Federal Court Rules Pennsylvania’s Lockdown Order Unconstitutional

reason-wolf

A federal judge on Monday has ruled that lockdown restrictions imposed by Pennsylvania Gov. Tom Wolf (D), including a ban on large gatherings and the closure of “non-life sustaining businesses,” are unconstitutional.

While those restrictions were “well-intentioned,” wrote U.S. District Judge William Stickman IV, “good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable and the intent is good—especially in time of emergency.”

In May, Wolf and Pennsylvania Department of Health Secretary Rachel Levine were sued by a coalition of counties, federal and state elected representatives, and several small businesses over the state’s coronavirus restrictions. The restrictions included a shelter-in-place order requiring people to stay in their homes, a closure of all “non-life-sustaining” businesses, and bans on gatherings of more than 25 people indoors, or 250 people for outdoor gatherings.

The plaintiffs collectively argued that the governor’s restrictions on gatherings violated the First Amendment’s protections of free speech and assembly. The shelter-in-place order and closure of businesses, they contended, were a violation of their rights to substantive due process under the 14th Amendment.

Wolf’s lawyers had argued that the restrictions on gatherings and business openings were well within his powers to respond to a public health emergency. He also argued that the lawsuit was moot because the state had since allowed many businesses to resume, including in the counties suing the state. Because emergency orders had only been partially suspended, and not retracted in their entirety, Stickman ruled that plaintiffs were still in their right to challenge them, reports the Philadelphia Inquirer.

In regards to restrictions on gatherings, Stickman ruled that these were not “narrowly tailored” but “rather, they place substantially more burdens on gatherings than needed to achieve their stated purpose” of controlling the transmission of the virus.

The fact that the governor’s orders allow people to visit malls, restaurants, and stores in greater numbers than what the state’s restrictions on gatherings permit showed that the latter were overly broad, Stickman wrote. His opinion also cites comments from Wolf’s chief of staff about how large protests—which the governor attended—didn’t lead to a “super spreader” event as evidence that restrictions on gatherings were overly broad.

Stickman similarly ruled that Wolf’s order closing non-life sustaining businesses was also overly broad and arbitrary, and deprived Pennsylvanians of their right to earn a living under the 14th Amendment. Stickman also wrote that population-wide lockdowns are “such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional.”

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Classes #8: The Tenth Amendment and Chain of Title

Class 8: Tenth Amendment

  • The Tenth Amendment (348-349)
  • New York v. United States (355-368)
  • Printz v. United States (368-383)

Class 8: Chain of Title, Person Protected, Notice, and Title Insurance

  • Chain of Title Problems, 692
  • Lewis v. Superior Court, 697-702
  • Harper v. Paradise, 702-707

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Classes #8: The Tenth Amendment and Chain of Title

Class 8: Tenth Amendment

  • The Tenth Amendment (348-349)
  • New York v. United States (355-368)
  • Printz v. United States (368-383)

Class 8: Chain of Title, Person Protected, Notice, and Title Insurance

  • Chain of Title Problems, 692
  • Lewis v. Superior Court, 697-702
  • Harper v. Paradise, 702-707

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Contrary to What Ted Cruz Thinks, Prepubescent Twerking Does Not Make Cuties Illegal

Cuties-Netflix

The French film Cuties, currently available on Netflix, has outraged American politicians who say it sexualizes prepubescent girls. Rep. Tulsi Gabbard (D–Hawaii), a former presidential contender, warns that Cuties, which depicts an 11-year-old’s participation in a risqué dance troupe that flouts the values of her conservative Muslim family, “will certainly whet the appetite of pedophiles & help fuel the child sex trafficking trade.” Sen. Ted Cruz (R–Texas) goes even further, suggesting that Cuties is illegal. Whatever your take on the film’s merits, Cruz presents no evidence to substantiate that claim.

In a letter he sent Attorney General William Barr on Friday, Cruz urges the Justice Department to “investigate the production of ‘Cuties’ and Netflix’s distribution of the film in order to determine whether Netflix, any of its executives, or anyone involved with the making of ‘Cuties’ violated any federal laws against the production and distribution of child pornography.” But he conspicuously fails to explain how the film runs afoul of those statutes.

