, my girlfriend and I celebrated in the most appropriate way possible. We each ate almost 5 grams of the stuff, ground up and stuffed into capsules. This was a Venti-sized, mind-blowing “heroic dose” in the parlance of the late Terence McKenna, the Johnny Appleseed of hallucinogenic fungi, and we tripped for a good chunk of the afternoon and early evening.

Journeying to the center of our minds via vision-inducing drugs (variously called hallucinogens, psychedelics, and entheogens) is perfectly suited to a world that is hyper-polarized, literally and figuratively locked down, and increasingly a little too close to an Edvard Munch painting for comfort. Mushrooms and similar substances are known to produce quasi-religious feelings of universal love, connection, empathy, and hope. They work on an intensely individual level but help you get along better with your family, neighbors, and coworkers. Far from an escape from reality, they can provide an entry point to deeper engagement with your limitations, your fears, and your aspirations.

What’s not to celebrate?

The mushroom votes—not to mention the passage of pro-marijuana initiatives in states as traditionally straight-laced as Arizona, Mississippi, and South Dakota—are undeniable confirmation that we’re in the middle of a pharmacological revolution whose implicitly libertarian goal is nothing less than giving us all more and better control over our very moods and minds. As a popular meme puts it, the drug war is over and the drugs won.

There are signs everywhere that, more than 50 years after drug pioneer Timothy Leary exhorted us all to “turn on, tune in, and drop out” (at an event preposterously, wonderfully titled “A Gathering of the Tribes for a Human Be-In”), we’re finally ready to receive the message that powerful drugs not currently stocked by your local pharmacist can help you better understand the world and thrive in it. Wherever you look, the culture is saturated like a Merry Prankster’s sugar cube with books, movies, and events featuring psychedelics such as LSD, psilocybin, mescaline, ketamine, and ayahuasca, as well as friendly cousins such as GHB and MDMA.

Knowing asides about “ayahuasca bros” and Burning Man, an annual festival that is practically synonymous with drug use, have reached a level of ubiquity at which they require no explanation. “Micro-dosing”—taking small amounts of LSD or psilocybin to boost mood and motivation—has been an accepted practice among Silicon Valley programmers, Wall Street traders, and even long-haul truckers for a decade or more. The 2020 documentary Have a Good Trip features celebrities such as Sting, Nick Offerman, Sarah Silverman, and Ben Stiller talking openly about their use of hallucinogens. (The film adds nuance and gravity to the subject by including interviews with the late Anthony Bourdain and Carrie Fisher, both of whom struggled with substance abuse.)

Oscar-winning filmmaker Errol Morris has just released My Psychedelic Love Story, which tells the story of Joanna Harcourt-Smith, Timothy Leary’s muse and partner in crime while he was a fugitive on the run from the U.S. government following a daring prison escape in 1970. In 2017, Morris released Wormwood, a Netflix series investigating the 1953 death of Frank Olson, a government scientist involved with MKULTRA, the secretive Cold War mind-control program that dosed hundreds of unwitting subjects with LSD and other substances. Sidney Gottlieb, the head of MKULTRA, is himself the subject of a recent biography by Stephen Kinzer, Poisoner in Chief (Henry Holt and Co.), which revels in the irony that it was the CIA that effectively introduced LSD to the United States in a misguided search for a truth serum to use on spies. The psychedelic renaissance even has its own glossy magazine, DoubleBlind, a publication that’s as sumptuously illustrated as any of the trips its articles describe (think National Geographic meets Wired). “We’re not speaking to the veteran tripper nor evangelizing to the anti-drug square,” write the editors, “We are speaking to everyone who is curious about psychedelics.”

In 2018, journalist Michael Pollan topped the New York Times bestseller list with How to Change Your Mind: What the New Science of Psychedelics Teaches Us About Consciousness, Dying, Addiction, Depression, and Transcendence (Penguin Press). The same year saw the release of Trip: Psychedelics, Alienation, and Change (Vintage), a memoir-cum-manifesto by the literary novelist Tao Lin that took a deep dive into the life and thought of McKenna, co-author of the seminal reference work on how to cultivate and use magic mushrooms. The new memoir Listening to Ecstasy: The Transformative Power of MDMA (Park Street Press), by psychotherapist Charles Wininger, is the latest attempt by a mental-health practitioner to come out of “the chemical closet” and forthrightly discuss both his personal use of psychedelics and how they might help patients. The world is, at long last, ready for “serious fun,” he writes.

On the medical and legal fronts, MDMA, which was banned in 1985, is in stage 3 clinical trials for use in treating post-traumatic stress disorder (PTSD). If all goes well, the Food and Drug Administration (FDA) will approve its use by prescription in therapeutic settings within a few years. Researchers and therapists are similarly experimenting with ways to legalize the medical use of LSD and psilocybin, which the FDA has recognized as a “breakthrough therapy” for depression. Other researchers are using psychedelics to treat addiction and substance abuse—one of the most promising clinical uses of LSD before it was banned in the late ’60s. (The founder of Alcoholics Anonymous, “Bill W.,” praised the drug’s effects until his 12-step colleagues told him to cool it.)

“The psychedelic drug industry is ‘the new cannabis’ for investors,” reads a recent, and increasingly typical, headline at Yahoo! Finance. The story discusses the rising valuation of MindMed, a publicly traded Canadian company that is seeking FDA approval of various psychedelics, and the emergence of Compass Pathways, “the first psychedelic drug company to reach a billion dollar market cap when it went public on the Nasdaq.” Business meetings with titles such as “The Psychedelic Opportunity” and “The Economics of Psychedelic Investing” are popping up like so many magic mushrooms in the mud.

