Tag: in-the-news

A new song by Belarusian musician Max Korzh—in Russian but with pretty accurate English subtitles—with over 1.7M views on YouTube and Instagram since July 15; I take it that it’s addressed to other Russians and Belarusians. The song’s title is “protect her,” and the “her” refers to one’s soul (as in the lines that I quote in the title of the post); here’s the full stanza in which this line is contained (for more, see the subtitles of the song itself, or if you know Russian, the Russian lyrics):

Тhe beasts аre raging on the screen
Brother, don’t take someone else’s—it’s not yours
In front of you flashes someone’s life
We didn’t give it, and it’s not for us to destroy
Youngster, this time everything is serious
They want to take your soul, don’t give it away
Remember what I taught you
Don’t surrender, so long as you have the strength

As I noted in my earlier post about Korzh’s “he is right who is defending his home” song, I thought Korzh’s anti-war position was especially noteworthy given that he apparently still lives in Belarus, and has had extensive plans to continue performing in Russia (though who knows whether that will still happen).

The post "They Want to Take Your Soul / Don't Give It Away / … Don't Surrender, So Long as You Have the Strength" appeared first on Reason.com.

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[I’m working on a draft article called When Are Lies Constitutionally Protected?, and I thought I’d serialize it here, since I still have plenty of time to improve it; I’d love to hear your thoughts on it! (You can also read the whole article here; all the posts about it will go into this thread.) I began with a brief discussion of constitutionally unprotected lies, and turn here to constitutionally protected ones.]

But some lies, the Court told us, are indeed constitutionally protected—again, not just when they are said without “actual malice,” but even if the speaker knows the statements are false. This includes “false statements about philosophy, religion, history, the social sciences, the arts, and the like,” at least “in many contexts.” (I assume physical sciences would be covered as well.[2]) More broadly, this may include lies about any matters that are not “easily verifiable,” or where “it is perilous to permit the state to be the arbiter of truth.”

Five of the Justices in United States v. Alvarez took this view: Justices Breyer and Kagan in the concurrence and Justices Alito, Scalia, and Thomas in the dissent. And it seems likely that the four Justices in the plurality, who generally took a more speech-protective view than the concurrence or the dissent, would have agreed.

When it came to the lies prohibited by the statute involved in Alvarez itself—lies about having been awarded military decorations—the Justices, put together, appeared to apply intermediate scrutiny. The four-Justice plurality would have applied strict scrutiny, but the swing votes in the concurrence applied intermediate scrutiny, and the three dissenters would have found those lies to be categorically unprotected. But as to lies about philosophy, history, science, and the like, a majority of Justices endorsed categorical protection.

And of course in New York Times v. Sullivan the Court held that “prosecutions for libel on government”—in context, including civil liability for such libel—”have [no] place in the American system of jurisprudence.”[5] That included quite specific allegations, such as claims that the police have arrested Martin Luther King, Jr. seven times. The allegations were not a libel of Sullivan, the Court held, because they weren’t sufficiently “of and concerning him”; and they couldn’t be a libel of the city, because that would constitute an unconstitutional seditious libel claim.

The boundaries of this unprotected zone, however, are not defined, though the recent concern about “fake news” makes those boundaries quite important. Courts are sharply split, for instance, on whether the government may generally punish lies in an election campaign.[6]  One court decision has rejected claims of liability for alleged lies about vaccines,[7] but without discussing in detail whether such liability can be upheld on the theory that (to quote Alvarez) it involves “legally cognizable harm associated with a false statement”[8]—in that case, physical injury caused by a person’s believing the false statement.

Of course, the concern about “fake news” and the harms it can cause, both to society broadly and to particular people, is hardly new. Since 2020, many people have condemned false claims of election misconduct on the grounds that those claims damage democracy, and can indeed lead to insurrections.[9] But similar concerns (though not about election results in particular) date back to the debate over the Sedition Act of 1798. Justice Chase’s instructions to the jury in United States v. Cooper, for instance, defended seditious libel prosecutions on the grounds that:

If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government.[10]

Likewise, Justice Iredell in Case of Fries (1799) reasoned that the Fries Rebellion happened because “the government had been vilely misrepresented, and made to appear to them in a character directly the reverse of what they deserved.”[11] “In consequence of such misrepresentations, a civil war had nearly desolated our country, and a certain expense of near two millions of dollars was actually incurred, which might be deemed the price of libels.” And this showed that seditious libel prosecutions were necessary:

Men who are at a distance from the source of information must rely almost altogether on the accounts they receive from others…. [If those] accounts are false, the best head and the best heart cannot be proof against their influence; nor is it possible to calculate the combined effect of innumerable artifices, either by direct falsehood, or invidious insinuations, told day by day ….

