Tag: in-the-news

New legislation from Sen. Marco Rubio (R–Fla.) would make selling fentanyl used in a fatal overdose a federal crime punishable by the death penalty. Rubio’s bill is backed by a dozen other Republican senators, including Marsha Blackburn (Tenn.), Tom Cotton (Ark.), Ted Cruz (Texas), Joni Ernst (Iowa), and Josh Hawley (R-Mo.).

The bill (S.4876) would define selling fentanyl that leads to a fatal overdose as a form of first-degree murder under federal law. A first-degree murder conviction means life in prison at minimum, and possibly the death penalty.

Rubio and co. want people to think we have a fentanyl problem because our laws aren’t tough enough. But not only does selling fentanyl come with heavy penalties on its own, federal law already criminalizes the “distribution of fentanyl causing death” specifically, too.

Under current law, distributing fentanyl that causes death comes with a mandatory minimum sentence of 20 years in prison and a maximum sentence of life imprisonment (with no possibility of parole, since there is no parole in federal prison).

And yet plenty of people still sell fentanyl. It seems at some point, we have to admit that the threat of punishment—no matter how harsh—isn’t going to stop people from selling drugs, nor get America out of the mess we’ve gotten into with opioids.

Alas, as per usual, politicians’ response to the results of the drug war is…more drug war.

Rubio notes, correctly, that the synthetic opioid “fentanyl is killing Americans at a record high. This deadly drug is widespread throughout our country.”

But he leaves out the fact that fentanyl took off after the government cracked down on prescription painkillers, making legal—and much less deadly—opioids harder to get. He also omits the fact that a lot of fentanyl deaths come from people not knowing the heroin or other drugs they’re taking have been cut with fentanyl, or not knowing how to dose correctly with fentanyl versus heroin (the former can be much stronger). And the fact that part of the reason fentanyl is popular with drug dealers is because it’s more potent, which means they can smuggle more in the same volume container as other substances.

(“Alcohol prohibition shifted consumption from beer and wine toward distilled spirits. Drug prohibition gave us heroin instead of opium, fentanyl instead of heroin, and sometimes even-more-potent fentanyl analogs instead of fentanyl,” as my colleague Jacob Sullum puts it.)

A lot of fentanyl problems could be mitigated by decriminalizing drugs, or at least pulling back on prohibitionist tactics. If more drug users were able to buy from known sources, test their drugs for fentanyl, use at safe-injection sites, or take other harm-reduction steps, we might not wind up with so many overdose deaths. If people in pain could turn to prescription pills, we might not wind up with so many heroin and fentanyl users in the first place.

Instead, Senate Republicans want to simply say an eye for an eye—or an eye for a plea deal, more likely.

The idea of executing drug dealers as first-degree murderers even when they had no intention of killing anyone is draconian, yes. (So, too, the idea of putting them in prison for life.) The punishment isn’t proportionate to the crime, it sends a terrible message about criminal justice in America, and it’s ridiculous waste of state resources. It also seems unlikely that a judge would actually sentence someone to death for selling fentanyl.

The real benefit, for prosecutors, will be in being able to hang this draconian possibility over someone’s head in order to coerce them into taking a plea deal. It’s much easier to get someone to plead guilty and accept a few decades in prison if the alternative is life in prison or state-ordered execution.

The losers in this scenario aren’t just drug dealers but also drug users. Research suggests treating fatal overdoses as homicides makes people less likely to seek medical attention for those who overdose.

State laws treating drug sales that lead to fatal overdoses as murder have been on the books since the 1980s, but their use seems to have increased over the past decade, according to a report from the Drug Policy Alliance.

“Although legislators and prosecutors may portray such cases as a way to punish callous, death-dealing drug traffickers, the defendant is usually someone close to the decedent,” notes Sullum. “The upshot is that a defendant’s role in ‘distributing’ a drug may be limited to buying it for someone else, arranging a purchase, or sharing a stash. When money changes hands, the dealers are often selling just enough to finance their own habits.”

The post Selling Fentanyl Could Mean the Death Penalty Under New Rubio Bill appeared first on Reason.com.

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The Complaint in Doe v. University of Maryland, College Park (D. Md.) alleges:

After John Doe was fully exonerated of horrendous and malicious false allegations, the University of Maryland repeatedly refused to protect his rights as a student. The University allowed Doe to be publicly defamed as a rapist by students who worked closely with the University’s Title IX office. When Doe submitted his complaints to the University alleging violations of University policy, including retaliation and sexual harassment, the University ignored his complaints.

Doe sued the university under Title IX and the two students—who had then been co-Presidents (consuls?) of the UMD Preventing Sexual Assault group—for defamation and intentional infliction of emotional distress. But the defendant students then asked to be pseudonymized (which Doe agreed to, perhaps out of a desire to keep his own pseudonymous status):

Both Defendants take pride in their work on behalf of men and women victimized by conduct ranging from sexual assault to catcalling. They stand accused in this case of defamation committed with malice against the Plaintiff, a very serious allegation indeed.

Both Defendants just graduated from the University of Maryland, College Park. Defendant Two is still job hunting in her field. Defendant Three secured a job in her chosen field of public relations. Defendant Three, who has a less common name than many, was shocked to discover that a Google search of her name yields as the fifth entry, pleadings in this case. For Defendant Two, she shares her name with others with many online entries. Defendant Two is concerned that could change as the case progresses.

For both, however, searches on Google, PACER, Judiciary Case Search, etc. are all standard practices for many employers. They are at the beginning of their professional careers. They are greatly concerned about the potential impact on future employers because of these serious allegations which they absolutely reject. Defendant Two, in point of fact, defends these allegations in that she was simply uninvolved—distinct from Defendant Three who defends these allegations as simply wrong or grossly conflated.

And the court granted the motion, without a written opinion.

This is highly unusual.

Defendants, even ones accused of much more serious offenses than libel (e.g., sexual assault, embezzlement, even professional incompetence) generally have to proceed under their own names. And the parties’ consent is generally not enough to justify pseudonymization, because the public has an interest in knowing litigants’ identities:

Judicial hostility to a party’s use of a pseudonym springs from our Nation’s tradition of doing justice out in the open, neither “in a corner nor in any covert manner.” In defending that tradition, we have explained that “[p]ublic access to judicial records and documents allows the citizenry to ‘monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.'” “Identifying the parties to the proceeding is an important dimension of publicness.” That is because—to a certain degree—letting a party hide behind a pseudonym dims the public’s perception of the matter and frustrates its oversight of judicial performance.