“Better living through chemistry” started out as an earnest advertising slogan for the DuPont conglomerate before the phrase became a countercultural in-joke in the 1960s. These days, as the number and kind of what the government defines as either “licit” or “illicit” substances have proliferated, it aptly describes the American way of life. The question isn’t between drugs and abstinence; it’s between smart, intentional use and unexamined, mindless ingestion. Two-thirds of us use legal prescription drugs, according to researchers at Georgetown University. Almost as many—60.1 percent, according to the latest National Survey on Drug Use and Health—used alcohol, tobacco, kratom, marijuana, or another drug in the past month. Just under 2 million used a hallucinogen, the category that includes the mushrooms approved by Oregon and D.C. voters.

Which brings me back to my trip.

I was in my living room when the drugs kicked in, wearing a sleep mask and listening to spacey, ethereal, electronic music. Suddenly, I was like Billy Pilgrim, the time-and-space-traveling G.I. hero of Kurt Vonnegut’s 1969 novel Slaughterhouse-Five. Every trip is different, and for the next several hours I roamed the known and unknown universe and commingled with the living and the dead, with an emphasis on the latter.

I spent time with an old friend who committed suicide by gun years ago. (His apartment had been surrounded by the police due to overdue rent and antisocial behavior brought on by unchecked alcoholism.) I revisited dark, booze-sloppy periods during which I was distant and inattentive to my sons when they profoundly needed me. I shared a brief-but-welcome hug with my own long-dead father, who, like Vonnegut, served in Europe during World War II and participated in suffering and carnage that I thankfully will never personally know.

Never for a second did I lose touch with basic reality, but past sounds, sights, smells, and especially emotions were all around me. For the first time in more than a quarter-century, I experienced my father’s scent, an idiosyncratic blend of Brut deodorant, Barbasol shaving cream (the “beard buster”), Pall Mall Red cigarettes, and denture powder. I knew it wasn’t real, but it unlocked memories and moments I hadn’t thought about in forever. Later, my girlfriend and I lay down together and shared what we were seeing and what we were feeling, which produced a sense of closeness that was intense and even a little scary in its power. Even at their best, trips are always a workout, in the sense that a long hike up a mountain is a workout. You feel good and tired afterward.

I could go on, but let’s be honest: Descriptions of drug trips, even more than conventional travel stories, are boring as hell to read because they are so ultra-personalized, so filled with barely coherent symbolism, and so indeterminate in their meaning. (As with life itself, you may not know whether something really important happened for days, months, or even years.) The significance of any particular trip is far less than the sum of all of them. Fortunately, we will be taking more and more as support for the war on drugs declines and cities and states (and, eventually, the federal government) move toward legalization. If you’re interested in giving shrooms a try, read Mike Riggs’ “How to Take Shrooms,” first.

You will not be taking Tim Leary’s trip or anyone else’s. Today’s psychedelic revolution will integrate the breakthroughs and, if we’re lucky, learn from the follies of past flirtations with iconoclasm and behavior as outlandish as it was necessary to rejuvenate a country governed by what Leary called a “menopausal mentality” and run by 50-year-old men who looked twice their age. The Human Be-In took place in 1967 in San Francisco’s Golden Gate Park and featured a chanting Allen Ginsberg, hippies dressed like Robin Hood and Maid Marian, and rock bands, one of them (Blue Cheer) named for a variety of LSD. The revolution today is taking place at corporate retreats in Napa (of all places), research labs at Johns Hopkins and New York University, 7-Eleven parking lots, and everywhere in between. Contemporary psychonauts are looking for insight, relief, fun, escape, and a million other things to make their lives more interesting and bearable.

What’s different this time is that we’ve all grown up with (mostly legal) drugs. We have a more mature understanding of their potential for use and abuse, whether legal or not. The drug war has been revealed not simply as expensive and destructive of civil liberties but as ineffective at keeping pharmacological substances from the people who want them. Our overwhelmingly positive experiences with first medical and then recreational pot have taught us that there is such a thing as responsible drug use. Obversely, we see that skyrocketing rates of opioid addiction don’t indict the substances; they indict the legal frameworks that surround drugs, especially rules that make it harder for people with problems to seek and receive help.

“People should have the fundamental human right to change their consciousness,” Rick Doblin, head of the Multidisciplinary Association for Psychedelic Studies, told me in February 2020, just as the coronavirus was starting to trigger lockdowns that would make psychic travel easier than its meatspace alternative. Doblin’s group is sponsoring the MDMA trials that will soon lead to its use in psychotherapy to treat PTSD. “Psychedelics are tools,” he emphasized. What we will build with them isn’t yet clear, and maybe it never will be. But this fall’s mushroom moment at the polls is just the beginning of a trip that will be taking us as far as we dare to dream.

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The long-running Timbs v. Indiana asset forfeiture case is back in the Indiana Supreme Court for the third time. For almost eight years, the state of Indiana has waged a legal battle to seize and keep Tyson Timbs’ Land Rover (valued at about $40,000), after he was caught selling illegal drugs to an undercover cop (an offense for which he served a year under house arrest and five years probation). The state seized the car, using the civil asset forfeiture process, which allows the government to confiscate property that was in some connected to a crime, often even if the link was dubious, at best, and even if the owner was never charged or convicted of any offense.

Abusive forfeitures are a widespread problem that often victimizes innocent people and particularly harms the poor.  In many states, law enforcement agencies get to keep the proceeds from seized assets, which incentivizes them to pursue asset forfeiture instead of devoting time and effort to actually combatting crime.  I described the problems caused by asset forfeiture abuse in greater detail in my 2019 testimony before the Arkansas State Advisory Committee to the US Commission on Civil Rights. The outrageous injustices of the asset forfeiture system have earned widespread condemnation from scholars and activists across the political spectrum, many of whom agree on little else.

In 2017, the Indiana Supreme Court upheld the seizure of Timbs’ vehicle on the basis that the Excessive Fines Clause of the Eighth Amendment does not apply to state governments. In an important 2019 ruling, the federal Supreme Court unanimously reversed the state court decision, and held that the Excessive Fines Clause does indeed apply to state and local governments, and also that it forbids at least some asset forfeitures.