Such being unquestionably the case, can it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people, with an express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow? …

Iredell reasoned that falsehoods “intended to destroy confidence in government altogether, and thus induce disobedience to every act of it” had to be punishable. And the need to punish libel in a republic was especially great

because in a republic more is dependent on the good opinion of the people for its support, as they are, directly or indirectly, the origin of all authority, which of course must receive its bias from them. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust.

Update the language and the examples, and you can see an argument that could easily have been made in 2021.

A similar concern about harmful lies arose during World War I, when the Espionage Act of 1917 made it a crime to, among other things, “wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies.”[15] The Court upheld a conviction under this statute in Schaefer v. United States,[16] reasoning in part that the First Amendment did not extend to “weaken[ing] or debas[ing]” the “morale of the armies” through “question or calumny of the motives of authority.”

The statements about the motivations for the war in the German-language newspaper in that case, the Court held, were “deliberate and wilfully false, the purpose being to represent that the war was not demanded by the people but was the result of the machinations of executive power, and thus to arouse resentment to it and what it would demand of ardor and effort.” And other statements, the Court concluded, deliberately mistranslated a statement by Senator Robert LaFollette: LaFollette had warned of “bread lines” that might happen as a result of the war, but the newspaper rendered this as “bread riots.”

Justice Brandeis, joined by Justice Holmes, didn’t quarrel with the constitutionality of the statute, but concluded that the statute had to be read as limited to

[w]ilfully untrue statements which might mislead the people as to the financial condition of the Government and thereby embarrass it; as to the adequacy of the preparations for war or the support of the forces; as to the sufficiency of the food supply; or wilfully untrue statements or reports of military operations which might mislead public opinion as to the competency of the army or navy or its leaders; or wilfully untrue statements or reports which might mislead officials in the execution of the law, or military authorities in the disposition of the forces.

Reading it more broadly, as he thought the majority did, threatened the First Amendment:

To hold that such harmless additions to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution will doubtless discourage criticism of the policies of the Government. To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press ….

And, he reasoned, the rationale would apply in peacetime as well:

In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.

Today, I expect that the “no seditious libel prosecutions” holding of Sullivan would preclude arguments such as those in Cooper and Fries, and likely even those as in Schaefer. But those arguments should still be remembered, if only as cautionary tales.

[* * *]

Tomorrow: How can we make sense of the line between punishable lies and unpublishable lies. 

[2] Justice Alito’s arguments for protecting speech about the social sciences, quoted in Part III.A below, apply equally  to physical sciences.

[5] 376 U.S. at 273–76; see also Rosenblatt v. Baer, 383 U.S 75, 81 (1966) (holding that “the Constitution does not tolerate in any form” “prosecutions for libel on government”).

[6] A few cases have allowed the punishment of such lies. In re Chmura, 608 N.W.2d 31 (Mich. 2000); State v. Davis, 27 Ohio App. 3d 65 (1985). A few more have rejected it. Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016); Commonwealth v. Lucas, 472 Mass. 387 (2015); 281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014); State ex rel. Public Disclosure Comm’n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998). See generally William P. Marshall, False Campaign Speech and the First Amendment, 153 U. Pa. L. Rev. 285 (2004); Frederick Schauer, Facts and the First Amendment, 57 UCLA L. Rev. 897, 913–14 (2010); Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. Rev. 1107, 1119–22 (2006); Richard L. Hasen, A Constitutional Right to Lie in Campaigns and Elections?, 74 Mont. L. Rev. 53 (2013); Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It ch. 3 (2022).

[7] Washington League for Increased Transparency & Ethics v. Fox News, 19 Wash. App. 2d 1006 (2021).

[8] 567 U.S. at 719 (plurality opin.).

[9] See, e.g., Eugene Volokh, Seditious Libel, Today and 225 Years Ago, Volokh Conspiracy (Reason), Jan. 10, 2022, 12:23 pm, https://ift.tt/m8yTqC5 (quoting and discussing  Washington Governor’s  proposal to criminalize “candidates and elected officials … knowingly [lying] about elections” “for the purpose of undermining the election process or results” when the statements “are likely to incite or cause lawlessness”); Eugene Volokh, Michigan AG’s #DetroitLeaks Takedown Demand, and Seditious Libel, Volokh Conspiracy (Reason), Nov. 10, 2020, 4:52 pm, https://ift.tt/0fp2YVv (quoting and discussing Michigan Attorney General’s letter demanding—on pain of “criminal prosecution”—the removal of materials on the grounds that it “contain[s] false and misleading information pertaining to Michigan elections,” referring to claims about past elections and not details on how to vote in future elections).

[10] United States v. Cooper, 25 F. Cas. 631, 639 (C.C.D. Pa. 1800).

[11] Case of Fries, 9 F. Cas. 826, 1799 U.S. App. Lexis 35, *31 (C.C.D. Pa. 1799). Iredell was defending the Sedition Act of 1798, though Fries wasn’t tried under that Act.

