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For most of spring 2020, rattled New Yorkers trudged out onto their stoops and balconies every night at 7 p.m. sharp to bang their pots and pans and holler appreciation for the first responders—cops, nurses, doctors, EMTs, firefighters—who, unlike them, did not really have the choice to stay home from work while the deadly coronavirus ripped through the five boroughs.

As of Tuesday, those same New Yorkers, through their representative government, are telling those same essential workers to go look for a new job, unless they have been vaccinated for COVID-19 or have filed for a religious exception from the statewide mandate.

“The only way we can move past this pandemic is to ensure that everyone eligible is vaccinated, and that includes those who are taking care of our vulnerable family members and loved ones,” Gov. Kathy Hochul said in a statement on Monday, while signing an executive order easing various licensing requirements in order to expand the pool of potential health care workers. The governor is keeping open the option of calling on the National Guard to cover for expected hospital staffing shortages.

New York’s vaccine mandate, which covers 600,000 health care workers, is one of scores across the country affecting nurses, doctors, teachers, and cops. North Carolina–based hospital company Novant Health announced Monday that it had fired 175 noncompliant workers. According to The Washington Post, “More than 150 health-care workers who did not comply with a vaccine mandate at Houston Methodist—one of the first health systems to require the coronavirus shots—were fired or resigned in June after a federal judge upheld the policy. ChristianaCare, a Delaware health system, announced this week that 150 employees were fired for not adhering to its vaccine mandate.”

The requirements are exacerbating existing staff shortages in the health care sector 19 months into the pandemic. But are they increasing vaccinations? Yes appears to be the answer.

New York announced its mandate August 16; between then and late Monday, vaccinations of at least one shot among staff at nursing homes increased from 70 percent to 92 percent, at adult care facilities from 76 percent to 89 percent.  The hospital-worker vaccination rate rose from 77 percent in mid-August to 84 percent as of September 22 (there has been widespread reporting of a rush of health-sector vaccinations in the final hours before the deadline).

According to a soon-to-be-published nationwide poll of 1,036 Americans that was funded by the Robert Wood Johnson Foundation, 16 percent of employed respondents said they would quit or start looking for new work if required by their employer to get a vaccine. “Among those who said they were ‘vaccine hesitant’—almost a quarter of respondents—we found that 48% would quit or look for another job,” pollsters Jack J. Barry, Ann Christiano, and Annie Neimand wrote. “Other polls have shown similar results. A Kaiser Family Foundation survey put the share of workers who would quit at 50%.”

Yet, those same authors conclude, “the actual number who do resign rather than get the vaccine is much smaller than the survey data suggest.”

This week will be the test of those theories, as Connecticut’s statewide health care vax mandate took effect Monday (for public hospitals), California’s kicks in Thursday, and Rhode Island’s on Friday.

As the Associated Press notes, in a development that mirrors COVID-related educational restrictions, “States that have set such requirements tend to have high vaccination rates already. The highest rates are concentrated in the Northeast, the lowest ones in the South and Midwest.” This raises in particular some uncomfortable issues of class, as six-figure big-city professionals cheer on or at least shrug at the firing of working-class nurses, EMTs, and support staff. Spring 2020, this ain’t.

Soon, however, the impact will be spread out all over the country, after the rollout of President Joe Biden’s mandates on private employers with more than 100 workers, plus all 17 million employees at health care providers that receive Medicare and Medicaid, and every federal employee (including military). The Centers for Disease Control and Prevention estimates that 77 percent of Americans age 18 and old have received at least one shot, with 67 percent being fully vaccinated. The U.S. one-shot vaccination rate of 64 percent overall ranks just 45th in the world.

The most compelling arguments for government to mandate injections into people’s bodies is when those people A) work for the government, and/or B) work in close proximity to at-risk populations, which disproportionately means the elderly, the sick, the immunocompromised, and the unvaccinated (particularly those falling in the prior categories). The state is on far shakier ground—legally, morally, and medically—when mandating jabs for low-risk populations outside its employ.

For an explanation of why someone might not want to take the vaccine, go no further than professional basketball player Jonathan Isaac of the Orlando Magic:

Jonathan Isaac ????????????????

pic.twitter.com/wHw8QzCmeA

— Art TakingBack ???????? (@ArtValley818_) September 28, 2021

The National Basketball Association does not have a league vaccine mandate on its players, but government mandates in New York City and San Francisco mean that three teams (the New York Knicks, the Brooklyn Nets, and the Golden State Warriors) will be subject to the requirement. Brooklyn star point guard Kyrie Irving and Golden State forward Andrew Wiggins have been talking about missing all of their home games rather than acceding to the mandate.