After the case was remanded to the Indiana Supreme Court, that court issued a decision establishing standards for the application of the Excessive Fines Clause to asset forfeitures that seemed likely to lead to the invalidation of the seizure of Timbs’ land rover. Last May, a state trial court applying the federal and state supreme court rulings finally ordered the return of the car to Timbs, some seven years after the case began.

Undaunted, the state has continued its Inspector Javert-like quest to establish possession of the Land Rover. It is now back in the Indiana Supreme Court, trying to get the trial court decision reversed. Reason’s Billy Binion has a helpful summary of the where the case now stands:

In May 2020, Timbs reclaimed the car, but only after a legal saga that saw his case ping-pong up and down the rungs of the U.S. court system….

A trial court ruled in his favor…, writing that seizing the vehicle—which was worth four times the value of the maximum financial penalty for the crime Timbs committed—was indeed “excessive.”

Indiana was unfazed. “The state is once again asking the Indiana Supreme Court to hold that there is no proportionality limit on how much property they can forfeit, that they can forfeit a Bugatti if it goes five miles over the speed limit, regardless of what an obvious mismatch and injustice that would be,” says Sam Gedge, an attorney at the Institute for Justice, the legal nonprofit representing Timbs.

Their alternative argument isn’t much better. The state maintains that, even if proportionality is on the table, “when it comes to punishing anybody who struggled with drug addiction, no punishment is too high,” Gedge explains. “So [the state] can basically take everything they own, and that shouldn’t violate the excessive fines clause.”

These arguments strike me as somewhere between weak and utterly risible. The whole concept of an “excessive” fine implies there must be at least some degree of proportionality between the offense the owner supposedly committed and the value of the property seized. Indeed, proportionality is central to the Indiana Supreme Court’s earlier decision in the Timbs case itself, where that court ruled that judges applying the Excessive Fines Clause in asset forfeiture cases must determine whether the forfeiture would be “grossly disproportionate” to the offense in question. In the process, they must weigh such factors as the severity of the offense and the value of the property to the owner. You don’t have to be a property rights expert to see that this test is all about proportionality.

Similarly, nothing in the Indiana Supreme Court ruling or the text, original meaning, and history of the Eighth Amendment creates a special exception for drug offenses. To the contrary, draconian seizures of property belonging to small-time drug offenders like Timbs are clear examples of unconstitutional excessiveness, if anything is.

Thus, it seems likely that the state will suffer another defeat, and Timbs will ultimately prevail (again!). But, as I have written before, the almost interminable saga of this case highlights the need for more comprehensive asset forfeiture reform:

[T]he fact that this case has dragged on for so long is an indication of how hard it can be for owners to recover their property once it has disappeared into the maws of the asset forfeiture system. Law enforcement is loathe to disgorge its ill-gotten gains. And, unlike Timbs, most owners do not have the benefit of excellent pro bono representation from the Institute for Justice, one of the nation’s leading public interest law firms. In many situations, the cost of using the legal system to recovery seized property is greater than the value of property itself. So owners have little choice but to give up, even if they are entirely in the right.

To fully address these issues, we need both stronger judicial enforcement of constitutional limits asset forfeitures, and more legislative reform of the kind already enacted in many—but by no means all—states.

The new Biden Administration can help by repealing Trump’s  2017 revival of the federal “equitable sharing” program, under which state and local asset forfeitures are “adopted” by the federal government. The feds then share the proceeds with state and local law enforcement agencies—even in cases where state law otherwise bars the latter from profiting from the seized assets.

NOTE: Tyson Timbs is represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this particular case. IJ has a section of its website devoted to the Timbs case here.

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As the Washington Post recently reported, human rights activists and others are advocating a boycott of the upcoming 2022 Winter Olympics in Beijing, China, because of the Chinese government’s many egregious atrocities, including its detention of hundreds of thousands of Uighurs in concentration camps, brutal repression in Hong Kong, and much else.

Calls for a boycott are justified. The present Chinese government isn’t just any dictatorship. It is one of the worst human rights abusers in the entire world. And there is no other way to prevent the Olympic Games from becoming a propaganda showcase for this regime.  Chinese dissident and human rights lawyer Teng Biao recently called for a boycott for that very reason. We should listen to him.

Most of what I wrote in this 2016 article  on sports boycotts applies to the Chinese case in spades (see also here for a more complete version):

For decades, people of goodwill have debated whether liberal democracies should boycott Olympic Games and other sports events held under the auspices of repressive governments. Apartheid South Africa was the target of a long-standing sports boycott that denied it the right to even participate in most international sports events, much less host them. Sixty-two nations, including the United States, boycotted the 1980 Summer Olympics in Moscow, in protest of the Soviet invasion of Afghanistan….

The standard argument against boycotts is the traditional idea that international sports events should be kept free of politics. The problem with this theory is that the Olympics and other similar events are virtually always used as propaganda tools by host governments, as happened with Nazi Germany in 1936, the USSR in 1980, and Vladimir Putin’s regime in 2014 [with the Winter Olympics held in Sochi]. For this reason, it is nearly impossible to make them genuinely politically neutral. The only realistic options are either to allow repressive regimes to use the Games to burnish their public image, keep them from hosting in the first place, or forestall their propaganda by means of a boycott that undercuts the Games’ public relations benefits for the hosts…

[S]ome [host] governments commit serious human rights violations in the very process of preparing for the games themselves. For example, China forcibly displaced some one million people in order to prepare facilities for the 2008 Olympics in Beijing. Brazil displaced many thousands in order to build new stadiums for the 2014 World Cup. Even if it is wrong to boycott in protest of “unrelated” human rights violations, the international sports community should not tolerate abuses that are an integral part of the sports event itself.

I have not been able to find figures on forcible displacement in preparation for the 2022 Beijing games. But, given its track record, it would be surprising if China did not engage in that practice this time around.