Lacking knowledge of the parties’ names, the public could learn virtually nothing about a case outside the facts and arguments in the record. The record, though, is not the alpha and omega of public concern. To take one example of important extra-record data, the real-world aftermath of a suit will sometimes bear upon the assessment of whether justice was done. Another example is the kind of institutional rot that is scrubbed from the record: judicial conflicts of interest, ex parte contacts, and the like. Anonymizing the parties lowers the odds that journalists, activists, or other interested members of the public would catch wind of such mischief. See Globe Newspaper Co. v. Pokaski (1st Cir. 1989) (acknowledging “the contribution to governance of investigative reporting” regarding such matters).

An even thornier issue involves protecting the appearance of fairness in judicial proceedings. “Litigating behind a curtain creates a shroud of mystery, giving the impression that something secret is going on.” Secrecy breeds suspicion. Some may believe that a party’s name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up. It is no answer to dismiss such beliefs as conspiracy theories because “justice must satisfy the appearance of justice.” Distrust is toxic to the judiciary’s authority, which “depends in large measure on the public’s willingness to respect and follow its decisions.” A judicial system replete with Does and Roes invites cynicism and undermines public confidence in the courts’ work.

So what’s happening here? Perhaps courts are in practice applying a subtle “promising young man/woman” exception to the standard non-pseudonymity norm (which might help explain why a lot of Title IX plaintiffs who claim that they were wrongly found guilty of sexual assault have gotten pseudonymity, see pp. 1401-02 and Apps. 4A & 4B of my The Law of Pseudonymous Litigation article). But any such special exception strikes me as hard to justify. Surely it’s difficult to get a job as a young person when there are publicly accessible allegations against you, but it may be even more difficult to get such a job when one is (say) in one’s fifties and looking for a new job in one’s established career.

I should acknowledge, though, that at this point this is just pseudonymization in the caption; the earlier filings weren’t pseudonymized. Reporters, academics, and others who want to research the case can thus find the names of the defendants; and this will in turn help them, for instance, find the news stories that mention the defendants as student activists and discuss their work and their perspectives.

Perhaps this is a plausible compromise: The names aren’t hidden from researchers, but are less likely to come up in simple casual Google searches, and less likely to appear in any future published court opinion (see pp. 1423-25). On the other hand, the defendants’ motion signaled the possibility of future attempts to conceal the information more broadly (though perhaps such retroactive concealment would be difficult):

For the moment, Your Defendants will be satisfied with removing further use of their names from the public record. They will reserve the question of seeking a re-filing of pleadings to date and hope it is not needed in the future.

It will be interesting to see whether defendants seek such more comprehensive pseudonymization—and whether other defendants in similar cases will start to seek  pseudonymity as well.

Congratulations to John J. Condliffe of Levin & Gann, P.A., who obtained this unusual benefit for his client.

The post Pseudonymity for Libel Defendants (Former Co-Presidents of Campus Activist Group) in #TheyLied Claim appeared first on Reason.com.

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Film and TV adaptions of literary works typically take one of two paths.

They either try to be faithful to the events and themes of the source material, or they creatively reinvent the work to make a different point or even mock the original story. Denis Villeneuve’s Dune would be an example of the former. The 1997 adaption of Robert Heinlein’s Starship Troopers is in the latter camp.

Sitting somewhere in between these two poles is Amazon’s new The Rings of Power, which debuted earlier this month. The show depicts J.R.R. Tolkien’s writings about the pre–Lord of the Rings history of the fictional Middle Earth’s Second Age.

As someone who has only skimmed the appendixes at the end of The Return of the King, and not read the much lengthier, posthumously published Silmarillion, I can’t weigh in on the show’s fidelity to the Second Age’s history and characters.

The consensus seems to be the show is mostly succeeding at presenting a Middle Earth in its Second Age, in the words of National Review‘s Jack Butler, “at once familiar to viewers and novel.”

I can, however, weigh in on its faithfulness to a theme that bookends the story in The Lord of the Rings: Tolkien’s celebration of freedom against arbitrary government interference. Here too, it appears that The Rings of Power echoes the books’ anti-statism, but from a novel angle.

Notwithstanding all the wars and kings and whatnot, The Lord of the Rings is not primarily a political text. The real conflicts in the books either transcend the political to focus on a more elemental war of good and evil or center on internal personal struggles of virtue and vice.

Fleshing out any political themes requires some interpretive license.

It’s not helped by Tolkien’s real-world politics defying easy characterization beyond anti-modernism. The author described his own views as somewhere between anarchy and “unconstitutional” monarchy. One Twitter user speculated recently that the author would be a swing Green-Tory voter in the U.K.

Tolkien did rail explicitly against the evils of statism, something almost totally absent from his idyllic Shire. It’s a close-knit, largely closed community that manages to run itself in a remarkably anarchistic fashion.

“The Shire at this time had hardly any ‘government.’ Families for the most part managed their own affairs,” reads the prologue in The Fellowship of the Ring.

There’s a mayor, but it’s mostly a ceremonial position. A police force of “Shirriffs” exists, but they wear no uniforms and don’t seem to do much policing either. They’re described as “more concerned with the straying of beasts than of people.”

The Shire’s certainly no lefty commune either. There’s no collective project all the hobbits are working toward. Private property exists, as do money, trade, and wealth disparities. This is all presented as rather benign, and even idyllic.

The libertarianism of the Shire becomes even more apparent at the end of The Return of the King when our heroes return home to find that evil (possibly part-orcish) men in league with the wizard Saruman have taken over and imposed a grim statism on its unwilling population.

Free travel within the Shire is replaced with a system of internal checkpoints, all manned by once-harmless, now-armed Shirriffs. The ale houses are forcibly shuttered, the weed exported, and dank holding cells start cropping up in town.

Fortunately, the hobbits band together and oust these statist interlopers.

That all sounds pretty anarchistic. The Shire’s isolation also makes it similar in kind to other libertarian visions of an externally closed-off, but internally free society; another Galt’s Gulch or ocean seastead.

And yet, many of the things that allow the Shire to operate as an internally free community also demand a conservatism and isolationism that conflict with the dynamism, change, and general openness we associate with freedom.

It’s not a particularly entrepreneurial or industrious place. “Estates, farms, workshops, and small trades tended to remain unchanged for generations,” reads The Fellowship‘s prologue.

That’s a far cry from a free-wheeling free market where old modes of production are constantly giving way to new ideas and ways of doing business. Economic disruption is anathema to the Shire’s staid stagnation.

Indeed, the mills and industry that Saruman establishes during his stint running the Shire are portrayed not as engines of wealth generation, but as ugly, polluting monstrosities.