Far more consequentially, public school districts are beginning to adopt and enforce vaccine mandates on all eligible students. Culver City, California, started the trend, followed by the Los Angeles Unified School District, the country’s second-largest. San Diego Unified was set to vote on a mandate Tuesday night.

In a sign of blue-state policies to come, Education Secretary Miguel Cardona endorsed student vaccines last week. “I wholeheartedly support it,” Cardona said during a visit to Detroit. “It’s the best tool that we have to safely reopen schools and keep them open. We don’t want to have the yo-yo effect that many districts had last year, and we can prevent that by getting vaccinated.”

Yet even unvaccinated kids remain overwhelmingly less likely to contract, spread, or suffer from COVID-19. Fears of the new school year generating a new surge of cases have proven unfounded so far. And the situation that Cardona is trying desperately to avoid—remote learning, which has proven educationally calamitous—will likely increase in communities where parents are skeptical about the cost/benefit ratio of vaccinating their kids.

In fact, the LAUSD—where in addition to the vaccination mandate, all students and staff are tested weekly regardless of vax status—new enrollment figures for 2021-22 just came out, and they were three times worse than the district expected: a drop of 6 percent in just one year, after already falling 4 percent the year before that. Forcing vaccines on the unwilling has more consequences than merely increasing vaccination.

So we’re in uncharted territory here. If even 3 percent of any given population decides not to comply with vax mandates even under threat of government reprisal, that could have huge impacts on the public education system, the economy, and on hospital capacity.

It’s on that latter point in particular that policy makers should be looking at closely over the coming weeks, as they fire nurses and mobilize the National Guard. After the brutal COVID-19 wave in the South this summer, the 10 states with the biggest percentage increase in hospitalizations over the past two weeks, led by highly-vaccinated Vermont and Maine, are all in the north.

Vaccine mandates may well be the last illiberal push that results in the U.S. reaching some mythical pandemic off-ramp. But they may also create health care shortages in the Northeast right as the virus once again rears its seasonal and regional head.

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New life was injected into a free speech legal saga over an “I Eat Ass” bumper sticker yesterday when a federal judge ruled that the expression might violate Florida’s obscenity law and would thus be unprotected by the First Amendment.

At the center of the odyssey is Florida man Dillon Shane Webb, who was pulled over in May of 2019 after Columbia County Sheriff’s Deputy Travis English took exception to the sticker. Dillion declined to censor it on the spot, his vehicle was searched, and he was subsequently arrested and booked in jail for “obscene writing on vehicles” and “resisting an officer without violence.” (The “resisting” in question refers to his refusal to alter the sticker’s appearance at the officer’s demand.)

Those charges were dropped shortly thereafter, with the State Attorney’s Office citing the First Amendment.

But the U.S. District Court for the Middle District of Florida ruled yesterday that the case is not so cut and dry, awarding qualified immunity to English and thus dooming the suit Dillon brought against him for allegedly violating his free speech rights and for falsely arresting him.

“While Webb denies the Sticker was in fact obscene, in interviews he repeatedly acknowledged the sexual nature of his Sticker,” wrote Judge Marcia Morales Howard in Webb v. English, “albeit couched as an attempt at humor, showing that the notion that an erotic message was more than hypothetical—it could reasonably be viewed as the predominant message being communicated.” She added that “if the Sticker depicted a sexual act, it would be protected speech under the First Amendment only if it had serious literary, artistic, political, or scientific value.” English, as well as Corporal Chad Kirby—who via phone agreed Dillon should be arrested—thus can’t be held liable over their subjective determination and the subsequent arrest.

Yet the law in question—Fla. Stat. § 847.011(2), which prohibits “any sticker, decal, emblem or other device attached to a motor vehicle containing obscene descriptions, photographs, or depictions”—is unconstitutional on its face, according to Eugene Volokh, a professor of law at the University of California at Berkeley. “This entire provision is therefore unconstitutionally overbroad and thus invalid on its face, and thus can’t be applied even to possession of obscenity in public,” Volokh argued in May 2019.