Some have suggested that, instead of boycotting, Western athletes should hold protests at the games themselves, and use the opportunity to criticize Chinese repression. But any such protests are likely to be drowned out by the media attention devoted to the sports events themselves, and what is likely to be fawning coverage of the hosts’ opening ceremonies and other propaganda set-pieces. By contrast, a boycott would focus world attention on the Chinese government’s human rights abuses, while simultaneously reducing any PR and economic benefits the regime might earn from the Games. If all or most liberal democracies boycott, TV ratings for the Games will plummet, and media and public attention will instead focus on the boycott itself -as happened during the boycott of the 1980 Moscow Olympics.

Even a widespread boycott may not force the Chinese government to change its policies. But it will at least deny the regime a propaganda victory, and impose a price for its behavior.

If there is a downside to boycotts in such cases, it is the disappointment suffered by athletes who will lose the opportunity to compete at what, for many, is the most prestigious event in their respective sports. But that can potentially be prevented if boycotting states simultaneously pressure the International Olympic Committee to revoke China’s right to host the Games and instead shift them elsewhere. I have long argued that the IOC and other similar international bodies should adopt a general policy of banning hosting by repressive regimes. Revoking China’s hosting rights would be a good start on the road to eliminating the dark side of the Olympics.

As Teng Biao points out, such a policy would be in accordance with the IOC’s own professed principles, since the The Olympic Charter calls for “promoting a peaceful society concerned with the preservation of human dignity” and “social responsibility and respect for universal fundamental ethical principles.” Allowing China (and other similar regimes) to host the Olympics is obviously incompatible with these ideals.

If the IOC refuses to see reason, there is also the option of organizing an alternative winter games in a more liberal society. Plenty of democracies have the necessary facilities. If all or most liberal democratic nations boycott, and instead participate in the alternative games, the latter are likely to have a higher standard of performance in most winter sports than the official IOC event. European and North American nations have the lion’s share of top athletes in most winter sports.

In the final analysis, no opportunity for athletic achievement is valuable enough to justify promoting the propaganda interests of a regime that has become one of the most brutally oppressive in the world. Ideally, the West and its allies should force the IOC to move the Games. If that cannot be done, we should boycott.

 

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On Friday, nearly 150 law professors signed a statement about President Trump’s First Amendment defenses. The new statement begins:

At that trial, President Trump’s lawyers plan to defend his actions on January 6 by arguing that the First Amendment shields him from conviction. We, the undersigned constitutional law scholars, write to explain why this is wrong. The First Amendment is no bar to the Senate convicting former President Trump and disqualifying him from holding future office. Although we differ from one another in our politics, disagree on many questions of constitutional law, and take different approaches to understanding the Constitution’s text, history, and context, we all agree that any First Amendment defense raised by President Trump’s attorneys would be legally frivolous. In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office.

The introductory section strikes a cord of unanimity. But it isn’t clear that all of the signatories agree on a single rationale of why a First Amendment defense would be
“frivolous.”

Roman numeral I is titled:

“The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for President Trump.”

I would think that all of the signatories agree with this statement. But they do not. The section begins:

“Many of us believe that the First Amendment simply does not apply here.” 

Many? How many? Is many “most”? A majority? A plurality? The letter does not say. Presumably, some of the signatories agree with me and my colleague Seth Barrett Tillman that the First Amendment does apply–or at least has some relevance–to impeachment proceedings. There very well may be a consensus, but there are dissenters to this critical question.

Roman numeral II is titled:

“Even if the First Amendment applies in impeachment proceedings, it does not prohibit conviction and disqualification for violating the President’s Oath of Office.”

Again, I would think that all of the signatories agree with this statement. But they do not. The section begins:

Many of us believe that, regardless of whether the First Amendment does or does not apply to impeachment, President Trump can be convicted and disqualified . . . .

Again, “Many.” Presumably, some of the signatories do not agree with this statement. And the inclusion of “regardless of whether” makes it even less clear what “Many” professors are agreeing to. Some professors may think the First Amendment applies to impeachment proceedings. Some professors do not. Some professors think that the First Amendment does not apply, and Trump can be convicted for some reason. And some professors think that the First Amendment applies, and Trump cannot be convicted. But the full sentence makes it even less clear what “many” professors are agreeing to. Here is the full excerpt: 

Many of us believe that, regardless of whether the First Amendment does or does not apply to impeachment, President Trump can be convicted and disqualified because he is accused of violating his oath through an “extraordinary, unprecedented repudiation of the President’s duties to protect the government” through his “further acts and omissions after he incited the crowd to attack the Capitol”—namely, by allegedly watching the mob storm Congress on television and “not immediately taking action to protect Congress and the Capitol.”

There are two alleged courses of conduct. First, the January 6 speech. And second, watching the mob and failing to take immediate action. The letter explains:

While reasonable people can disagree as to the scope of free speech rights in specific contexts (such as the scope of the government’s power to limit its own employees’ public expression), no reasonable scholar or jurist could conclude that President Trump had a First Amendment right to [1] incite a violent attack on the seat of the legislative branch, or [2] then to sit back and watch on television as Congress was terrorized and the Capitol sacked.

I don’t believe Trump’s lawyers have defended this latter alleged course of conduct on First Amendment grounds. There are certainly defenses to be raised, but I don’t think the lawyers would argue the President has a First Amendment right to watch TV and fail to dispatch troops. How many of the signatories think the latter course of conduct is impeachable? And how many of the signatories think the former course of conduct is impeachable? And how many think both courses are impeachable? We do not know.

Roman numeral III is titled:

“The President’s speech and conduct around January 6 constitute unprotected incitement.”

Does everyone agree with that statement? No. The section begins:

Even if the principles of First Amendment law are applicable in the impeachment context (and many of us believe they are not), many of us believe there is an extraordinarily strong argument that the Supreme Court’s standards, articulated in Brandenburg v. Ohio, for when the government may criminally punish an individual’s deliberate incitement of others to engage in imminent lawless acts are satisfied in this case.