[15] Espionage Act of 1917, sec. 3.

[16] 251 U.S. 466 (1920).

The post When Are Lies Constitutionally Protected?: Unpunishable Lies appeared first on Reason.com.

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As regular VC readers know, I wrote an article on the modern history of government racial classification, which I expanded into a much longer book, Classified: The Untold Story of Racial Classification in America. Readers have gotten a preview of the book in a series of blog posts I wrote arising out of my research, but if you have been waiting for the book itself, well, wait no more! Today is release day.

To celebrate, if you buy the book today and email me the receipt (dbernste at gmu dot edu) and your address, I will send you a signed copy of one of my previous books, either Rehabilitating Lochner or You Can’t Say That! I have many more copies of the latter than the former, so if you want a copy of the Lochner book, act fast. (Please note that I have a busy travel schedule coming up, so you may not receive your book until mid-August.)

And just so those of you who preordered the book don’t feel left out, if you preordered send me your receipt, your address, and which book you want, and I will send you a  signed copy.

Will you like Classified? Well, I’m not objective, but here from the left, is liberal University of Texas law professor Sandy Levinson:

David Bernstein has written an illuminating, thoughtful, and often troubling book about the history of racial classifications in American law. This history underscores the validity of Oliver Wendell Holmes’s dictum that ‘experience,’ rather than ‘logic,’ dictates the actual development of law, for Bernstein demonstrates the extent to which the adoption of racial (or, more commonly ‘ethnic’) classifications has been responsive far more to systematic political pressures rather than the application of a coherent overarching theory. Even (or especially) supporters of ‘affirmative action,’ as I ambivalently continue to be, will benefit enormously from confronting the material that Bernstein carefully presents. It truly deserves a wide readership and, just as importantly, respectful discussion.

And from the right, George Will:

The nation urgently needs what David E. Bernstein here provides: a lucid explanation of the long and tangled intersection of racial classifications and the law. With the intellectual boldness and clarity that he brought to Rehabilitating Lochner, he points to a path from today’s tensions to a less angry, more sophisticated future.

And from more or less the center, Stuart Taylor:

David E. Bernstein proves ably and conclusively that the familiar legal classifications for racial and ethnic groups used by the federal and state governments, census-takers, medical regulators, racial-preference dispensers, and others are arbitrary to an extreme. The standard classifications — Hispanic, American Indian, black, white, and Asian or Pacific Islander — combine hundreds of vastly disparate ethnic groups into a handful of sprawling categories. They are not based on science, biology, genetics, or anthropology. They are divisive. And they are exploited by “identity entrepreneurs,” who claim a minority identity for economic gain.

The post Publication Day for Classified, and a Special Offer for Our Readers appeared first on Reason.com.

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7/19/1949: Justice Frank Murphy dies.

The post Today in Supreme Court History: July 19, 1949 appeared first on Reason.com.

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A U.S. Secret Service agent was sent home early from Israel after being detained by police in Jerusalem after a woman claimed he assaulted her. The agent and a colleague were reportedly drinking at a bar and became loud and rowdy. The woman claimed she told them they were behaving inappropriately, and then he pushed or hit her. No charges were filed against the agent. The agent was part of a group accompanying President Joe Biden on a visit to the Middle East. He has been suspended pending investigation, the Secret Service said in a statement.

The post Brickbat: The Ugly American appeared first on Reason.com.

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From Judge Dale Drozd’s opinion in Clifton v. U.S. DOJ (E.D. Cal.), filed Friday:

In 2001, plaintiff was in eighth grade at Mt. Vernon Middle School in Los Angeles, California. He was thirteen years old at the time. Because plaintiff’s mother had passed away and he never knew his father, plaintiff then lived with his grandmother. His grandmother’s husband—plaintiff’s step-grandfather—was physically and mentally abusive toward both plaintiff and his grandmother. One day in June of 2001, while at an after-school program, plaintiff made comments about “what he would like to do toward his step-grandfather in order to protect himself and his grandmother.”

Plaintiff never directly threatened anyone nor took any action to harm his step-grandfather. Nevertheless, the school called a Psychiatric Emergency Team (“PET”), which consisted of licensed mental health clinicians approved by the County of Los Angeles Department of Mental Health to provide Welfare and Institutions Code §§ 5150 and 5585 evaluations. Upon evaluation by the PET, plaintiff was hospitalized for mental health treatment at Gateways Hospital and Mental Health Center in Los Angeles, California for 15 days—from June 12 through June 27, 2001. Although plaintiff was initially hospitalized for only 72 hours pursuant to § 5150, his hospitalization was extended by 14 days for intensive treatment pursuant to § 5250.