The doctrine of qualified immunity protects certain state actors from accountability for alleged misconduct if the exact way they violated your rights has not been explicitly carved out as unconstitutional in a prior court decision. Though it was supposed to shield government officials only from silly lawsuits, it has instead shielded them from ones with merit, including the more than two-dozen cops who blew up an innocent man’s home during a botched SWAT raid on the wrong residence, a cop who conducted an illegal search and ruined a man’s car in the process, cops who allegedly stole hundreds of thousands of dollars, and cops who arrested a man on bogus charges after attacking him outside his house. Those who overcome qualified immunity do not win damages as a result; they merely get the opportunity to state their claim before a jury.

This is not the first time a qualified immunity case arose from an alleged breach of the First Amendment. Denver cops affirmatively violated a man’s First Amendment rights when they forced him to delete a video of them beating a suspect, a federal court ruled in March. That same court also gave the officers qualified immunity because, though the officers were guilty of violating the man’s rights, that right was not “clearly established” at the time, the ruling said.

And the doctrine does not solely apply to police: College administrators at Arkansas State University received qualified immunity after hamstringing a student from recruiting for a conservative political advocacy group. The Supreme Court declined to hear that case, eliciting a scathing rebuke from Justice Clarence Thomas.

Ironically, there was a ruling that may have helped Webb. Nieves v. Bartlett, a 2019 Supreme Court decision, holds that officers may be held liable if they “have probable cause to make arrests, but typically exercise their discretion not to do so.” One would assume that applies here, where the officer surely should have exercised his discretion not to make an arrest over a bumper sticker.

Yet in an apt demonstration of how lopsided qualified immunity doctrine is, Judge Howard noted that the Supreme Court handed that particular decision down three weeks after Webb’s arrest. “As such,” she wrote, “as of the date of Webb’s arrest, the right to be free from a retaliatory arrest that was otherwise supported by probable cause was not clearly established.”

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When teachers unions forced public schools to close indefinitely in spring 2020, the void they created showed how ill-suited traditional public schools are to the 21st century. Though the pandemic stressed most public institutions, public charter schools proved remarkably resilient.

According to a new report from the National Alliance for Public Charter Schools (NAPCS), during the pandemic, public charter school enrollment increased in 39 of the 42 states with charter schools, adding 237,311 students from the 2019–20 school year to 2020–21. During the same period, traditional public schools lost 1.4 million students. While some of the traditional public schools’ losses can be attributed to homeschooling, learning pods, and other alternatives, the Center for Reinventing Public Education learned that flight to virtual schools only accounted for roughly 40 percent of traditional districts’ enrollment declines. 

That tracks with the NAPCS findings. Though enrollment in virtual public charters spiked in a few states—Oklahoma, Utah, and Pennsylvania—in other states like Texas, which had an enrollment surge of almost 30,000 students, those new charter school students are not attending virtual schools. Over the last decade, brick-and-mortar charter schools did very well, and would have likely done even better were enrollment not arbitrarily capped by law in many blue states like New York and Washington. Even in places where public charters are not legislatively capped, union contracts have scotched their growth.

Much has been written about charter schools’ “scary future” politically in the wake of the frayed bipartisan support for public charter schools. Observers claim Republicans are now more focused on private school vouchers than more widespread charter schools. Democrats once had a strong pro-education reform contingent that favored charter schools but have in the last five years or so retreated into the open arms of teachers unions who oppose charter schools. There is no disputing that political expediency on both sides has created something of a vacuum in support for public charters, but out of this vacuum emerges a powerful force: parents.

Consider the words of Jasmine Morrison, the director of Parent Engagement at the New Jersey Public Charter Schools Association and leader of the parents’ charter school advocacy Unapologetic Parent coalition. She spoke at the NAPCS’ webinar launch of its report. According to Morrison, what policy makers who routinely oppose public charters are missing is that the pandemic gave parents a lens into their children’s lives like they’d never had before. They peered over little shoulders during remote learning sessions to observe curricula, teaching methodology, and classroom management. They also had an unprecedented opportunity to observe their child’s behavior as a student—not as a procrastinating or recalcitrant homework-hater, but as a real-time student. They observed how motivated or unengaged, how enthusiastic or bored their children were in class for significant periods of time. The parents of 237,311 did not like what they saw, so they voted with their feet and bumped charter school enrollment nationwide by 7 percent in a single school year, double from the previous year.