There’s a cloistered, almost xenophobic attitude among the Shirefolk too. In addition to Shirriffs, there’s a larger, irregular force of “Bounders” tasked with keeping an eye on outsiders and making sure they don’t become a nuisance.

This fear of foreigners goes so far as to occasionally trump characters’ own clear self-interest. Toward the end of The Return of the King, Gandalf explains to the skeptical innkeeper Barliman in the Shire-adjacent town of Bree that the new king will make the roads safe enough for travelers to return.

“We don’t want no outsiders at Bree, nor near Bree at all. We want to be let alone,” responds Barliman, who would seem to have a vested interest in outsiders patronizing his inn.

That fear of outsiders ends up being mostly justified in The Lord of the Rings. (Barliman’s comments come just before the protagonists discover that the Shire has been invaded and taken over.)

The Rings of Power makes clearer what this isolationism costs societies.

The show, like the books, is not really about anything political. It’s primarily a serviceable fantasy adventure about elves and orcs. That makes it a different animal from a show like Game of Thrones that’s obsessed with palace intrigue and dynastic power plays.

But the most recent episode of the show, which aired last Friday, deviates from this trend. Much of the episode concerns itself with the elf warrior Galadriel and human Halbrand’s arrival as shipwrecked refugees in the island kingdom of Númenor.

Immediately, the two find themselves running up against the kingdom’s litany of rules and regulations designed to exclude outsiders.

Galadriel’s very presence is controversial given that elves aren’t typically allowed by Númenor’s racist immigration restrictions. Trade with the outside world has also apparently been discontinued. Galadriel glumly mentions that elves and Númenor once freely exchanged gifts and knowledge for their mutual benefit. No longer.

The island kingdom also has a robust occupational licensing regime designed to exclude not just non-natives, but non–union members as well. When Halbrand looks to ply his trade as a blacksmith, he’s told membership in the blacksmith’s guild is required before he can do even the most basic tasks. Like real-life licensing laws, the sole purpose seems to be protectionism and exclusion: Halbrand isn’t even given an opportunity to demonstrate his competence before being rejected for a job.

To be sure, Númenor shares the Shire’s isolationism, but not its statelessness. There’s a queen and uniformed military. The exclusion of foreign disruptors doesn’t guarantee the kingdom’s internal freedom.

The more interesting question is whether the Shire’s peasant anarchy could exist with a greater degree of openness to the outside world.

Tolkien would probably say that the answer is no; the Shire’s cultural homogeneity is necessary to keep order without a more proactive state.

The libertarian answer would be an obvious yes. Free societies require both the Shire’s absence of internal despotism and openness to trade, migration, and economic competition that Númenor lacks.

Such a world would be a lot more turbulent than the tranquil Shire. But it would also be a lot more interesting. Tolkien maybe recognizes this himself. His characters are always leaving the Shire in search of a little adventure.

Neither The Lord of the Rings nor The Rings of Power give us a positive vision of what this open, stateless might look like. Apparently, that requires a bit more imagination.

The post How Faithful Is <em>The Rings of Power</em> to J.R.R. Tolkien's Anti-Statism? appeared first on Reason.com.

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“We’re sending migrants to her backyard to call on the Biden Administration,” Texas governor says. Republican politicians are moving migrant asylum seekers around the U.S. with little thought to their needs or well-being, instead using them like pawns in a disgraceful game of political one-upmanship.

Texas Gov. Greg Abbott sent two buses of migrants from Texas to nearby the home of Vice President Kamala Harris in Washington, D.C. Meanwhile, Florida Gov. Ron DeSantis sent two planes of migrants to Martha’s Vineyard, a small island and vacation destination in Massachusetts. The migrants were flown to Martha’s Vineyard after being sent from Texas to Florida.

Some of those sent say they were misled about where they were going, Reuters reports. One told Reuters that they had been promised short-term support, work permits, and English lessons. But services in Martha’s Vineyard didn’t even know they were arriving.

Republican leaders explain that they’re making a point about immigration policy and how America needs to secure its borders…as if it’s morally acceptable to simply use people at their most vulnerable to make such a point. Abbott, DeSantis, and those cheering them seem to forget these are people, not chess pieces. People who came to America seeking opportunity, protection, and rights—and in return got treated like inanimate objects in bids to score points against political opponents.

“Harris claims our border is ‘secure’ [and] denies the crisis,” Abbott tweeted. “We’re sending migrants to her backyard to call on the Biden Administration to do its job [and] secure the border.”

If Abbott’s assertions don’t make it clear enough that this is merely a political stunt, one need only look at the way these operations are going down.

If this were just a matter of resources being spread too thin in border states, facilities being full, or jobs being more abundant elsewhere, leaders in Florida, Texas, and Arizona (which has also been busing migrants to other states) would coordinate with states where they were sending people—or at least give them some advance warning. They would also pick places where migrants could be conveniently received. Instead, they’re sending busloads of migrants to these places unannounced, and dropping them off without warning at places like the vice president’s house.

“The fact that Fox News, and not the Department of Homeland Security, the city or local NGOs were alerted about a plan to leave migrants, including children, on the side of a busy D.C. street makes clear that this was just a cruel premeditated political stunt,” said White House Press Secretary Karine Jean-Pierre.

I know the idea is supposed to be that border states don’t know when migrants will arrive, or in what numbers, so this is giving Democratic-controlled locales a taste of that. But border states are nonetheless prepared for migrant arrivals more generally. They have systems in place—and ample federal assistance—in addressing their arrival. It is not the same to simply send buses or planes full of people to places with no expectation that they’re coming.

“Carla Bustillos, a volunteer working with NGOs that care for migrants, said the coalition of organizations was waiting for the buses to arrive at Union Station, only to find they had dropped the migrants off outside the Vice President’s residency,” reports Reuters.

“While we’re doing this political show, we have human beings feeling that their suffering is being exploited,” Bustillos told Reuters. “They have come to the United States to seek asylum and they have been told to get on these buses and promised that an organization would receive them here, give them food, shelter and a job.”

If we just let people who arrive freely connect with employers, communities, and charities instead of jumping through a million legal hoops, many more of them would simply get themselves where they need to go—and go on to contribute to the beautiful pluralism and diversity that makes America great. Having migrants in your community isn’t a punishment, something Abbott and DeSantis seem to have lost sight of.

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FREE MINDS

An interesting education study considers whether it’s better to group students based on ability (e.g., all gifted students in one class) or to employ “a cross-sectional grouping strategy where equal groups are formed, composed of individuals of varied aptitudes.” The researchers were led by University of Rochester neurology professor Chad Heatwole.  “We showed that, mathematically speaking, grouping individuals with similar skill levels maximizes the total learning of all individuals collectively,” Heatwole said. “If one puts like-skilled students together, instructors can teach at a level that is not too advanced or trivial for the students and optimize the overall learning of all students collectively regardless of the group.”

