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During a recent interview about the fallout from the Capitol riot on Firing Line with Margaret Hoover, Sen. Joe Manchin (D–W. Va.) brought up Section 3 of the 14th Amendment, which bars senators and representatives from serving in Congress if they “have engaged in rebellion or insurrection.” Based on that provision, Hoover asked, would Manchin support the “removal” of Sens. Ted Cruz (R–Texas) and Josh Hawley (R–Mo.), who pressed their objections to President Joe Biden’s electoral votes even after that cause had led to a violent invasion of their own workplace?

Given that Manchin is widely considered the most conservative Democrat in the Senate and has expressed concern about the divisiveness of rushing to impeach and try former President Donald Trump for his role in the riot, his response was striking. “That should be a consideration,” he said. “Ted’s a very bright young individual, and I get along fine with Ted. But what he did was totally outside of the realm of our responsibilities or our privileges that we have.” Other senators, including Sheldon Whitehouse (D–R.I.) and Sherrod Brown (D–Ohio), have said Cruz and Hawley should be expelled if they refuse to resign.

Expelling Cruz and Hawley, like convicting Trump, would require approval by two-thirds of the Senate, meaning 17 Republicans would have to agree that their conduct disqualified them from continuing to serve in Congress. That seems quite unlikely. But even entertaining the possibility raises troubling questions about the consequences of defining insurrection to include public officials who allegedly helped inspire it.

Section 3 was originally aimed at former Confederates, who inarguably engaged in “insurrection or rebellion.” It is not much of a stretch to say that the people who participated in the deadly attack on the Capitol, which was aimed at preventing a duly elected president from taking office, did something similar.

But the article of impeachment against Trump that the House approved a week later argues that he also engaged in insurrection, because he fired up the rioters with his oft-repeated fantasy of a stolen election. “Do you agree that President Trump incited an insurrection?” Hoover asked Manchin, who replied that there is “no doubt at all in my mind.”

If you accept that premise, it logically follows that politicians like Cruz and Hawley, who reinforced Trump’s fantasy by challenging electoral votes without any basis to believe they were not “regularly given” or “lawfully certified” (as required by the Electoral Count Act), are insurrectionists too. Under this interpretation, in fact, any legislator who lent credence to Trump’s outlandish claims of massive election fraud—which would include most Republicans in the House—should be expelled under Section 3.

Even Trump’s most vociferous critics should think long and hard before opening that can of worms. The implication is that legislators who support a cause that moves some people to anti-government violence thereby forfeit their right to serve in Congress. It is not hard to imagine how that logic might be applied to left-leaning legislators who, say, vehemently criticize police practices and passionately decry racial bias in law enforcement.

None of this means that senators like Cruz and Hawley, or representatives such as Mo Brooks (R–Ala.), did nothing wrong when they persistently fed the twin delusions underlying the Capitol riot: that Trump won the election and that Biden’s inauguration could still be prevented. Cruz and Hawley sacrificed truth and their supposed constitutional principles for political gain, hoping to enhance their status as presidential contenders by appealing to ardent Trump supporters. Their actions were reckless, cynical, and legally groundless. Although they claimed to be upholding the integrity of the election system, they were attacking its constitutional foundation by trying to override electoral votes that were duly certified by the state officials who are legally charged with that responsibility.

Cruz and Hawley violated their oaths to uphold the Constitution for the crassest of reasons. As Hoover noted during her interview with Manchin, Cruz was using his support for overturning the election results to raise money even as he and his colleagues were forced to flee enraged Trump followers. “Totally unconscionable,” Manchin said. He wondered “how any of them can live with himself knowing that because of their objections…five people lost their lives.”

This sort of disgraceful behavior should not go unpunished. But if Cruz and Hawley are to lose their jobs, the decision should be left to their constituents.

Short of expulsion, the Senate can register its disapproval of what Cruz and Hawley did by censuring them, which requires no more than a simple majority. That approach would avoid setting a dangerous precedent while providing ammunition to the senators’ opponents in future elections. If voters see fit to re-elect such cowardly, irresponsible, unprincipled hacks, they will have to live with the consequences, and they will have no one but themselves to blame.