“The film routinely fetishizes and sexualizes these pre-adolescent girls as they perform dances simulating sexual conduct in revealing clothing, including at least one scene with partial child nudity,” Cruz writes. “These scenes in and of themselves are harmful. And it is likely that the filming of this movie created even more explicit and abusive scenes, and that pedophiles across the world in the future will manipulate and imitate this film in abusive ways.”

Except for Cruz’s fact-free speculation about scenes that did not make it into the final movie, none of this supports his claim that Cuties qualifies as child pornography, which federal law defines as a “visual depiction” of “sexually explicit conduct” involving people younger than 18. While the definition encompasses “simulated sexual intercourse,” that phrase is not broad enough to cover the scenes described by Cruz.

As the Supreme Court explained in a 2008 opinion by Justice Antonin Scalia, “‘simulated’ sexual intercourse is not sexual intercourse that is merely suggested, but rather sexual intercourse that is explicitly portrayed, even though (through camera tricks or otherwise) it may not actually have occurred.” Scalia added that “the portrayal must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera.” Similarly, a 2008 rule issued by the Justice Department says “simulated sexually explicit conduct means conduct engaged in by performers in a visual depiction that is intended to appear as if the performers are engaged in actual sexually explicit conduct, and does so appear to a reasonable viewer.”

Twerking by clothed 11-year-old dancers, however much it may trouble politicians and parents, plainly does not fit that description. Nor does the film’s potential appeal to pedophiles transform it into contraband.

As The New York Times notes, Cuties director Maïmouna Doucouré, who based the protagonist on her own experiences as a child of Senegalese immigrants growing up in Paris, says she is disturbed by some of the same cultural tendencies that bother Cruz and Gabbard:

“I recreated the little girl who I was at that age,” she said. “Growing up in two cultures is what gave me the strength and the values I have today.”

“As a child, that question of how to become a woman was my obsession,” she added.

Ms. Doucouré has said the idea for the film came to her after she attended a neighborhood gathering in Paris where she saw a group of 11-year-olds performing a “very sexual, very sensual” dance. She said she spent a year and a half doing research and meeting with hundreds of preteens to prepare for the film.

“I needed to know how they felt about their own femininity in today’s society and how they dealt with their self-image at a time when social media is so important,” she told Netflix.

The more sexualized a woman appears on social media, the more girls will perceive her as successful, Ms. Doucouré said.

“Children just imitate what they see to achieve the same result without understanding the meaning,” she said. “And yeah, it’s dangerous.”

According to Netflix, Cuties is “a social commentary against the sexualization of young children.” Whether or not you buy that, the legality of Cuties does not hinge on the director’s motivation or the film’s anticipated social effects.

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Milton Friedman Accused of Making Corporations Greedy

scmpphotos151711

The New York Times brings you news that’s news to you: Before evil libertarian Milton Friedman came along, corporations did nothing but help the people in pursuit of “social responsibility.”

This is the implication of an overkill series of think pieces and a roundtable hooked to Friedman’s essay “The Social Responsibility of Business is to Increase its Profits,” which the Times itself ran in 1970. The newspaper now insists, without rigorous evidence, that this article was “arguably the most consequential economic idea of the latter half of the 20th century.” (It also argues that businesses are now turning against the idea that their only social responsibility is to their shareholders.)

It would require a lot more facts and analysis than the Times chooses to present to prove that corporations decided in the past 50 years to try to make profits their main concern because of a New York Times article by an economist. People starting and running businesses have traditionally done so to make a living and to make the business do well; attributing this to Friedman’s “theories on the primacy of shareholders and the priority of profits” requires more business history and social history than the paper is able to do.

The paper does quote Marc Benioff of Salesforce, angry at Friedman, claiming that in business school in the 1980s Friedman somehow uniquely imbued a generation with the idea that business should be focused on profits. This feels underargued, as does Benioff’s insistence that “obsession with maximizing profits for shareholders has brought us: terrible economic, racial and health inequalities; the catastrophe of climate change.”