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FREE MARKETS 

The real key to reforming police policies? The Washington Post takes a fascinating look at how insurance companies are forcing police reforms:

Where community activists, use-of-force victims and city officials have failed to persuade police departments to change dangerous and sometimes deadly policing practices, insurers are successfully dictating changes to tactics and policies, mostly at small to medium-size departments throughout the nation.

The movement is driven by the increasingly large jury awards and settlements that cities and their insurers are paying in police use-of-force cases, especially since the 2020 deaths of Breonna Taylor and George Floyd. Those cases led to settlements of $12 million and $27 million, respectively. Insurance companies are passing the costs — and potential future costs — on to their law enforcement clients….

Departments with a long history of large civil rights settlements have seen their insurance rates shoot up by 200 to 400 percent over the past three years, according to insurance industry and police experts.

Even departments with few problems are experiencing rate increases of 30 to 100 percent. Now, insurers also are telling departments that they must change the way they police.

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QUICK HITS

BREAKING: A Montana judge has blocked health officials from enforcing a state rule that would prevent transgender people from changing the gender on their birth certificate. https://t.co/ywB4WywD7Q

— The Associated Press (@AP) September 15, 2022

• California Gov. Gavin Newsom is taking out billboard ads in states with restrictive abortion laws, telling them how to get an abortion in California. (We’ve been here before, and it’s led to some interesting First Amendment battles.)

• “This week’s unexpected rise in US inflation is an opportunity to revisit an old debate,” writes Tyler Cowen. “After the 2008-2009 recession, the recovery in the labor market was notoriously slow. This was commonly blamed on the demand side; monetary and fiscal policy could have done more, it was said, to stimulate recovery. A less popular view — but one that looks correct in retrospect — is that both the demand and supply sides were at fault.”

• What gray floors tell us about American homeownership.

The post DeSantis and Abbott Are Wrong To Treat Migrants as a Punishment appeared first on Reason.com.

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There’s no way the Allow States and Victims Fight Online Sex Trafficking Act (FOSTA) doesn’t violate the First Amendment, argues a federal lawsuit challenging the law. Among other things, it criminalizes web platforms that facilitate prostitution.

The case is now on appeal to the U.S. Court of Appeals for the District of Columbia Circuit after a lower court said FOSTA did not outlaw or have an effect on protected speech. But a wealth of evidence suggests the lower court was wrong.

“FOSTA has a substantial chilling effect on protected speech, causing numerous online platforms to completely shut down or censor material protected by the First Amendment,” argue the Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, massage therapist Eric Koszyk, and sex worker rights activist Jesse Maley (better known as Alex Andrews) in their appeal, the opening brief for which was filed last week.

The group—represented by renowned First Amendment lawyers Robert Corn-Revere and Lawrence Walters—has been fighting in court to stop FOSTA since not long after the law’s 2018 passage. Their original lawsuit was dismissed for lack of standing, only to be revived in 2020 by the same court it’s before again now. The appeals court reversed the lower court’s order last time and sent it back for further proceedings. In March, the district court again dismissed the case, holding this time that FOSTA did not violate the First Amendment.

Now, the plaintiffs are once asking the appeals court to find that the lower court erred.

The government had argued—and the lower court accepted—that FOSTA does not regulate speech but rather conduct and/or a medium for speech. But regulating a medium of communication does target speech, they argue, noting a number of cases where this has been upheld as true. “The government cannot avoid the First Amendment simply by recasting essential speech processes as ‘conduct,'” states their opening brief. “Otherwise, it could claim ‘publishing a newspaper is conduct because it depends on the mechanical operation of a printing press.'”

Their appeal has garnered ample allies, including tech groups, sex worker rights organizations, criminal justice services, LGBT advocates, and people fighting human trafficking. Briefs supporting the plaintiffs have been filed by the Center for Democracy and Technology, Call Off Your Old Tired Ethics Rhode Island (COYOTE RI), the Transgender Law Center, Decriminalize Sex Work, Old Pros, the Urban Justice Center, Freedom Network, and more than 20 other groups.

A Failed Law

Before delving further into the legal arguments against FOSTA, it’s key to understand what it does—and how it’s failed. FOSTA’s goal, according to supporters, was to stop the online advertising of sex-trafficking victims.

FOSTA has three main provisions. The first created a new federal crime, making it illegal to own, manage, or operate a web-based “interactive computer service” with “the intent to promote or facilitate the prostitution of another person.” A violation is punishable by up to 10 years in prison or up to 25 years if the accused “promotes or facilitates the prostitution of 5 or more person” or “contributed to sex trafficking.”

FOSTA also expanded the parameters of the federal criminal law against sex trafficking, applying it to not just underlying conduct that would violate the law (that is, recruiting, enticing, harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, or soliciting someone for a commercial sex act if they are under age 18 or have been forced, defrauded, or coerced). Now, it also includes benefiting from “participation in a venture” that violates the law. This might seem like a small change, but it actually allows for drastically expanded reach. For instance, participation in a venture claims are at the heart of a lawsuit accusing Twitter of sex trafficking because a user shared a link to a sex video (hosted off of Twitter) featuring teenagers.

FOSTA’s final big change was to amend Section 230 of federal communications law, which provides some protection against legal liability for web platforms that deal in user-generated content. Section 230 doesn’t protect against federal criminal charges but does help tech companies avoid private civil lawsuits and state criminal prosecutions. FOSTA removed this protection for any claims involving allegations of sex trafficking—again, something that may seem like no big deal which actually has huge implications for all sorts of internet platforms and online speech more generally. (“FOSTA’s Section 230 exemption sets a dangerous precedent for government censorship of other types of disfavored speech,” Walters said in a statement.)

Lawmakers like to brag that FOSTA indeed stopped sex trafficking ads. But those claims are based on half-truths and distortions, suggests the Washington Post fact-checker Glenn Kessler. And even if it did stop some ads, it doesn’t follow that it stopped sex trafficking.

A wealth of evidence—from local police anecdotes to federal data—suggests that FOSTA has made finding and stopping sex trafficking more difficult, while also putting people in the sex trade more at risk.