Upon his release from the hospital, plaintiff was not prescribed any continuing medication, nor was he required to receive any further psychiatric treatment, including therapy or counselling. Plaintiff alleges that he was never notified of his right to seek judicial review of an involuntary hold and that he was never informed of any long-term repercussions as a result of his psychiatric hold. Nevertheless, plaintiff lost his private capacity to own a firearm as a result of 18 U.S.C. § 922(g), which prohibits an individual who has been involuntarily committed to a mental institution from owning, possessing, using, or purchasing a firearm or ammunition. Notably, 18 U.S.C. § 925(a)(1) provides an exception to this firearms ban under federal law for state actors acting in their official capacity.

Plaintiff went on to graduate from high school and enlist in the United States Marine Corps in 2005. Under § 925(a)(1), plaintiff was permitted to handle a firearm during his time with the marines. Plaintiff completed three combat deployments before leaving active duty in 2013 and received an Honorable Discharge as a Sergeant. Subsequently, plaintiff was hired by the Federal Bureau of Prisons as a corrections officer in 2015. He remained in that position until April 2019, when he resigned in good standing. Plaintiff is informed and believes that both his service in the marines and his employment as a federal correctional officer required a complete background investigation that would have revealed his past hospitalization.

On April 8, 2019, the Fresno County Sheriff’s Office hired plaintiff as a correctional officer at the Fresno County Jail. Prior to being hired in this role, plaintiff underwent and passed a full psychological evaluation that confirmed he is mentally fit to possess and use a firearm. Then, in 2020, plaintiff applied for a “Deputy Sheriff I” position in the Fresno County Sheriff’s Office. This time, when Fresno County ran a background check, the California Department of Justice statewide telecommunications system reported plaintiff’s prior hospitalization implicating his lifetime firearms ban under federal law.

As a result of plaintiff’s federal firearms restriction, the Fresno County Sheriff’s Office declined to sponsor plaintiff’s entry into the “Basic Academy under the California Commission on Peace Officer Standards and Training” (i.e., “POST Academy”) and represented that it will not consider plaintiff for a sworn deputy sheriff position. Thus, although 18 U.S.C. § 925(a) provides an exception to the firearms ban under 18 U.S.C. § 922(g)(4) for state or federal actors operating in their official capacity, Fresno County has declined to seek to apply that exception to plaintiff. Under state and federal law, there is no other proceeding that plaintiff can bring to expunge or extinguish his lifetime firearms restrictions under federal law.

Clifton challenged § 922(g)(4), in part based on the Second Amendment. The court began by observing that, in effect, § 922(g)(4) permanently bans gun possession by Californians who had ever been committed for mental health reasons, even long ago:

Federal law prohibits a person “who has been adjudicated as a mental defective or who has been committed to a mental institution” from possessing a firearm or ammunition. Federal law has provided two potential avenues for relief from this lifetime ban, but both have been foreclosed to all California residents.

First, prior to 1992, a person in plaintiff’s position could have applied to the United States Attorney General for relief under 18 U.S.C. § 925(c), which provided “for relief from the disabilities imposed by Federal laws with respect to the … possession of firearms.” Under 18 U.S.C. § 925(c), the Attorney General may, but is not required to, grant relief “if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” However, since 1992, Congress “has prohibited the use of funds to act on such applications, disabling the program.” “Congress defunded the program because, among other reasons, determining eligibility had proved to be ‘a very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made.'”

Second, the states may establish programs under 34 U.S.C. § 40915 to provide opportunities for relief from the prohibition imposed by § 922(g)(4). To qualify to do so, the state’s program must “permit[] a person who, pursuant to State law, … has been committed to a mental institution, to apply to the State for relief from the disabilities imposed by” 18 U.S.C. § 922(g)(4) and other laws. The program also must provide:

That a State court, board, commission, or other lawful authority shall grant relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities …, and the person’s record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

… “Thirty-one states and two tribal governments have established such programs, but California has not.” Specifically, California law does not require a determination “that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”

But the court concluded that Clifton’s hospitalization may have counted as a commitment under § 922(g)(4), because it didn’t involve a judicial evaluation of his mental health:

The court … concludes plaintiff has adequately alleged that his 2001 hospitalization does not constitute an involuntary commitment involving robust judicial involvement under § 922(g)(4). At the time of plaintiff’s hospitalization, California Welfare and Institutions Code § 5150 required the officer, staff person, or other professional who caused the person to be taken into custody to state the circumstances giving rise to probable cause that, because of a mental disorder, the person was a danger to others, himself, or gravely disabled, in a written application to the facility or hospital. However, “Section 5150 provided no hearing.” California Welfare and Institutions Code § 5250 then authorized hospital staff to certify a person for an additional 14 days of treatment, which is what plaintiff alleges occurred with respect to his hospitalization here….