In one contribution to the package, Kurt Andersen, the formerly witty editor of Spy magazine, darkly warns that libertarians like Friedman bamboozled liberals by playing on their affection for the idea of freedom. He widens his attack beyond the specifics of the “corporate social responsibility” anniversary news hook to angrily presume that somehow government is doing a lot less to manage American wealth and choices than it was 50 years ago and that Aquarian Age dumbos hypnotized by the belief that people should be free to be you and me, man, allowed this to happen by elevating Friedman and his libertarian hordes to control of the world.

Andersen also thinks that “Theory of the Firm,” a much-cited 1976 journal article by Michael C. Jensen and William H. Meckling that operationalized some of Friedman’s ideas, shaped the world because it has been so widely cited in other academic articles, which is at least something toward trying to prove the package’s point, but perhaps not everything. Andersen concludes by blaming Friedmanism for many corporations’ propensity these days to spend money propping up their own stock prices.

Reason ran 15 years ago a roundtable hashing over these same issues on the article’s 35th anniversary.  Many of the points that various Times contributors made this week were already made in our pages then.

John Mackey, founder and CEO of Whole Foods, argued that there were other stakeholders involved in doing business in America whose needs should also be tallied, including “customers, employees, suppliers, and the community. Each of those groups will define the purpose of the business in terms of its own needs and desires, and each perspective is valid and legitimate.”

Mackey suggested that some of Whole Foods’ philanthropy, such as “5 percent giveaway” days to local charities, actually attracts customers. Lest Friedmanites accuse him of taking food from the mouths of his poor investors, he notes that those investors should be well aware that the company doesn’t do everything it can to maximize profits and willingly chose to invest anyway. (Not even Friedman would argue that some investors might not choose to invest in such a company, even if he believed it should never be insisted on as a corporate duty.)

Mackey also bragged about the high level of profits his company still managed to make with this perspective. He called on an older “free market authority” than Friedman, Adam Smith, to argue that “human nature isn’t just about self-interest. It also includes sympathy, empathy, friendship, love, and the desire for social approval. As motives for human behavior, these are at least as important as self-interest. For many people, they are more important.”

In Friedman’s contribution to the Reason roundtable, he told Mackey that there was little disagreement between them but rhetoric, and that much of Whole Foods’ philanthopy obviously did help its bottom line. That said, Friedman added it’s hard to know whether any resources that Whole Foods shifts to a charity “would do more good for society than investing that stream of profit in the enterprise itself or paying it out as dividends and letting the stockholders dispose of it.” Such corporate charity, he said, “makes sense only because of our obscene tax laws, whereby a stockholder can make a larger gift for a given after-tax cost if the corporation makes the gift on his behalf than if he makes the gift directly.”

Mostly, Friedman just didn’t believe centralizing that giving with corporate boards is any way to guarantee true overall social benefit: “Maximizing profits is an end from the private point of view; it is a means from the social point of view,” he wrote in the Reason roundtable. “A system based on private property and free markets is a sophisticated means of enabling people to cooperate in their economic activities without compulsion; it enables separated knowledge to assure that each resource is used for its most valued use, and is combined with other resources in the most efficient way.”

Friedman here was rather narrowly focused on the question of using corporate money to give to charity, as opposed to the larger question of whether corporations should just not make certain choices that earn them money if those choices could be seen as harming people outside their shareholders. Such choices might involve hiring decisions, pollution, and decisions about where to locate their businesses.

The third contributor to our roundtable, T.J. Rodgers of Cypress Semiconductors, posited that it is “simply good business for a company to cater to its customers, train and retain its employees, build long-term positive relationships with its suppliers, and become a good citizen in its community, including performing some philanthropic activity,” Rodgers wrote. “When Milton Friedman says a company should stay ‘within the rules of the game’ and operate ‘without deception or fraud,’ he means it should deal with all its various constituencies properly in order to maximize long-term shareholder value. He does not mean that a company should put every last nickel on the bottom line every quarter, regardless of the long-term consequences.”