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The U.S. Supreme Court’s June 2020 decision in Seila Law v. Consumer Financial Protection Bureau was not warmly received by certain progressive activists. “The far right just scored a victory,” announced Marge Baker of People for the American Way. “Powerful corporate forces have turned their losing political case into a rigged constitutional one,” intoned Sen. Sheldon Whitehouse (D–R.I.). “They’ve moved fringe legal theories into mainstream conservative legal thought.”

At issue in the case was the legality of the single-director structure of the Consumer Financial Protection Bureau (CFPB). Although appointed by the president to a five-year term, the director of the CFPB did not technically answer to the executive branch and could only be fired for “inefficiency, neglect of duty, or malfeasance.” In other words, the president was forbidden from firing the CFPB director for purely political reasons, such as policy disagreements.

The Supreme Court found that structure unconstitutional. “The CFPB Director has no boss, peers, or voters to report to,” observed Chief Justice John Roberts. “Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S. economy. The question before us is whether this arrangement violates the Constitution’s separation of powers.” The majority held that it did.

Is that a “far right” decision? If so, President Joe Biden joined the vast right-wing conspiracy this week when he used Seila Law to advance his own agenda.

“As requested by the Biden administration, today I resigned as Director of the CFPB,” wrote Kathy Kraninger, the Donald Trump-appointed head of the bureau. She “announced her departure via Twitter roughly an hour after Biden was inaugurated as the 46th U.S. president,” noted The Hill. Thanks to Seila Law, Biden was free to push her out and pick his own nominee to head the agency.

This little episode illustrates one of the problems with viewing the behavior of the Supreme Court in simplistic left/right terms, as folks like Sheldon Whitehouse tend to do. Namely, that sort of viewing often misses the full implications of the Court’s actions. After all, it was pretty clear that future presidents of both parties stood to gain in this particular case. As I noted when the ruling came down last year, “Here’s one potential real-world impact of today’s decision: If Joe Biden wins the presidency in November, he will be free to fire the bureau’s Donald Trump–appointed director for purely political reasons.”

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Oren Cass, who is the former chief policy advisor to Mitt Romney and the founder and executive director of the think tank American Compass, believes that the U.S. government should intervene more aggressively in the manufacturing industry.

Cass participated in a recent Soho Forum virtual debate, held on January 13, 2021, arguing in favor of the proposition:

“To promote prosperity among all income groups, the U.S. government should adopt an industrial policy.”

Arguing against Cass: Scott Lincicome, a senior fellow at the Cato Institute. He says that, in the real world, government interference has only hurt manufacturing. The problem with the economic nationalism favored by Cass is that it insulates companies from the discipline of profit and loss. In a free market, businesses learn from their mistakes. When the government is involved, they react by growing bigger as a way to cover for their failures.

It was an Oxford-style debate, and Lincicome prevailed by convincing 14.56 percent of the audience to switch to his side.

The Soho Forum, which receives fiscal sponsorship from the Reason Foundation, is a monthly debate series typically held at the SubCulture Theater in Manhattan’s East Village, but which has gone remote during the pandemic.

Narrated by Nick Gillespie. Edited by Regan Taylor and John Osterhoudt.

Photo: Richard Graulich/ZUMAPRESS/Newscom; Collision Conf/Flickr/Creative Commons; SMG/ZUMA Press/Newscom 

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An article in the Forward by Ilan Ben Zion about “a growing number of Israelis … opting … [to get] married virtually in the state of Utah”:

That seemingly simple act has landed [Shira Hofesh] at the center of a case before the Israeli Supreme Court, one that — if her appeal succeeds — could fundamentally change the options available to Israeli couples unable to get hitched in the Holy Land.

Hofesh’s husband, Alexey Kabishcher, immigrated to Israel from Ukraine as a child but is not recognized as Jewish by the Orthodox Rabbinate. As a result, the couple could not get married in Israel.