This sentence is even tougher to follow. Many professors think the First Amendment is not relevant. But some do. And many professors think that Brandenburg is satisfied. But not all. So we are left to believe that some of the signatories think that the First Amendment applies and the Brandenburg test is not satisfied. In other words, Trump’s speech would be protected under the Brandenburg standard. These dissenters would agree with me and Tillman, at least in part. But they may think that the President’s other conduct after the speech is impeachable. And there is no First Amendment defense to that other conduct. The letter states:

In this context and under the circumstances, many of us believe there is a powerful case that even under the Supreme Court’s narrow standards for when speech inciting violence is not constitutionally protected, President Trump’s words and conduct were unprotected. His words and conduct were, in the words of the Brandenburg case, “directed to inciting or producing imminent lawless action and . . . likely to . . . produce such action.”

By allowing such a wide range of views, the drafters of this letter have revealed there is some dissent on this issue. Yet the conclusion dismisses any possible dissent:

The First Amendment is no defense to the article of impeachment leveled against the former President, because the First Amendment does not apply in impeachment proceedings; because the president does not have a First Amendment right to incite a mob and then sit back and do nothing as the hostile mob invades the Capitol and terrorizes Congress; or because, in context, President Trump engaged in unlawful incitement.

Do all the signatories agree with this statement? Or only “many”?

***

I have long been critical of these sorts of group statements. Law professors tend to have very nuanced views. And letters prepared for 100+ professors cannot adequately reflect that nuance. This letter tried to accomplish some nuance by referring to the views of “many” professors. But in doing so, the letter fractured so badly that I’m not even sure what precisely a majority agreed upon. This statement reads like a splintered plurality decision from the Supreme Court where there is a majority that agrees on a single disposition, but there is no single rationale. Alas, this nuance will be lost in public discourse. What matters is that 140 law professors submitted a letter arguing against Trump’s First Amendment defenses.

The New York Times offered this summary:

Claims by former President Donald J. Trump’s lawyers that his conduct around the Jan. 6 Capitol riot is shielded by the First Amendment are “legally frivolous” and should do nothing to stop the Senate from convicting him in his impeachment trial, 144 leading First Amendment lawyers and constitutional scholars from across the political spectrum wrote in a letter circulated on Friday.

Which argument, exactly, is “legally frivolous”? I do not know.

One of my co-bloggers, Sasha Volokh, signed the statement. But other co-bloggers, who have written about the First Amendment and January 6–Jonathan Adler, Ilya Somin, Keith Whittington, and Eugene Volokh–did not sign. Several of these professors signed another letter about late impeachments. 

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The New York Times on Friday forced out its lead pandemic reporter, 47-year newsroom veteran Donald McNeil Jr., because the Grey Lady’s management, under public pressure from more than 150 employees, decided that when it comes to speaking certain radioactive words, not only does intent not matter, any utterance is potentially a one-strike offense.

“We do not tolerate racist language regardless of intent,” Times Executive Editor Dean Baquet and Managing Editor Joe Kahn explained bluntly in a memo Friday.

McNeil, 67, went as a representative of the Times on a 2019 trip with American high school students in Peru. There, according to his farewell note to colleagues—which, tellingly, was the first time the context of his career-ending comments had ever been reported during the 8-day life cycle of this journalism-world controversy—McNeil “was asked at dinner by a student whether I thought a classmate of hers should have been suspended for a video she had made as a 12-year-old in which she used a racial slur. To understand what was in the video, I asked if she had called someone else the slur or whether she was rapping or quoting a book title. In asking the question, I used the slur itself.”

After receiving complaints back then from at least six parents or students—one of whom said “He was a racist….He used the ‘N’ word, said horrible things about black teenagers, and said white supremacy doesn’t exist”—the Times “conducted a thorough investigation and disciplined Donald for statements and language that had been inappropriate and inconsistent with our values,” according to a company statement January 28. “We found he had used bad judgment by repeating a racist slur in the context of a conversation about racist language.”

Added Baquet in an internal memo: “During the trip, he made offensive remarks, including repeating a racist word in the context of discussing an incident that involved racist language. When I first heard the story, I was outraged and expected I would fire him. I authorized an investigation and concluded his remarks were offensive and that he showed extremely poor judgment, but that it did not appear to me that his intentions were hateful or malicious. I believe that in such cases people should be told they were wrong and given another chance.”

That’s what Baquet believed last week, anyway.

This week, the newsroom revolted via a remarkable group letter in which more than 150 staffers at one of the country’s leading newspapers argued that word-choice intentions are “irrelevant,” because “what matters is how an act makes the victims feel.” Signees, declaring themselves “outraged and in pain” and “disrespected,” demanded a reinvestigation of the 2019 incident, an apology to the newsroom, and an organizational study into how racial biases affect editorial decisions. They also alleged that the controversy had surfaced new internal complaints about McNeil demonstrating “bias against people of color in his work and in interactions with colleagues over a period of years.”

Rather than blanch at that suggested new journalistic standard—if the paper is no longer recognizing the linguistic use-mention distinction, then all it will take to prompt a vast scrubbing of the archives are enough offended “victims” of articles like these—The New York Times Company leadership (Baquet, Publisher A.G. Sulzberger, Chief Executive Meredith Kopit Levien) responded to the letter with anguished obsequiousness.

“We welcome this input. We appreciate the spirit in which it was offered and we largely agree with the message,” they wrote. “We are determined to learn the right lessons from this incident and take concrete actions to improve our workplace culture, ensure the integrity of our journalism, and examine the way we manage behavioral problems among members of the staff.”

The writing was on the wall. And not just for Donald McNeil.

Friday also saw the resignation of Times podcast producer Andy Mills, co-creator of The Daily and producer of the initially acclaimed and then heavily criticized series Caliphate, one of whose central characters turned out to be a probable fabulist. The two personnel cases (which like all personnel cases are very difficult to assess accurately from the outside looking in), while being vastly different in underlying causes, nevertheless contain important overlap and even connective tissue.

After the Times began to distance itself away from Caliphate in December, many journalists inside and outside the newsroom began grumbling that Mills was not being punished enough, especially compared to the series’s star reporter, Rukmini Callimachi, who was demoted and subject to a lengthy internal review. There was, critics alleged, a “sexist double standard,” made all the more intolerable by a re-popularized 2018 New York magazine article about Mills’ aggressive sexual flirtations with colleagues years before at WNYC, for which he had been punished at the time.