A series of sex worker surveys COYOTE RI has conducted since FOSTA passed provide “compelling evidence that FOSTA has harmed those it was intended to help,” according to the brief filed by COYOTE RI and some other sex worker rights groups. Because of the way FOSTA made allowing online speech related to sex work risky, it diminished sex workers’ ability to find clients, screen clients, and warn each other about abusive customers, making them “more vulnerable to pimps and traffickers who can provide an established clientele, alternative advertising strategies, or housing,” states the brief.

“Overall, 40% of respondents reported an increase in force, fraud, and coercion within the industry – the definition of sex trafficking – after FOSTA went into effect,” and this percentage rose to 59 percent among victims of trafficking. “In addition, law enforcement lost the ability to stop individual sex traffickers because US-based sites shut down, leading traffickers to advertise on foreign sites that are beyond the subpoena power of American courts,” the groups add.

While making it harder to prosecute sex traffickers, it’s been entirely unnecessary for prosecuting websites. A 2021 report from the Government Accountability Office noted that, since 2014, the Department of Justice has filed at least 11 cases against websites that were related to sex work advertising, and in only one case—the 2020 prosecution of Cityxguide.com—did FOSTA factor in. Meanwhile, state attorneys general (who pressed for FOSTA) have yet to use it, and civil lawsuits that invoke FOSTA have been largely frivolous, targeting companies—like the newsletter service MailChimp—far removed from any potential violence or abuse.

It’s so bad that some lawmakers want to consider repealing FOSTA.

“What this legislation did was draconian,” Rep. Ro Khanna (D–Calif.) told me in 2019. “It did not just go after bad actors; it went after sex workers’ livelihood and safety.” Khanna’s bill to study the effects of FOSTA was first introduced in 2019 and reintroduced this year, with Rep. Barbara Lee (D–Calif.) as a co-sponsor and Elizabeth Warren (D–Mass.) and Ron Wyden (D–Ore.) introducing a companion bill in the Senate. The aim of the bill is to move toward eventual repeal. But so far, it’s not gained traction in Congress.

That means the legal challenge against FOSTA may be the best—or only—route forward.

Overbroad and Unconstitutionally Vague

FOSTA violates the First Amendment because it’s “an overbroad restriction on protected speech” that relies on “unconstitutionally vague” terms, suggest Woodhull et al. in their appeal. Its “broad and poorly defined restrictions on Internet speech and selective removal of immunity for online intermediaries imposes an unconstitutional chilling effect on protected expression.”

They also object to FOSTA’s retroactive application—entities can be punished under FOSTA for content that was posted before FOSTA became law. This, they argue, violates the due process clause of the Constitution.

The groups note that the text of FOSTA does not define “promotes,” “facilitates,” “prostitution,” or “contribute to sex trafficking.” This leaves room for a wide variety of conduct to fall under FOSTA’s purview. (Again, see the lawsuit against Twitter.)

Does an account that doesn’t directly mention sex for pay still “promote” prostitution if it’s for a known sex worker? What if that sex worker sticks to strictly legal activities, like putting on webcam shows or domming? Do ads for legal sex work that leads to abuse count as contributing to sex trafficking? Even content pressing for the decriminalization of prostitution or promoting legal expression like pornography could get swept up in FOSTA’s wide reach. This broadness and vagueness make it prudent for digital platforms to proactively censor all sorts of legal speech as a precaution.

Woodhull and company note that “websites that hosted personals ads, community forums devoted to discussions of sexuality and lawful adult sexual relationships, speech about non-sexual massage therapy and other non-sexual services, as well as dating sites” were all caught up in the chilling effect of FOSTA. For instance, Craigslist eliminated personals ads, and Reddit started removing certain forums related to sex.

“Given the scale of user-generated content uploaded to the Internet, many online platforms depend upon automated (and inherently blunt) tools to moderate undesirable speech,” notes the Center for Democracy and Technology (CDT) in its brief. But because “those tools cannot be deployed with surgical precision and cannot reliably distinguish between unlawful and borderline speech,” they risk having “wide-reaching chilling effects on constitutionally protected and beneficial speech, as intermediaries, fearing their own liability, crack down on user speech broadly in service of removing what is unlawful.”

Online speech, therefore, should be subject to the highest protection from government censorship—and historically has been by U.S. courts, argues the CDT. “FOSTA is no different than other failed efforts to censor internet speech,” its brief states. And “just like previous efforts to regulate the content of speech on the internet, FOSTA does not pass constitutional muster.”

Targeting Speech

In upholding FOSTA’s constitutionality, the district court suggested that promote and facilitate do not describe speech but conduct. In their appeal, Woodhull et al. offer multiple lines of argument against that view.

For one thing, “there would be little reason to suspend immunity under Section 230—which protects platforms from claims treating them as the ‘publisher or speaker’ of content posted by users—if FOSTA were not about punishing acts of publication and speech,” they write. And “while ‘promote’ and ‘facilitate,’ on their face, could apply either to conduct or to speech, here, they target speech in almost all their applications because they apply specifically to the operation of an online computer service.”

They note that district judges defined facilitate as “to make easier or less difficult, or to assist or aid.” But such terms definitely could implicate speech—for instance, “websites that enable sex workers to report violence or harassment, or to circulate ‘bad date’ lists, no doubt makes their jobs ‘easier’ or ‘less difficult.'”

The example showcases one of the many ways FOSTA could implicated protected First Amendment speech, not just “unprotected speech integral to criminal activity,” as the district court contended.

Like other censorship laws, this one seems to come down hardest on historically marginalized groups and people in vulnerable circumstances.

A brief from the Transgender Law Center states that FOSTA has had a “real and substantial impact on lesbian, gay, bisexual, transgender and queer (LGBTQ) people, particularly transgender and gender non-conforming (TGNC) people.”

While FOSTA doesn’t directly mention gender or sexual orientation, “FOSTA’s regulation of speech furthers the profiling and policing of LGBTQ people, particularly TGNC people, as the statute’s censorial effect has resulted in the removal of speech created by LGBTQ people and discussions of sexuality and gender identity,” the group’s brief states, calling it a “continuation of a long history of the silencing and oppression of LGBTQ people through vague and overbroad laws.”

“The limitations on free speech caused by FOSTA have essentially censored harm reduction and safety information sharing, removed tools that sex workers used to keep themselves and others safe, and interrupted organizing and legislative endeavors to make policies that will enhance the wellbeing of sex workers and trafficking survivors alike,” notes Decriminalize Sex Work and other sex worker rights organizations in their brief supporting the current appeal. “FOSTA is part of a legacy of federal and state laws that have wrongfully conflated human trafficking and adult consensual sex work while overlooking the realities of each.”

The post There's No Way FOSTA Isn't a First Amendment Violation, Says Lawsuit appeared first on Reason.com.