Israel, in a provision that stems from the old pre-1918 Ottoman system, provides that marriages are to be done through the couple’s religious community. This “make[s] it impossible for intermarriage or same-sex weddings to take place in Israel, or even Jewish weddings performed by non-Orthodox rabbis,” which has led to many Israelis getting married in nearby Cyprus. But the pandemic has shut off physical travel, and thus led to virtual marriage tourism:

Last year, the Beehive State approved wedding ceremonies over the internet in which only the officiating party is located in Utah proper, and which doesn’t require any of the parties to be residents of the state. Israelis like Hofesh started flocking — virtually — to Utah, prompting Israel’s interior minister to institute a freeze on marriages performed in Utah.

Read the whole article here.

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In this morning’s Price v. Barr decision, Judge Colleen Kollar-Kotelly (D.D.C.) held:

[1.] Filming, including for purposes of making a film that would be commercially distributed, is protected by the First Amendment.

[2.] The permit requirements are content-based, because

[The requirements] do not apply generically to all commercial activity in national parks. To the contrary, the permitting regime applies to filming, a form of expressive speech, and specifically to a type of filming, “commercial filming.” 54 U.S.C. § 100905(a). Section 100905’s implementing regulations make this content-based distinction even more apparent, defining “commercial filming” as the “recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income.” The application of § 100905’s permitting regime, therefore, necessarily turns on an assessment of whether the content of a film was meant to appeal to a market audience and generate income.

Consider, for example, the enforcement of § 100905 against Mr. Price and his film Crawford Road. To determine whether Crawford Road ran afoul of § 100905’s permitting regime, NPS officials needed to review the film and determine ex post whether the content Mr. Price included therein was geared towards a “market audience” or evinced some “intent of generating income.” 43 C.F.R. § 5.12. If, however, Mr. Price’s film was “non-commercial” or happened to feature only news worthy “information … about current events or … of current interest to the public,” the permitting requirement would not apply, see id. at § 5.4(a).

[3.] The requirements must therefore satisfy strict scrutiny, which they can’t do. The “governmental interest in revenue collection” isn’t compelling enough; and the regulations aren’t narrowly tailored to the interest in “[p]rotecting national park land and the resources it contains”:

First, § 100905 and its implementing regulations are overinclusive. On their face, § 100905 and its implementing regulations flatly require a paid permit for all “commercial filming.” This regime, therefore, requires “individuals and small groups to obtain permits before engaging in expressive activities,” just the same as it does for large groups with heavy and potentially disruptive filming equipment. Defendants offer no explanation for how the broad sweep of this permitting regime is sufficiently tailored to the government’s goal of protecting federal land….

Relatedly, § 100905’s permitting regime also excludes non-commercial filming without any consideration for the damage that activity might also cause to national parks. For example, a “non-commercial” filming production carried out by a non-profit organization or a news crew would escape the reach of § 100905’s permitting regime, even if those groups used heavy filming equipment that damaged federal land.

I’m not sure that a distinction between commercial filming and noncommercial filming, turning just on whether the result is to be commercially distributed, is content-based. But I agree that the news-gathering exemption, for “information that is about current events or that would be of current interest to the public,” makes the rules content-based, see Regan v. Time, Inc. (1984). And I agree that the rules can’t pass the strict scrutiny required for such content-based restrictions.

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Will Wilkinson is a vice president at the left-leaning Niskanen Center, a contributing writer at The New York Times, and someone who has frequently quarreled with me about so-called cancel culture. (I think it’s generally bad when people are fired, expelled, or dragged on social media for saying stupid or poorly phrased things they quickly come to regret; Wilkinson has suggested to me that I’ve made too much of this problem.)

On Wednesday, Wilkinson tweeted, “If Biden really wanted unity, he’d lynch Mike Pence.”

Lynching humor is virtually never a good idea, and this joke was especially badly executed. (Wilkinson said he was making a joke not at the former vice president’s expense, but in reference to the Capitol rioters who had expressed a similar sentiment. The joke being that this time it was the far right calling for violence against a Republican official rather than the left.)