Other federal circuit and district courts have concluded that similar procedures do not qualify as commitments under § 922(g)(4). For example, in Rehlander, the First Circuit concluded that temporary hospitalizations carried out by way of an ex parte procedure—not unlike the procedure alleged here pursuant to California Welfare & Institutions Code § 5250—did not constitute a commitment under the provisions of § 922(g)(4)…. Moreover, the two Ninth Circuit cases to address commitment procedures in the context of § 922(g)(4) both involved judicial determinations that the plaintiffs required institutionalization and in both cases the plaintiffs had been represented by counsel at those court proceedings…. Thus, the court concludes that plaintiff has adequately alleged that there was no “commitment” within the meaning of that word as used in § 922(g)(4)…. Of course, on summary judgment for instance, the evidence may establish that plaintiff’s 2001 certification did indeed include the level of judicial involvement necessary for § 922(g)(4) to apply to him….

And the court briefly discussed, but didn’t resolve, the question whether § 922(g)(4) may be unconstitutional:

In D.C. v. Heller, the Supreme Court emphasized that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Defendants note that the Supreme Court “identified such prohibitions as ‘presumptively lawful,’ because they affect classes of individuals who, historically, have not had the right to keep and bear arms.” … [And Mai v. U.S. (9th Cir. 2020) held that, even as to] a plaintiff committed for mental health treatment as a minor[,] … § 922(g)(4)’s continued application did not violate the Second Amendment….

In [Mai,] the Ninth Circuit held that § 922(g)(4) was constitutional because “the Second Amendment allows categorical bans on groups of persons who presently pose an increased risk of violence.” The court reached this conclusion by applying intermediate scrutiny to § 922(g)(4)…. However, the Ninth Circuit’s Second Amendment jurisprudence has now at least arguably been somewhat cast into doubt due to the Supreme Court’s recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen. The majority opinion in that case suggests that the … intermediate scrutiny approach to certain Second Amendment challenges may no longer govern….

Nevertheless, the undersigned notes that in Justice Kavanaugh’s concurring opinion in Bruen, in which Chief Justice Roberts joined, it was stated that “[n]othing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ….” Moreover, the Supreme Court has previously recognized that in enacting § 922(g)(4), Congress sought “to keep firearms out of the hands of presumptively risky people.”

Based on the presumptive constitutionality of § 922(g)(4) due to the historical evidence supporting laws barring the mentally ill from owning firearms, the undersigned strongly believes that § 922(g)(4) would be upheld by the Supreme Court, regardless of any new, as of yet undefined and unapplied, interpretation methods developed in light of the decision in Bruen. That is not a question that this court must answer today. In fact, it would likely be irresponsible to do so in light of the many cases that will undoubtedly address both the holding in Bruen and how it is to be applied in this Circuit. Moreover, of course, neither party has briefed those issues in this case. Instead, because the court will deny defendants’ motion to dismiss as to plaintiff’s Second Amendment claim on the basis that plaintiff has adequately alleged that he was never “committed” for mental health treatment as that term is used in § 922(g)(4), the court need not address the constitutionality of § 922(g)(4) in this order. If—after further briefing and conducting of discovery—the court is again faced with that question, it will address it at that time….

My tentative view: The Court in D.C. v. Heller did approve of “prohibitions on the possession of firearms by … the mentally ill,” but “the mentally ill” doesn’t mean “anyone who has ever been found to have mental problems.” Like the physically ill, “the mentally ill” generally refers to present illness, not long-past illness. (Nor do I know of any longstanding history of permanent disqualification of anyone who had ever been mentally ill.) And while past illness is often evidence of present illness, it seems to me that, to be constitutional, a prohibition has to provide for some sort of reevaluation and potentially recovery of gun rights, especially after many years have past—something that § 925(c) initially provided, but that it no longer does.

The post Second Amendment and People Briefly Hospitalized for Mental Health Reasons Long Ago appeared first on Reason.com.

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A bill working its way through the California Senate would prohibit large social media platforms from using “a design, feature, or affordance that the platform knew, or which by the exercise of reasonable care should have known, causes child users to become addicted to the platform.” The Social Media Platform Duty to Children Act has cleared the California Assembly, been amended in the Senate, and referred to the Appropriations Committee.

While the bill seems to address many of the concerns raised about teenagers and social media use, the bill erases the role of parents in determining what their kids can see and do online. 

The bill also establishes unclear rules and definitions seemingly meant to turn social media platforms into cash cows for prosecutors. If found to be violating the law, social media companies can face a civil penalty of up to $250,000 for each violation of a ban on “addicting” features. Companies can be prosecuted directly by the “Attorney General or by a district attorney, county counsel, or city attorney.”

It is now conventional wisdom that spending too much time on social media can be bad for kids. Social psychologist Jonathan Haidt argued in a 2021 Atlantic article that social media use is to blame for the increase in depression among adolescent girls. Haidt wrote that “From 2010 to 2014, rates of hospital admission for self-harm did not increase at all for women in their early 20s, or for boys or young men, but they doubled for girls ages 10 to 14.” 