Morrison says that’s a big deal because it’s no easy feat to change a child’s school. Birth certificates, school records, proof of residency, and vaccine records have to be gathered—and had to be submitted and verified at a time when the world was shuttered. But for parents who saw their kids blossom—or “do a happy dance,” as she described it, because they achieved success during class—the effort was well worth it. Parents in her network have lauded their new schools for being nimbler and better equipped to meet the moment than district schools encumbered by top-down bureaucracy and union rules.

“People were dissatisfied with the first round of school closures,” Morrison says, “and while parents don’t know off the bat if their new charter school is union or nonunion, they know something is different whether it’s the environment, the school culture, the amount of teacher contact, or resources like after-school activities and tutoring, or just finding the best fit for their child’s development.”

Naomi Shelton, CEO of the National Charter Collaborative, which provides support for minority charter school leaders, also participated in the report’s launch. Shelton says that when parents like what’s happening in their child’s public charter school, policy makers need to be responsive and support the expansion of grade ranges or seats as needed.

Both agree that parental voices need to be amplified by the community that advocates for charter schools. Shelton points to the Freedom Coalition for Charter Schools, which is engaged in direct advocacy, or the Powerful Parents Network, a nationwide organization that advocates for school choice and which drew headlines for confronting Democratic presidential candidates on the issue at primary debates in 2019 and 2020. 

The NAPCS report paints a picture, as Shelton put it, of the “radical reckoning” that happened during the pandemic—a reckoning that should prompt policy makers to rethink fossilized opposition. 

The dramatic exodus of families from traditional public schools to charter schools—the highest enrollment growth since 2014—presents the perfect opportunity to engage in what Adam Grant, author of Think Again, calls the “critical art of rethinking.” America’s industrial-era education systems, heavily dependent on centralized school districts, can no longer be the default in our new reality. Autonomous schools like the nation’s more than 7,500 tuition-free public charters, which serve mostly low-income minority students, must be embraced as part of the solution—and not just by parents dealing with a political education vacuum.

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So holds the Eleventh Circuit today in Leake v. Drinkard, in an opinion by Judge William Pryor joined by Judge Barbara Lagoa and District Judge Harvey Schlesinger:

We hold that the [a pro-American veterans parade funded and organized by the
City of Alpharetta, Georgia] was the City’s speech. It follows that the Sons of Confederate  Veterans “cannot force [the City] to include a Confederate battle flag” in the veterans parades it funds and organizes.

Surely correct, I think, just as the parade wouldn’t have to include a Nazi flag or a Soviet flag or for that matter a British, Mexican, or Spanish flag—or for that matter even flags of neutral countries (or banners promoting pacifism), if the city decides that those flags don’t fit the city’s message. Likewise, if the City wants to put on a pro-police parade, it needn’t include anti-police banners. Cf. Pleasant Grove City v. Summum (2009) (holding that a city may pick and choose what monuments to allow in its parks).

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The country is currently in the throes of a moral panic over social media, says Reason Senior Editor Robby Soave in his new book, Tech Panic: Why We Shouldn’t Fear Facebook and the Future. Instagram is accused of making our daughters bulimic and YouTube is turning our sons into alt-right terrorists. Amazon is forcing us to buy stuff we don’t want while Twitter degrades political discourse into an endless series of trolling memes. Conservatives clamor that they are being systematically discriminated against while liberals say social media perpetuates electoral fraud and COVID-19 misinformation. The result of such fearmongering, he tells Nick Gillespie, is increasingly intrusive and bipartisan attempts to regulate online speech and business models.

Conservatives like Gov. Ron DeSantis (R–Fla.) and Gov. Greg Abbott (R–Texas) have signed controversial legislation banning social media platforms from suspending or moderating the accounts of political candidates. Supreme Court Associate Justice Clarence Thomas has suggested private businesses like Twitter and YouTube should be classified as common carriers, subject to strict regulation by the federal government.

Liberal legislators in Colorado have proposed creating a “digital communications commission” that would have the power to change how platforms do business in the name of fighting “hate speech” and “misinformation.” Lawmakers in at least 38 states have introduced over 100 laws in the past couple of years to regulate online speech and related issues.

In Tech Panic, Soave says such attacks are nothing more than modern-day witch hunts whose main accusations fall apart under even mild scrutiny. They are contemporary versions of past freakouts over video games, rock music, and comic books. “We shouldn’t fear Facebook and the future,” writes Soave, who criticizes social media for deplatforming people rather than supporting free speech. The bigger threat, he says, comes not from private companies but from politicians, woke mobs, social conservatives, and activists whose real goal is to limit speech they don’t like.