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[Jack Goldsmith and I will have an article out about the Dormant Commerce Clause, geolocation, and state regulations of Internet transactions in the Texas Law Review early next year, and I’m serializing it here. There is still plenty of time for editing, so we’d love to hear any recommendations you folks might have; in the meantime, you can read the entire PDF of the latest draft (though with some formatting glitches stemming from the editing process) here.]

The same basic approach we laid out in the last several days, we think, should apply to bans on political discrimination. (Some California cases suggest that California law already bans such discrimination, and various cities, counties, and territories have explicit rules along those lines.[1]) If, say, Iowa law bans social media platforms from blocking Iowan-to-Iowan speech based on its viewpoint, whether religious, moral, or political, Iowa courts could, consistent with the Dormant Commerce Clause, apply that law to HitchedIn and, for that matter, to Facebook and Twitter—again, so long as those platforms could geolocate the communicating parties as being in Iowa. Likewise for common carrier statutes, which would ban social media platforms from blocking such communication more generally (perhaps with a few viewpoint-neutral exceptions, such as for spam or sexually themed material). This question was raised in the challenges to the Florida and Texas laws that banned social media platforms from discriminating based on political viewpoint, but those courts didn’t reach it, because they struck those laws down on other grounds.[2]

To be sure, one element of the Pike balancing test is to ask whether “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits,”[3] so courts will have to consider the local benefits. But those benefits are quite important.

In our HitchedIn and SafeBook hypos, the local benefits were the benefits of protecting local residents from discrimination based on sexual orientation, religion, and criminal history. And in the political discrimination ban, they are the benefits that the Court viewed as important in Turner, albeit as to the First Amendment—”assuring that the public has access to a multiplicity of information sources,” “a governmental purpose of the highest order, for it promotes values central to the First Amendment.”[4] “It has long been a basic tenet of national communications policy that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”[5]

None of this tells us, of course, that applying such public accommodation laws or common carrier laws to social media platforms is a good idea. The only point is that the Dormant Commerce Clause doesn’t categorically preclude these sorts of experiments.

Because this topic is so much in the news—with Florida and Texas enacting such statutes, and other states considering them—let’s lay this out in some more detail, and in particular cover four possible categories of hypothetical Iowa statutes, and not just Options 1 and 2.

1. Forbidding viewpoint discrimination by platforms when Iowans read material posted by Iowans. This is the analog of Option 1 for the other statutes discussed in previous sections. It has the narrowest extraterritorial effect, because it doesn’t materially affect the service the platform offers outside the state.

Indeed, such a nondiscrimination law would be similar to a normal public accommodation law that bans brick-and-mortar public accommodations—such as bars or stadiums—in a particular state or city from excluding people based on their “political ideology,” including political speech.[6] Such a law may require multistate chains to develop different rules for different states in which they operate. It may lead to some interstate travelers being upset, for instance if they are used to the chain’s restaurants forbidding (say) patrons from wearing Confederate-flag garb but have to endure seeing it in a jurisdiction that bans ideological discrimination. And it may have various other extraterritorial effects.

Still, it’s clear that a state can indeed impose such rules on businesses within it. Likewise, a state can impose similar rules with regard to communications that are sent and received from that state.

2. Forbidding viewpoint discrimination by platforms when anyone reads material posted by Iowans. This is what we’ve also labeled Option 2 in the examples above, and it’s similar to the coverage of Florida’s social media law,[7] though that law focuses—improperly, we think—on “reside[nce]” or “domicile,” legal questions that platforms might not be able to easily answer, rather than on place of posting (or place from which the user created the account), which is a geographical question that platforms can answer more reliably.[8]

As we have noted above, this is a harder case to resolve with certainty, because any such law would require the platform to provide out-of-state users with a different experience than they would otherwise provide. Here, though, is a potentially helpful analogy: Imagine a multistate chain of stores that take wedding invitations supplied by the couples who are marrying, and—in a display of conspicuous consumption—hand-deliver them to recipients throughout the country. And imagine the company declines to do this for invitations to same-sex weddings. Iowa antidiscrimination law may well forbid such discrimination by Iowa branches of the chain that are serving Iowans, even as to invitations that are to be delivered to other states.[9] (As usual, let’s set aside any First Amendment objections to the law, and focus solely on the Dormant Commerce Clause.[10])

Iowa should be entitled to protect Iowans against discrimination based on sexual orientation,[11] even as to material that’s shipped from Iowa to other states. The same logic argues for the constitutionality, under the Dormant Commerce Clause, of the Iowa law that forbids a platform from discriminating based on viewpoint when anyone, including an out-of-stater, reads materials posted by Iowans.

3. Forbidding viewpoint discrimination by platforms when Iowans read material posted by anyone. This is close to the California closed-captioning requirement upheld by the Ninth Circuit in the CNN case. California can require that CNN contents transmitted into California include closed captioning (even if CNN would otherwise prefer not to include it, and doesn’t include it for viewers in other states). Iowa can likewise require that social media contents transmitted into Iowa include material that the platform would have preferred to delete.[12] A state generally has the power to require that products made available in that state have certain features, even if that covers businesses that would create those features outside the state.

This would mean that the platform has to keep posts, regardless of viewpoint, on its computers. But it seems likely that the platforms could conceal those posts from everyone except Iowans (and people in states with similar laws), so the Iowa law wouldn’t affect what will be visible to people in other states. And while this would involve some extra coding and work for the platform, the same was true of CNN’s obligation to provide closed captioning.

If these extra costs proved to be exorbitant, the outcome of a Pike balancing analysis might become difficult to predict. But as we have noted several times, platforms pervasively use geographical identification and filtering technology to serve their business ends, and so we suspect that it can done at a reasonable cost here as well.

4. Forbidding viewpoint discrimination by platforms when Iowans read material posted by anyone and when anyone reads material posted by Iowans. This appears to be similar to the approach of Texas’s social media law,[13] and of proposals in other states, such as Georgia and Michigan. The same set of considerations that would govern approaches 2 and 3 above would apply here. These type of laws are difficult to generalize about and their constitutionality will likely turn on a fine-grained Pike analysis.

[1]. See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation, 15 NYU J. L. & Liberty 709 (2021). Some of the laws ban only discrimination based on party affiliation, but others ban discrimination based on broader political beliefs as well.

[2]. See NetChoice, LLC v. Att’y Gen., __ F.4th __ (11th Cir. 2022); NetChoice, LLC v. Paxton, No. 1:21-CV-840-RP, 2021 WL 5755120, *6 n.1 (W.D. Tex. Dec. 1, 2021), appeal pending.