However, whether social media is a symptom or a root cause of mood disorders for some teenagers is not settled science, writes Grayce Burns, a technology policy analyst with the Reason Foundation (the nonprofit that publishes this website). In June, she observed that conflicting studies about whether social media addiction is an actual addiction suggest that our collective anxiety about social media echoes past social panics about new technology. 

“When the printing press made reading accessible to the public, some individuals, the most prominent being famous British writer Vicesimus Knox, began to identify and condemn ‘reading mania’ in the late 1700s,” Burns wrote. “Like social media addiction today, ‘telephone addiction’ also had a formal definition and criteria that included being unable to be away from a phone for more than three hours without suffering ‘anxiety tremors.'”

California’s law has problems that extend from its shaky premise. It prohibits companies from including so-called addicting features but fails to list specific features and to state whether they must be addicting in isolation or in combination with other features or specific kinds of content. Rather than do the hard (if not impossible) work of writing specific regulations for what legislators claim is a real and specific problem, they want to hold social media platforms liable for any feature these companies “knew, or which by the exercise of reasonable care should have known” would cause child addiction.

What would happen if prosecutors decide that mere use of a social media platform leads to addiction in some percentage of children? Or if the content, and not app features, are the addicting draw? The way the bill is written currently, the answers to these questions are unclear. 

“It doesn’t make sense to identify the feature when it’s the content underlying it that may cause the problem,” Dylan Hoffman, a TechNet executive, told the Associated Press. He added that there “is a lot of innovation in this space to make sure that parents and kids are able to better control their social media usage.” 

With this bill, California is treating a parenting problem with a government regulation solution.

The post A California Bill Wants To Punish Social Media Companies for 'Addicting' Children appeared first on Reason.com.

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In this week’s The Reason Roundtable, Katherine Mangu-Ward returns alongside editors Peter Suderman, Nick Gillespie, and Matt Welch as they contemplate recent murmurs on the reinstatement of certain COVID-19 restrictions, as well as the general failures of the FDA.

1:25: Masks and COVID security theater

14:00: Abolish the FDA

28:00: Weekly Listener Question:

Bryan Caplan recently shared an old Salon article on Twitter, titled “Libertarians’ scary new star: Meet Bryan Caplan, the right’s next ‘great’ philosopher,” worrying that he was going to become too influential. Being a Salon piece, it was pretty awful, but one part in particular stuck out to me. “For most of its post-1945 history, libertarianism has lacked thinkers of its own, and its intellectual deficit frequently has been filled by government-hating businessmen with third-rate minds like Peter Thiel, the fatuous crackpot who founded PayPal, and the appallingly dumb Leonard Read.” As a libertarian who has done a fair amount of reading on the topics of liberty and capitalism, I was appalled at the ignorance, willful or not, of the writer, and it got me wondering: Who would the esteemed panel members cite as the most influential (or their favorite) post-war libertarian thinkers?

40:42: Lightning round highlights from this year’s FreedomFest in Las Vegas.

Mentioned in this podcast:

“Abolish the FDA,” by Katherine Mangu-Ward

“An Epidemic of Meddling,” by Jacob Sullum

“Rethinking the Social Responsibility of Business,” by Milton Friedman, John Mackey, and T.J. Rodgers

“Doctors Say Federal Bureaucracy Is Keeping Them From Adequately Treating Monkeypox,” by Scott Shackford

“Why Do So Few American Women Use IUDs?” by Liz Wolfe

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

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The post Return of Summer Security Theater? Also, Abolish the FDA. appeared first on Reason.com.

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Despite pledges from the Biden administration last year to combat processing delays and backlogs at U.S. immigration agencies, a new report published by Syracuse University finds that by the end of FY 2022 in September, over 6,000 lawsuits will have been filed against the federal government since September 2021 to compel action from U.S. immigration authorities. This is a 50 percent increase in lawsuits compared to the previous fiscal year. 

But President Joe Biden can only shoulder so much of the blame. Shortly after former President Donald Trump took office in January 2017, the federal government implemented a broad hiring freeze on all nonmilitary employees that lasted for several months. In February 2020, the Trump administration directly targeted U.S. Citizenship and Immigration Services (USCIS), freezing hiring for all nonasylum agent employees. Funded by the fees on paperwork submissions, USCIS’ revenue dried up during the COVID-19 pandemic as applications dwindled, prompting the administration to furlough three-quarters of the government’s immigration work force in the summer of 2020. Even though the furlough was resolved in August 2020 by Congress, many employees left the agency permanently, worried that it would become a permanent layoff. 