In January, more than 20 National Public Radio affiliates signed a joint letter of complaint about The Daily and Mills, citing among a litany of complaints his workplace relationships with women.

It was this months-long controversy, much of it played out on social media, that Dean Baquet was alluding to in his initial responses to the public Donald McNeil revelations. “Some people think we have been too tolerant in disciplining high-profile journalists,” he wrote in his January 28 memo. “I also welcome that conversation. Fair treatment has to be the foundation of the diverse and equitable newsroom we are building.”

Further connecting the two cases, and perhaps even influencing what was likely an internal Times leak to The Daily Beast about a typically confidential personnel matter, is the fact that McNeil himself starred on The Daily literally the two days before the Beast story ran. Times journalists, reflecting the zeitgeist of modern newsrooms, place an exalted emphasis on the value of their “platforms,” and The Daily is among the paper’s most prestigious.

“Despite The Times’s seeming commitment to diversity and inclusion,” Times staffers wrote in their letter, “we have given a prominent platform—a critical beat covering a pandemic disproportionately affecting people of color—to someone who chose to use language that is offensive and unacceptable by any newsroom’s standards.”

Mills in his resignation letter emphasized that his decision was not over the Caliphate controversy, but the way that his past workplace behavior was being re-scrutinized and tendentiously characterized, including publicly by his own colleagues.

“The allegations on Twitter quickly escalated to the point where my actual shortcomings and past mistakes were replaced with gross exaggerations and baseless claims,” he maintained. “Several people have even alleged that I am a predator and a dangerous threat to my colleagues. I have been transformed into a symbol of larger societal evils. As a journalist, it has been especially discouraging and upsetting to see fellow journalists make such claims or retweet them…. As the pressure of this online campaign has grown to encompass some staffers of The Times, it has led to a climate where, even though I still love the mission of this important institution, I feel it is in the best interest of both myself and my team that I leave the company at this time.”

McNeil’s resignation letter, meanwhile, exudes the unsettling aroma of a struggle session.

“Originally, I thought the context in which I used this ugly word could be defended. I now realize that it cannot,” he wrote. “It is deeply offensive and hurtful. The fact that I even thought that I could defend it itself showed extraordinarily bad judgment. For that I apologize….My lapse of judgment has hurt my colleagues in Science, the hundreds of people who trusted me to work with them closely during this pandemic, the team at ‘The Daily’ that turned to me during this frightening year, and the whole institution, which put its confidence in me and expected better.”

If McNeil thought his prostration would engender grace from his workplace executioners, he was likely mistaken, going by this article from NPR media reporter David Folkenflik:

In each case, however, the actions of Times news leaders appeared to baffle many of their colleagues. For several who spoke to NPR, it was the fact these circumstances were allowed to fester for so long. For others, the reversals defied common sense.

In the words of one knowledgeable Times newsroom staffer, who spoke on condition of anonymity, “two boils were lanced today.”

These developments have import far beyond midtown Manhattan. The collapse of the use-mention distinction with certain words (evident in the Times‘ own pre-firing headline about how McNeil had “used” a “racial slur”), combined with a zero-tolerance approach toward offenders who haven’t caught up to the new rules, has been a growing phenomenon in and outside of media for several years now. As I wrote in a 2019 piece,

John Schnatter, the outspoken conservative founder of pizza chain Papa John’s, was forced to resign as chairman of his own company in 2018 after vividly describing acts of racist violence during a role-playing exercise that was designed to increase workplace sensitivity. Netflix fired Chief Communications Officer Jonathan Friedland that year not for being a racist, but by using the n-word in a company meeting about what words to avoid. A 23-year-old Chipotle employee named Dominique Moran was fired in late 2018 after a video went viral of her telling two black customers, “You gotta pay ’cause you never have money when you come in.” (It turned out later that one of the men indeed specialized in making videos of himself dining and dashing from restaurants, after which Chipotle offered Moran her job back. She declined.)

You can get suspended from university jobs for even saying words that sound like a racial slur, but are not. Placing that level of consequence-heavy fraughtness on speech does not encourage productive conversations about negative collective demonization of certain groups based on their immutable characteristics.

Scores of professional journalists have asserted publicly as a matter of plain fact that Donald McNeil is a “racist,” one of the most grave accusations in contemporary life. This is the extent of his bosses’ generosity toward his career, after their abrupt, pressure-induced reversal of disciplinary policy: “Donald joined The Times in 1976 and has done much good reporting over four decades. But we feel that this is the next right step.”

I have almost never used the N-word in my private life, let alone in my public work. (It is not hard to find video of me on television wincing at its mention.) I do not seethe with even one drop of resentment that it would probably be frowned upon if I walked down the street shouting N.W.A. lyrics. But on those few occasions that I have written the word, it was not to “use a racial slur,” it was to highlight the too-common evil of racism in my childhood environment, and to attempt to have an honest conversation about where we are today.

It is gratifying to work for a publication that not only values free speech, but considers the subject a core coverage area. What’s truly regretful, even alarming, is that that approach has become the exception, not the rule, in modern journalism.

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The Seattle Seahawks won’t be playing in the Super Bowl this weekend, but the team accomplished something this year that no other National Football League (NFL) franchise did. Not a single Seahawks player or coach tested positive for COVID-19.

What is perhaps even more remarkable than Seattle’s perfect season is what that means the rest of the league endured during the past few months. When the NFL season comes to an end on Sunday night, the league will have survived potentially destabilizing outbreaks within 31 of its 32 locker rooms—at a time when cases and deaths were spiking across the United States. But the NFL reached its championship game without having to cancel a single one of the 269 scheduled games in the regular season and playoffs—and, most importantly, without any deaths due to the virus.