Interview by Nick Gillespie. Edited by Ian Keyser. Intro by Regan Taylor. Graphics by Lex Villena, Isaac Reese and Regan Taylor.

Music Credit: “Battle Drums,” by Kyle Preston via Artlist

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The House of Representatives passed legislation today that would finally erase the sentencing disparity between federal crack and powder cocaine offenses.

By a wide bipartisan vote of 361-66, the House passed the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, H.R. 1693. The legislation would reduce the penalties for federal crack cocaine offenses to the same level as those for powder cocaine offenses, and it would make those changes retroactive, meaning federal crack offenders currently serving prison sentences will be eligible to have their sentences reduced.

Similar legislation has been introduced in the Senate by Sen. Cory Booker (D-N.J.), where it faces a less certain future. The White House endorsed the legislation in June, and if it passes Congress, the law would close the book on one of the most regrettable pieces of President Joe Biden’s legacy.

In 1986, then-Sen. Biden (D–Del.) co-sponsored the Anti-Drug Abuse Act, one of the most disastrous laws passed in the 1980s by lawmakers posturing as tough-on-crime. The law created a 100-to-1 sentencing disparity between crack and powder cocaine offenders, the former of whom were predominantly black. The result was that someone possessing five grams of crack cocaine would receive the same five-year mandatory minimum sentence as someone with 500 grams of powder cocaine, despite there being little to no pharmacological difference between the two substances. 

The U.S. Sentencing Commission reported that black people made up nearly 77 percent of all federal crack cocaine convictions in fiscal year 2020.

Criminal justice advocates have lobbied for decades to roll back the law. In 2007, Biden endorsed legislation that would have completely eliminated the disparity. A compromise bill, the Fair Sentencing Act of 2010, reduced it from 100-to-1 to 18-to-1.

In 2018, the FIRST Step Act made the Fair Sentencing Act’s reductions retroactive, leading to the release of roughly 3,000 federal crack offenders. 

One of the first to receive a sentence reduction under the FIRST Step Act was Matthew Charles, who was released from prison in 2019. Charles was sentenced in 1995 to 35 years in federal prison for a crack cocaine offense.

“If crack and powder were treated the same, my sentence could have been 15 years, not 35,” Charles testified before the Senate Judiciary Committee this June. “But the 100-to-1 disparity was in place at that time, and I honestly didn’t seem like someone who deserved a break.”

Inside prison, Charles found religion, turned around his life, and became a model inmate. He is now a criminal justice reform advocate.

The EQUAL Act, introduced by Rep. Hakeem Jeffries (D–N.Y.), benefited from broad bipartisan support in the House. Conservative Rep. Louie Gohmert (R–Tex.), a co-sponsor of the bill, said in a letter supporting the legislation that the federal sentencing disparity was “unfair and unnecessary for public safety.”

“I never saw a need for a cocaine sentencing disparity in Texas, and I see no need for a cocaine sentencing disparity federally,” said Gohmert, a former Texas state judge.

However, the legislation faces a much tougher road in the Senate. Sen. Chuck Grassley (R–Iowa), the ranking Republican on the Senate Judiciary Committee, told the Sioux City Journal last week that there’s not as much Republican support in the Senate for eliminating the sentencing disparity. He doubts that he and Sen. Dick Durbin (D–Ill.), the chairman of the Judiciary Committee, can muster the 60 votes needed to get the Equal Act to the Senate floor.

“Does that mean that there’s not some possibility for compromise? I would be open to that, but I’m going to have to get enough Republicans to go along to make sure we don’t scuttle the other good provisions we have,” Grassley told the newspaper.

Sen. Tom Cotton (R–Ark.), of the staunchest defenders of mandatory minimum sentencing in Congress, wrote an op-ed in National Review last week suggesting that the proper solution to the crack-powder cocaine sentencing disparity, if it must be changed, is to raise the sentences of powder cocaine offenses to match those of crack.

Criminal justice groups and civil liberties advocates applauded the passage of the bill in the House.

“For 35 years, the sentencing disparity between crack and powder cocaine, based on neither evidence nor science, has resulted in higher sentences that are disproportionately borne by Black families and communities,” Aamra Ahmad, ACLU senior policy counsel, said in a press release. “We applaud the House for passing the EQUAL Act, which will finally end that disparity, including for thousands of people still serving sentences under the unjust disparity who would now have the opportunity to petition courts for a reduced sentence.”

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