[3]. 397 U.‌S. 137, 142 (1970); see Greater L.‌A. Agency on Deafness, 742 F.‌3d at 433 (applying the Pike test); Goldsmith & Sykes, supra note 11, at 806 (discussing a possible Pike-based analysis in extraterritoriality cases).‌

[4]. Turner, 512 U.‌S. at 663.‌

[5]. Id. (cleaned up).‌

[6]. See, e.g., Seattle (Wash.) Mun. Code §§ 14.06.020–.030, .08.020–.030 (banning discrimination by public accommodations based on “any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities,” “includ[ing] conduct, reasonably related to political ideology, which does not cause substantial and material disruption of the property rights of the provider of a place of public accommodation”); Ann Arbor (Mich.) Code of Ordinances §§ 9:.151-.153 (banning discrimination by public accommodations based on “opinion, whether or not manifested in speech or association, concerning the social, economic, and governmental structure of society and its institutions”).

[7]. Fla. Stat. § 501.2041(1)(h). Florida’s law is substantively narrower than the one we hypothesize, because its scope is narrower than a total ban on viewpoint discrimination; but the Dormant Commerce Clause analysis shouldn’t be affected by that.

[8]. People often reside in one place even when they’re spending weeks or months accessing the internet from another place. Even if a platform asks for information about where users live when they first sign up (and many platforms won’t), users often change their residence. And domicile of course turns on questions such as whether the users have “a certain state of mind concerning [their] intent to remain” in the place where they are physically present, Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989), something that the platforms have no way of knowing.

[9]. Iowa is indeed one of the many states that ban sexual orientation discrimination

[10]. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890, 908 (Ariz. 2019), concluded that a calligrapher has a First Amendment right to refuse to design “custom wedding invitations” that “contain[] their hand-drawn words, images, and calligraphy, as well as their hand-painted images and original artwork”; a similar question is now before the Court in 303 Creative, Inc. v. Elenis, But even Brush & Nib suggested that the result could be different if the store offered the same services to all couples, without such personalization; imagine, then, that our invitation delivery company doesn’t hand-paint or hand-draw anything, but simply physically delivers it.

[11]. That’s true even if the discrimination wouldn’t be the customer’s own sexual orientation, but rather the sexual orientation of the parties to the wedding—perhaps the customer’s child and the child’s prospective spouse.

[12]. To be sure, the social media company may want to delete the material for its own ideological reasons, while CNN’s not putting up closed captioning likely stemmed mostly from a concern about cost and risk of error. But while that might conceivably make a difference in the First Amendment analysis of the two laws, it shouldn’t affect the Dormant Commerce Clause analysis.

[13]. Tex. Stat. § 143A.002(a) bans platforms from censoring “a user’s expression, or a user’s ability to receive the expression of another person based on” the user’s or another person’s viewpoint. Tex. Stat. § 143A.004(a) provides that this applies “to a user who,” among other things, “shares or receives expression in this state.” and Tex. Stat. § 143A.001(6) defines “User” to include “a person who posts, uploads, transmits, shares, or otherwise publishes or receives expression, through a social media platform.”

The Texas law also covers any user who “resides” in Texas or “does business” there, but that might be too hard for social media platforms to determine, for reasons given supra in note 165.

The post The Dormant Commerce Clause, Social Media Platforms, and Restrictions on Political Discrimination appeared first on Reason.com.

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Peter Dinklage should have been somewhere in Europe this week, shooting a Hunger Games prequel called The Ballad of Songbirds and Snakes. Instead, though, he remained in New York to support his friend, director Sacha Gervasi, at a Tuesday screening of Gervasi’s 2008 cult documentary, Anvil!, at a downtown arthouse called the Angelika (where the picture had run for four months straight upon its original release).

Because Anvil!—or, to give it its full, Spinal-Tappy title, Anvil! The Story of Anvil—is back. Or at least will be on September 27, for a nationwide, one-night-only rerun at some 200 theaters across the country. Not only that, but Anvil itself—the hapless, semi-tragic Canadian metal band at the heart of this rousing and unexpectedly heartwarming film—will be returning to the road soon in support of Impact Is Imminent, the group’s nineteenth album in a 40-year career of nonstop non-hits.

The movie is about this long, soul-grinding slog, which has been sustained by the intensely supportive friendship of the group’s founders, singer and guitarist Steve “Lips” Kudlow and drummer Robb Reiner (note Spinal Tap echo). The dedication of these two men has never ebbed. They’ve never stopped shooting for the stars, and they’re still convinced that a long-delayed career breakthrough is just around the corner.

“It kind of gets harder and harder to believe in that, the older you get,” said Dinklage, seated before the Angelika screen in front of a packed house. The actor was 34 when his own big break came along in the form of the lead role in the 2003 film, The Station Agent. Clearly, any delay can be karmically repaid.

The movie begins in 1984, with Anvil at the height of their powers. They’re playing a rock festival in Japan along with such stars as Scorpions, Whitesnake, and Bon Jovi. Lips is up onstage, snarling and posing in front of a wall of Marshall amps and raking the strings of his guitar with a big pink dildo.

“Really amazing live performers,” says Guns N’ Roses guitarist Slash, wheeled in for talking-head duty. “Sometimes life deals you a tough hand.”

“I don’t know if it was the Canadian thing or what,” says Metallica drummer Lars Ulrich, another early fan still puzzled by Anvil’s failure to launch.

Director Gervasi, an Englishman who was once actually an Anvil roadie (he later moved on to become a heroin addict and to go to law school), had to mortgage his home to make the movie, and we can see where the money went—mainly into traveling all over Europe with Kudlow and Reiner and their current roster of Anvil bandmates, playing one low-paid (or unpaid) gig after another. (In Romania, at the Monsters of Transylvania rock festival, which the band is hoping will be a big deal, we get a quick look at some of the 174 people who showed up.)

Back in the States, the group’s two mainstays carry on with their day jobs. (Kudlow drives a truck for a catering company; Reiner works in construction.) In the face of all setbacks, Lips is irrepressibly upbeat. “It could never get worse than it already is,” he says. Robb, on the other hand, has occasional moments of melancholy. What went wrong? somebody wonders. “I can answer that in one word…three words. We don’t have good management.”

But things have gotten a little better since the release of the film 14 years ago. The two partners have both been able to quit their day jobs. And they’ve never stopped recording (on borrowed money, mainly). Even looking back on all the screwed-up tours and thieving concert promoters, Lips feels he’s been living the dream—traveling the world, meeting the stars (Scorpions’ Michael Schenker and the late Lemmy Kilmister also put in mini-appearances). Life has basically been good. “Things went wrong,” he allows. “But at least there was things to go wrong on.”