While Biden lifted that hiring freeze in March 2021, many experts say the effects will persist. “When you implement a hiring freeze, what you’re actually doing is shrinking more personnel,” Jorge Loweree, managing director of programs and strategy at the American Immigration Council, tells Reason. He notes that Trump’s actions did not lessen the agency’s load but merely stopped it from replacing workers lost to attrition. “USCIS has had to do essentially more work with less staff and fewer resources, which has led to a tremendous backlog across most form times.”

As Loweree points out, these delays can be incredibly pressing for refugees applying for asylum or temporary protected status (TPS). “Your application can take seven months, potentially well over a year to be adjudicated,” he said. “When your TPS designation is only in place for 18 months, that’s a significant problem because you end up receiving a benefit for a far shorter period of time.” 

A USCIS spokesperson pointed to what they see as promising trends in their processing ability: a 14 percent drop in the naturalization queue from January to September 2021, a reduction in the number of pending biometrics appointments from 1.4 million in January 2021 to 7,000 as of May 2022, and a full elimination of the “front-log” of cases awaiting intake processing that occurred in July 2021. They feel confident the agency will resolve these issues by the time it reaches its 95 percent hiring target by the end of 2022.

While staffing up may alleviate the federal government’s current bottleneck, no amount of USCIS employees can keep the country’s bad immigration system from working as designed. The larger problems with how we choose who can live here and for how long lie with U.S. immigration law and policy.

“Even if more agents are hired, aggressive streamlining will still be necessary,” David Bier, associate director of immigration studies at the Cato Institute, tells Reason in an email. “It can’t just be hiring more people without better systems.”

The post Thousands of Lawsuits Have Been Filed Over Wait Times, Backlogs at U.S. Citizenship and Immigration Services appeared first on Reason.com.

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The horrifying case of a 10-year-old Ohio rape victim who crossed the border to Indiana for an abortion understandably attracted national attention. According to her doctor, the girl was six weeks and three days into her pregnancy. That put her beyond the window allowed by an Ohio law that prohibits abortion after fetal cardiac activity can be detected, which typically happens around six weeks. Ohio’s ban makes an exception for a “medical emergency” but not for pregnancies resulting from rape or incest.

Such cases pose moral challenges to both opponents and supporters of abortion rights. Pro-life advocates who favor laws like Ohio’s must confront the disturbing implications of forcing women and girls to bear their attackers’ children. Pro-choice advocates, meanwhile, must contend with the counterargument that abortion in such circumstances compounds the original crime by victimizing another innocent person.

It was not hard to predict which side The New York Times would take in this debate. But a Times story published on Saturday, headlined “What New Abortion Bans Mean for the Youngest Patients,” misleadingly conflates the issue of rape-or-incest exceptions, which rarely apply, with the much broader issue of abortions obtained for other reasons.

The Times story begins with the Ohio case: “She was just 10 years old, so young that many people were horrified when they heard it, and others refused to believe it. But the ordeal of the child rape victim in Ohio who had to cross state lines for an abortion, and the ugly political fight that followed, have highlighted two uncomfortable facts.”

One of those “facts” seems incontrovertible: “New abortion bans are likely to have a pronounced impact on the youngest pregnant girls.” But the other “fact” is much more dubious: “Such pregnancies are not as rare as people think.”

Given the context, readers will tend to assume that Times reporters Dana Goldstein and Ava Sasani are talking about cases similar to the one they have just described. That impression is reinforced in the second paragraph, which focuses on rape-or-incest exceptions.

“New bans in nearly a dozen states do not make exceptions for rape or incest, leaving young adolescents—already among the most restricted in their abortion options—with less access to the procedure,” Goldstein and Sasani write. “Even in states with exemptions for rape and incest, requirements involving police reports and parental consent can be prohibitive for children and teenagers.”

The third paragraph also focuses on cases like the one in Ohio. “The situation out of Ohio is in no way unique,” Indiana obstetrician-gynecologist Katie McHugh, a board member of Physicians for Reproductive Health, tells the Times. “This is a situation that every abortion provider has seen before.”

But the rest of the story ranges far beyond that issue. Based on 2017 data collected by the pro-choice Guttmacher Institute, Goldstein and Sasani note, “there were 4,460 pregnancies among girls under 15, with about 44 percent ending in abortion.” That amounts to 1,962 abortions in this age group, or about 0.2 percent of the total in 2017.

As The Washington Post notes, “abortions performed on patients younger than 15 in the country are extremely rare.” And as Goldstein and Sasani concede, “It is unclear how often these pregnancies are the result of incest or rape.” While “children in this age group are generally below the age of sexual consent,” they note, “sexual contact between two similar-aged young teenagers is not always considered a crime,” and “some states allow children to marry with parental permission.”

After initially citing a 10-year-old rape victim, Goldstein and Sasani are now talking about abortions obtained by “young teenagers,” an unknown fraction of which may have involved pregnancies resulting from rape or incest. In the 27th paragraph, they finally present data that seem more relevant: In Texas, where a ban similar to Ohio’s took effect last September, “state records show over 200 children aged 15 and younger received abortions in 2021.” Goldstein and Sasani add that “one of those patients was 11 or younger, and 30 were 12 or 13 years old.”