The NFL accomplished that feat with the help of nearly 1 million COVID-19 tests conducted since August 1, strict protocols for players and staff, a robust contact-tracing system that intercepted potential outbreaks, and (if we’re being totally honest) probably a bit of good luck too. In staring down the virus’s blitz, the NFL showed that it is possible to balance caution and continuity—that even before a vaccine is widely distributed it is possible to slow COVID-19’s spread without shutting everything down.

Along the way, the league also challenged a core tenet of the public health community’s understanding of how COVID-19 spreads.

As The Wall Street Journal reported on Friday, a mid-October outbreak in the Tennessee Titans’ locker room proved stubbornly difficult to contain under existing protocols that assumed someone should be considered to have been “exposed” to the virus only if they’d been within six feet of an infected person for more than 15 minutes. But most of the 21 people within the Titans organization who eventually tested positive had no direct interactions with one another for that length of time.

Thanks to the resources the NFL brought to bear against the disease—ESPN reports that COVID-19 countermeasures cost the league more than $100 million—the league’s medical officials were eventually able to conclude that the six-feet, 15-minute guidelines from the Centers for Disease Control and Prevention (CDC) were unreliable.

In response, the NFL updated its protocols with more nuance. “A masked encounter outdoors could then be treated differently than an unmasked shared car ride, for instance,” write WSJ reporters Andrew Beaton and Louise Radnofsky. “The NFL told teams to take meetings virtual, avoid indoor gatherings, even if they were distanced and quit eating together.”

In short, the league discovered that COVID-19 was even more spreadable than the scientific consensus believed in mid-October. It adapted, took necessary countermeasures, and pressed forward.

It’s fair to point out, of course, that even the wealthiest Americans and most successful businesses would have a difficult time replicating the NFL’s intensive testing-and-tracing regime. Still, what the league uncovered offers a potential guide for the rest of us as we navigate what are hopefully the final months of the pandemic. After a year of sometimes contradictory, often confusing, and frequently counterproductive instructions and orders from officials, the NFL offers an example not only of how to keep the games going during unusual circumstances but of the mental fortitude necessary to combat an evolving health threat.

It didn’t always work perfectly. The Denver Broncos took the field in late November without a quarterback—a kind of important position in football—after all three of theirs tested positive in the days before a game. They lost by 28 after having a backup wide receiver who hadn’t played QB since high school fill in under center. A Thanksgiving game between the Pittsburgh Steelers and Baltimore Ravens was postponed from Thursday to Sunday, then to Tuesday, and eventually played on Wednesday afternoon after a COVID-19 outbreak blew through the Ravens’ locker room. Players in isolation were forced to find interesting new ways to practice, like the Cleveland Browns’ lineman who prepared for a playoff game by practicing with his girlfriend in an apartment building parking lot.

A total of 15 games were postponed or rescheduled during the regular season, and 724 positive tests sidelined players and coaches at various points. Even in places where fans were allowed to attend games, restrictions on stadium capacity made it seem like every team was suffering through a terrible season. The lead-up to this week’s Super Bowl hasn’t included the usual pomp.

It wasn’t a perfect season, but it worked—and it worked better than many public health experts expected.

Eric Rubenstein, an assistant professor of epidemiology at the Boston University School of Public Health, told ESPN this week that most professionals in his field were “suspicious” of the NFL’s plans to conduct what was essentially a normal football season—no “bubbles” for players and coaches, teams playing in their home stadiums, and traveling back-and-forth across the country for games.

“But in the end,” Rubenstein said, “the lack of real serious morbidity and sickness is evidence that what they did worked for the people they cared about.”

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Last night, a divided the Supreme Court enjoined the enforcement of California’s prohibition on indoor worship services due to Covid-19 in South Bay United Pentecostal Church v. Newsom. The Court effectively split 3-3-3. Three justices would have denied all relief (Kagan, Sotomayor, and Breyer), and three justices (Gorsuch, Thomas, and Alito, albeit to a slightly lesser degree) would have gone farther and enjoined additional portions of California’s Covid restrictions on houses of worship. The Court’s grant of partial relief pending the petition for certiorari was endorsed by the three remaining justices (Roberts, Barrett, and Kavanaugh).

My co-blogger Josh Blackman has a compete rundown of the opinions below. Among the opinions was Justice Amy Coney Barrett’s Supreme Court debut. She authored a short opinion concurring in the partial grant of application for injunctive relief, joined by Justice Kavanaugh. This was her first signed opinion since joining the Court last fall.

It is very brief, so here it is:

I agree with JUSTICE GORSUCH’s statement, save its contention that the Court should enjoin California’s prohibition on singing and chanting during indoor services. The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record. As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue. As the order notes, however, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.

It is common for a justice’s first majority opinion to involve a relatively minor matter. The junior-most justice is not going to get her choice of cases, and Chiefs often assign relatively sleepy and non-contentious matters for a new justice’s debut. Yet new justices can still write separately, and Justice Barrett chose to do so here, in a case off the Court’s shadow docket, before writing her first majority. This may be unusual, but it’s hardly unprecedented.

Fun fact: Chief Justice Roberts’ first opinion as a judge on the U.S. Court of Appeals for the D.C. Circuit was an opinion dissenting from a denial of rehearing en banc.

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Last week, dozens of food industry groups, many of which represent key cogs in the domestic and international food industry, released an “urgent call” to President Joe Biden and European Union (E.U.) Commissioner Ursula von der Leyen to work together to repeal retaliatory trade tariffs that have helped raise food prices and harmed consumers and food producers alike. 

The groups, based in the U.S. and Europe, urged von der Leyen and Biden to immediately suspend the tariffs because of the economic damage they cause and “to help re-establish a cooperative Trans-Atlantic trading relationship.”

The joint call to lift the tariffs and renew that relationship is a subtweet-style reference to former President Donald Trump, whose antagonistic nature, nationalist bent, and love of tariffs (he dubbed himself “tariff man“) drew a wedge between traditional trading partners America and Europe. 