The post Review: <em>Anvil! The Story of Anvil</em> appeared first on Reason.com.

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President Biden is discovering the hard way that standing at a podium bathed in blood-red light, flanked by marines, and denouncing your political opponents as threats to the country is not as popular a move as he hoped. Poll after poll finds Americans repulsed by the September 1 fear-fest in Philadelphia, which drew comparisons to V for Vendetta and Star Wars for its over-the-top authoritarian tone. The president tried to convince the country that his critics are dangerous, but he seems to have convinced many, instead, that the real peril lives in the White House.

“It represents a dangerous escalation in rhetoric and is designed to incite conflict among Americans” was the choice of 56.8 percent of respondents asked by the Trafalgar Group to characterize Biden’s speech. Another 35.5 percent called it “acceptable campaign messaging” and 7.7 percent weren’t sure.

Sixty percent of respondents told the Harvard CAPS/Harris poll that the speech “divides [the country] and holds it back” while 54 percent added that it “was an example of fear mongering.”

“62 percent of Americans believed Biden’s comments about Trump and his MAGA followers ‘increases division in the country,'” chimes in the I&I/TIPP poll. “Perhaps surprisingly, Democrats—at 73 percent—were more likely to say that Biden’s MAGA comments increased division than either Republicans (50 percent) or independents (57 percent).”

That really is a bit of a surprise, though it might be that those who weren’t already on Team Blue started with such low expectations that the president’s exercise in frothing at the mouth didn’t offer much more room for disappointment. After all, the Philadelphia speech came after Biden had already accused his political enemies of flirting with “semi-fascism.”

It’s true that President Biden’s approval rating bounced back in recent weeks. The FiveThirtyEight average has him at merely 11 points underwater rather than the laughable 20 points he hit back in July. But the reaction to his “threats” speech suggests he’s either poised to send his popularity back off a cliff, or that he’s just firmed up his standing among the true believers while horrifying everybody else. Both Trafalgar and Harvard CAPS/Harris found a majority of Democrats favoring the speech in contrast to I&I/TIPP, so make of that what you will. Everybody found the event unpopular with the general public.

That said, Joe Biden isn’t the entire Democratic Party. His foot-stomping doesn’t necessarily mean bad news for co-partisans as they prepare for the midterm elections. But he’s certainly not doing the brand any favors when he tears up his 2020 promises to act as a unifier.

“I don’t look at this in terms of the way he does, blue states and red states,” Biden insisted during the final debate of the campaign as he contrasted himself with then-President Donald Trump. “They’re all the United States. … I’m running as a proud Democrat, but I’m going to be an American president.”

An American president except for the half the country he calls out as representing “extremism that threatens the very foundations of our republic” it appears. That he’s not impressing anybody is clear when people are asked what really worries them.

“Do you think that the president Biden is fairly raising issues around MAGA Republicans or is the President trying to avoid talking about inflation, immigration, crime and other issues?” Harvard CAPS/Harris asked in its poll. A majority (59 percent) of respondents said the president is trying to change the subject at a time when people have serious concerns about the state of the country and the world beyond and his administrations is drawing lousy ratings pretty much across the board.

Even more concerning to the president and the ascendant progressive wing of the Democratic Party is where those polled see the real danger when it comes to political movements in the United States. Fifty-five percent of respondents in the Harvard CAPS/Harris survey said they’re more concerned about “the socialist left” while 45 percent answered that they’re more concerned about “MAGA Republicans.”

Of course, it makes sense to focus on the “extremism that threatens the very foundations of our republic” that you see actually controlling the White House and Congress, rather than an alternate extremism that’s out of power. But the sizeable percentage worried about MAGA Republicans along with the looming midterm elections raise an important question: Why not both?

Authoritarian factions have taken dominant positions in both major political parties. Which faction is more dangerous is a matter of who is in a position to implement their policies and demonstrate how much harm they can do. At the moment, the Democrats control the presidency, the House, and (barely) the Senate and get to reap the lack of rewards for Americans’ unhappiness with inflation, crime, and the general direction of the country. After the GOP inevitably gets back into a position of authority in D.C., it will have another opportunity to show how much damage it can inflict and maybe Americans will reconsider their assessment of relative perils.

But, right now, Joe Biden is president, and his party wields the power of the federal government. That includes the FBI, which raided the home of the last president, as well as the IRS, which just received an infusion of funds to extract more taxes from the population. Both vastly powerful agencies suffer declining public trust (as does the government overall). That leaves Americans, outside of the Democratic Party’s core loyalists, deeply unimpressed when the person with the greatest authority over that vast apparatus tries to smear opponents as the real danger.

Keep in mind that a significant majority of Americans (67 percent as of 2017, according to Gallup) view big government as the greatest threat to the country. Standing at the head of that government and lashing out at your political enemies isn’t how the president of the United States convinces people otherwise. Instead, it makes an already unpopular political figure look desperate, unhinged, and potentially the very danger he insists is posed by others.

Joe Biden did himself no favors with that inflammatory speech in Philadelphia. He almost certainly worsened political strife in an already divided country that certainly could have used the moderate unifier he promised to be on the campaign trail far more than the inarticulate demagogue he’s been since taking office. Whether he damaged his party’s prospects in the process is something we’ll discover only when voters cast their ballots in November.

The post Americans Reject Biden's Divisive Rhetoric appeared first on Reason.com.

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9/16/1787: The Constitutional Convention finalizes Constitution.

The post Today in Supreme Court History: September 16, 1787 appeared first on Reason.com.

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In the British spy thriller Slow Horses, it’s not the inept intelligence agents you need to worry about most. It’s the ones who know what awful things they are doing.

The series follows a group of bumbling British domestic intelligence agents who have been remanded to Slough House—a dingy London row house under the direction of Jackson Lamb, its drunken, mean-spirited overseer (played by Gary Oldman).

The gang stumbles into a high-profile crisis in which a group of white nationalists have kidnapped a Pakistani teenager with personal connections to the Pakistani military. The operation eventually turns out to be a false flag arranged from the top as a ploy to build sympathy with Pakistani leadership. When the plot goes wrong and the teen’s life is truly threatened, MI5 leadership tries to cover up its deadly errors, even if it means letting the kidnapped kid die.

It’s a deft thriller about bureaucracy as a system for self-promotion and blame avoidance and the lengths to which government overseers will go to protect themselves, even at the expense of public safety.

The post Review: <em>Slow Horses</em> Thriller Displays the Dangers of Bureaucracy appeared first on Reason.com.

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