In the second-most populous state, in other words, one girl who was about the age of the Ohio rape victim had an abortion in 2021, and the Times does not specify the circumstances of that pregnancy. Based on the Texas data, it looks like such cases are “as rare as people think,” contrary to what Goldstein and Sasani imply in the first paragraph.

None of this makes the Ohio case less appalling. Nor does it detract from the undeniable burdens that laws like Ohio’s impose on teenagers, or women of any age, who are forced either to carry an unwanted pregnancy or to seek an abortion elsewhere, regardless of how they became pregnant. But the specific issue raised by the Ohio case is the lack of an exception for rape or incest, which is how Goldstein and Sasani initially frame the story before expanding their focus. While that is a genuinely troubling issue, exaggerating its magnitude does a disservice to anyone trying to grapple with it honestly.

According to a 2005 Guttmacher Institute analysis of data from two surveys, 1 percent of women who had obtained abortions “indicated that they had been victims of rape, and less than half a percent said they became pregnant as a result of incest.” The two surveys involved a total of about 12,000 women, a fifth of whom were 19 or younger. Their seemingly relevant findings are notably missing from the Times story. While the article quotes a pro-life Oklahoma legislator who describes the Ohio case as “an incredibly rare instance,” it does not cite readily available data that back up her point.

Despite the rarity of such abortions, USA Today noted in 2019, “the battle over exceptions for [rape or incest] has garnered outsized attention in the national abortion debate.” The story quoted abortion-law historian Mary Ziegler, who said “exceptions for rape and incest are much more ‘symbolic than they are relevant,’ given that they don’t apply to the majority of women having abortions.”

Ziegler elaborated on the symbolic significance of the debate about such exceptions. While there once was a “consensus” that “if you didn’t include exceptions for rape and incest, politicians wouldn’t go for it, voters wouldn’t like it and the Supreme Court wouldn’t tolerate it,” she said, “what you see now is pro-life groups saying it’s no longer a political necessity.” Pro-choice groups, meanwhile, “see rape and incest exceptions as the canary in the coal mine when it comes to extremism. They argue [that] if you’re willing to abandon these exceptions, then there’s no saying when you’re going to stop.”

Now that the Supreme Court has decided that abortion bans are constitutionally tolerable, we have a clearer idea of how far pro-life politicians are willing to go. Some still see exceptions for rape or incest as either politically or morally obligatory. Utah’s ban, for example, includes such exceptions. But the Times counts “nearly a dozen” states with bans that apply even in those cases.

According to Gallup, more than three-quarters of Americans think abortion should be legal in the first trimester when a pregnancy results from rape or incest. That overwhelming majority includes many Americans who describe themselves as pro-life.

In 2019, when South Carolina approved a six-week ban that did not make exceptions for rape or incest, Nancy Mace, then a Republican state legislator and now a U.S. representative, vigorously objected, citing her own experience as a 16-year-old rape victim. “I’m pro-life,” she said. “I would choose life, and I would hope if it was my daughter she would choose life. But I also don’t believe it’s the government’s right in cases of rape or incest to tell a woman what she should do with her body. It’s abhorrent.”

President Joe Biden, weighing in on the Ohio case, unsurprisingly took a similar view. “She was forced to have to travel out of the state to Indiana to seek to terminate the pregnancy and maybe save her life,” Biden said. “Ten years old—10 years old!—raped, six weeks pregnant, already traumatized, was forced to travel to another state.”

The contrary argument, that a rapist’s crime does not justify sacrificing an innocent life, is logically consistent if you view abortion as tantamount to murder. But it is a tough sell, even among many people who are inclined to share that perspective.

James Bopp, general counsel at National Right to Life, addressed the Ohio case in an interview with Politico last week. If the 10-year-old girl had not obtained an abortion out of state, Bopp said, “she would have had the baby, and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child.”

Bopp added that the model legislation he wrote for his organization “does propose exceptions for rape and incest…because that is a pro-life position, but it’s not our ideal position. We don’t think, as heart-wrenching as those circumstances are, we don’t think we should devalue the life of the baby because of the sins of the father.” Kristan Hawkins, president of Students for Life of America likewise argues that “the violence of rape will not be cured by the violence of abortion.”

Wherever you come down on that issue, we should be clear-eyed about how common such situations are and avoid conflating them with the much more frequent cases where girls and women seek abortions for other reasons. In the broader abortion debate, focusing on rape victims, let alone 10-year-old rape victims, is just as misleading as focusing on late-term abortions, which likewise account for a tiny share of the total.

The post How Focusing on Rape-or-Incest Exceptions Distorts the Abortion Debate appeared first on Reason.com.

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