Nevertheless, widespread outrage—some of it stoked by conservative news sites like The Federalist and The Daily Caller—ensued on social media. Wilkinson apologized, describing his tweet as a lapse in judgment.

“It was sharp sarcasm, but looked like a call for violence,” said Wilkinson. “That’s always wrong, even as a joke.”

Nevertheless, the Niskanen Center fired Wilkinson and made it clear that they did so explicitly because of the tweet. “The Niskanen Center appreciates and encourages interesting and provocative online discourse,” wrote Niskanen President Jerry Taylor in a statement. “However we draw the line at statements that are, or can in any way be interpreted as, condoning or promoting violence.”

The New York Times, too, may take action. “Advocating violence of any form, even in jest, is unacceptable and against the standards of The New York Times,” a Times spokesperson told Fox News. “We’re reassessing our relationship with Will Wilkinson.”

And thus a noted doubter of cancel culture has been canceled for a problematic tweet—ironic, but also regrettable, in my view. Both the Niskanen Center and The New York Times are private organizations and free to associate with whomever they wish, of course; a think tank that intends to influence public policy by lobbying legislators may find it inconvenient to employ someone who threatened violence against Mike Pence, even in jest. And decisions about hiring and firing are rarely as simple as they appear to outside observers with an ax to grind, so there may well be more going on here—though the statement from Taylor seems to eliminate much of that ambiguity in this case.

The term cancel culture, in recent years, metastasized, and is now deployed in a wide variety of situations, some of which strain the boundaries of the term to breaking. Rep. Jim Jordan (R–Ohio), for instance, described the second impeachment of President Donald Trump for his role in the Capitol riots as an example of Democrats trying to “cancel” the president. This is nonsense.

But Wilkinson’s case is a classic, textbook cancelation: excessively harsh, drastic disciplinary action in response to one dumb tweet that would otherwise likely have been forgotten in a matter of days.

This affair has produced several hypocrisies. First, if the Niskanen Center “draws the line at statements that are, or can in any way be interpreted as, condoning or promoting violence,” then it would have to fire its president. Taylor has arguably used Twitter in a manner that suggests he condones violence. He rooted for antifa to punch out Mark and Patricia McCloskey, the St. Louis couple who waved their guns at protesters encountered on their private street. “If I were in that march, and these racist lunatics were waiving [sic] guns at me, I’d like to think I’d rush them and beat their brains in,” said Taylor. “And I wouldn’t apologize for it for one goddam [sic] second.”

Unlike Wilkinson’s tweet, there’s little reason to assume this was meant in jest. And unlike Wilkinson, Taylor is the president of the organization, and sets the tone for what is permissible. If the boss can tweet an unapologetic call to “beat their brains in,” his employees might very well think that edgy humor is okay. Perhaps that’s why Taylor deleted his statement regarding Wilkinson’s firing—he realized that it impugned him as well. (Neither Taylor nor a spokesperson for the Niskanen Center responded to a request for comment. Wilkinson declined to comment.)

Another hypocrisy concerns the conservative news outlets that wrote about Wilkinson in the first place. Both The Federalist and The Daily Caller complain constantly about cancel culture, and favorably cover those who criticize it. They are often right to do so. (In fact, I have been quoted in The Federalist, The Daily Caller, and even a Niskanen Center report, about the perils of cancelation.) But when the time came to show the exact sort of mercy they otherwise would have called for had the subject been a victim of left-wing activists or the mainstream media, these elements of the right poured gasoline on this fire without any hesitation.

If you only criticize cancel culture when it’s your side being canceled, then you aren’t really attacking the concept—you’re just playing defense for your team. That’s why it’s important to speak out on behalf of those facing social media mob justice, even when the victim is not a member of one’s own ideological coalition.

Indeed, given that I am primarily known for criticizing cancel culture, Wilkinson—who once tweeted “Cancel culture, lol” and also suggested I branch out to “slightly more important stories“—may be the closest thing I have to an ideological foe. In that spirit, I oppose his firing, and encourage his employers to reconsider.

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