The food tariffs in question arose after the World Trade Organization determined both that the U.S. had provided illegal subsidies to Boeing, the U.S.-based airplane manufacturer, and that the E.U. had provided similar illegal subsidies to Airbus, the E.U.-based airplane manufacturer that is Boeing’s chief competitor. As the (mostly) food-industry parties rightly note in their letter to Biden and von der Leyen, punishing the food industry and the hundreds of millions of consumers who rely on these businesses in the U.S. and E.U. is not only foolhardy, it’s “wholly unrelated” to the dispute over airplane subsidies.

The 72 signatories, made up of representatives from U.S.- and EU-based interests, include fruit and juice makers, bakers, wine and spirits makers, wheat growers, fisheries groups, frozen food makers, and groups representing farmers who grow, pack, and ship everything from sweet potatoes to soybeans, citrus to rice, and cranberry to blueberries.

What’s wrong with tariffs? As I explained in a 2018 column, tariffs “cost jobs; hurt domestic and foreign producers, consumers, and taxpayers; put the petty interests of government over those of the public, and are prone to spinning out of control.“

Those impacts aren’t hypothetical. When Trump’s trade war hurt American farmers, the president simply ordered the government to write checks to those farmers—”Trump money,” as it became known—in order to cushion the blow. While that stopgap measure may have been fine for some U.S. farmers, it didn’t help consumers (or taxpayers, for that matter) one bit.

In fact, food inflation—which many (me included) predicted would result from Trump’s misguided policies—is a growing problem. Data show domestic food prices rose gradually in the U.S. during the Trump administration, before ultimately doubling during the pandemic, which devastated domestic and international food supply chains. Notably, the percent growth in food prices in 2020, 3.9 percent, also outpaced inflation in other areas.

These high prices are a problem that isn’t going away on its own. In December, The Economist reported on still-surging food prices. And this week, Successful Farming reported that a key global food index hit its highest number in more than six years. Worse, reports elsewhere predict global food prices will continue to climb.

Amid these rising food prices, the Trump administration’s tariffs on E.U. foodstuffs aren’t the only such policies under review. Food industry groups also hope Biden will lift retaliatory U.S. tariffs on China. Last week, a Biden administration spokesperson said they are “evaluating” tariffs on China.

While not all of the aforementioned food-price increases may be traced to tariffs, they’re a key part of the problem. Getting rid of those tariffs, in turn, is an important way to help address the problem.

After Biden won the U.S. presidential election in November, I urged him to repeal all of Trump’s misguided food tariffs. Just weeks into his administration, Biden has an important choice to make. But it’s also an easy choice: He should help American farmers and food producers, consumers, and taxpayers by lifting all of the Trump administration’s food tariffs.

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2/6/1858: Justice Mahlon Pittney’s birthday.

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It’s snuggly time with your little one, who is not even in kindergarten yet. His little head rests against your shoulder as you open up a picture book. “See?” you say, pointing not to the furry bunny or diabolical cat or tree that keeps amputating herself. “These are the words on the page. This sentence has seven words. This dot is called a period, and it shows the end of a sentence.”

At least, that’s what you’d do if you followed the stultifying advice in a recent Parents magazine piece on how to “Supercharge Every Storytime.” And that’s what we’re here to talk about today: parents who believe they must supercharge every story time, and all the rest of the time they spend with their kids as well.

These parents seem to believe that home must be just like school. And I’m not talking about homeschooling or COVID-19 remote learning. I’m talking about the way parents have started to think of themselves as actual teachers and their kids as students.

Haven’t parents always taught their kids? Yes, of course, says anthropologist David Lancy, author of Raising Children: Surprising Insights From Other Cultures (Cambridge University Press). What’s different today is that interactions at home are modeled on what goes on in the classroom, where an adult instructs and a student sits and (with any luck) soaks it up.

That is actually a pretty new teaching method, historically speaking. Until public schools became popular in the 19th century and then ubiquitous in the 20th, kids mostly learned what they needed to know by watching and imitating others. Their teachers were everywhere and everyone, including their friends and siblings. But once school-based education became the norm, we forgot that kids learn from other kids, from helping out, and from playing.

Even in the 1950s, when Lancy was growing up, school didn’t play such a huge role in childrens’ lives. Once the bell rang at 3 p.m., pupils could go off and not think about school until the next day. There wasn’t much homework. And unless a kid was failing, parents weren’t involved with it.

But in the last generation or two, Lancy observes, school has started seeping into the rest of kids’ experiences. Instead of playing pickup games, they enroll in organized leagues coached—”taught”—by adults. Saturdays, too, are for professionalized activities. Most disturbingly, the new conventional wisdom holds that the parent-child relationship itself can be “optimized” if only the parent acts more like a teacher.

That’s why Parents could publish a two-page piece on how to read to your kid—something most of us could probably have muddled through without instructions. “I’m a mom and a literacy specialist,” the subtitle says, “and I’m here to share my secrets.” That’s the part parents don’t know: how to read to their kids like a teacher. Thanks to articles like this one, and a million educational toys, and a mound of homework that parents are supposed to oversee from kindergarten through college, adults are getting the message that it’s not enough to be a plain old parent.

“There’s a cultural idea that that is how you should treat kids, and it’s reinforced everywhere,” says Dorsa Amir, a postdoc in evolutionary anthropology at Boston College. “It is really hard to make changes at the household level when there’s an entire cultural apparatus suggesting something else.”

Peter Gray, author of 2013’s Free to Learn, calls this “a schoolish view of child development”:  the notion that children learn and develop best when they are carefully taught by adults, and that whatever children do on their own—playing, watching, thinking, dreaming—is a waste of time because there’s no one there to guide and perfect it.

Lancy, who has traveled the world studying how kids learn on their own, is now a granddad. His daughter, like everyone else, is buying brain-boosting toys for her toddler. She sits on the floor with the girl, says Lancy, “and she’s telling her what the shapes are and demonstrating how they go in…”

This is not evil or cruel. It is simply what today’s parents believe they must do: make every second into school. What’s lost is the faith that our kids’ innate curiosity is the greatest education engine ever.

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