Rodgers saltily wondered: “Why is it that when Whole Foods gives money to a worthy cause, it serves a high moral objective, while a company that provides a good return to small investors—who simply put their money into their own retirement funds or a children’s college fund—is somehow selfish?”

Rodgers also challenged those who believe what corporations generally do—sell goods and services that people choose to consume to make their lives better, providing jobs while doing so—is not in itself a “social good.” He asked Mackey to contemplate all the good we get from the cheap and abundent semiconductors that Rodgers’ company makes and sells. This wonderful result, he said, came about because his industry is “focused so relentlessly on increasing its profits, cutting his costs in the process.”

In any case, there certainly are things for a consistent libertarian to question in Friedman’s original article, particularly his belief that pollution—which imposes harms on others—is something corporations should care about only as much as the law requires them to. But this idea that he introduced a new and pernicious idea to American business culture is…underproven.

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Contrary to What Ted Cruz Thinks, Prepubescent Twerking Does Not Make Cuties Illegal

Cuties-Netflix

The French film Cuties, currently available on Netflix, has outraged American politicians who say it sexualizes prepubescent girls. Rep. Tulsi Gabbard (D–Hawaii), a former presidential contender, warns that Cuties, which depicts an 11-year-old’s participation in a risqué dance troupe that flouts the values of her conservative Muslim family, “will certainly whet the appetite of pedophiles & help fuel the child sex trafficking trade.” Sen. Ted Cruz (R–Texas) goes even further, suggesting that Cuties is illegal. Whatever your take on the film’s merits, Cruz presents no evidence to substantiate that claim.

In a letter he sent Attorney General William Barr on Friday, Cruz urges the Justice Department to “investigate the production of ‘Cuties’ and Netflix’s distribution of the film in order to determine whether Netflix, any of its executives, or anyone involved with the making of ‘Cuties’ violated any federal laws against the production and distribution of child pornography.” But he conspicuously fails to explain how the film runs afoul of those statutes.

“The film routinely fetishizes and sexualizes these pre-adolescent girls as they perform dances simulating sexual conduct in revealing clothing, including at least one scene with partial child nudity,” Cruz writes. “These scenes in and of themselves are harmful. And it is likely that the filming of this movie created even more explicit and abusive scenes, and that pedophiles across the world in the future will manipulate and imitate this film in abusive ways.”

Except for Cruz’s fact-free speculation about scenes that did not make it into the final movie, none of this supports his claim that Cuties qualifies as child pornography, which federal law defines as a “visual depiction” of “sexually explicit conduct” involving people younger than 18. While the definition encompasses “simulated sexual intercourse,” that phrase is not broad enough to cover the scenes described by Cruz.

As the Supreme Court explained in a 2008 opinion by Justice Antonin Scalia, “‘simulated’ sexual intercourse is not sexual intercourse that is merely suggested, but rather sexual intercourse that is explicitly portrayed, even though (through camera tricks or otherwise) it may not actually have occurred.” Scalia added that “the portrayal must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera.” Similarly, a 2008 rule issued by the Justice Department says “simulated sexually explicit conduct means conduct engaged in by performers in a visual depiction that is intended to appear as if the performers are engaged in actual sexually explicit conduct, and does so appear to a reasonable viewer.”

Twerking by clothed 11-year-old dancers, however much it may trouble politicians and parents, plainly does not fit that description. Nor does the film’s potential appeal to pedophiles transform it into contraband.

As The New York Times notes, Cuties director Maïmouna Doucouré, who based the protagonist on her own experiences as a child of Senegalese immigrants growing up in Paris, says she is disturbed by some of the same cultural tendencies that bother Cruz and Gabbard:

“I recreated the little girl who I was at that age,” she said. “Growing up in two cultures is what gave me the strength and the values I have today.”

“As a child, that question of how to become a woman was my obsession,” she added.

Ms. Doucouré has said the idea for the film came to her after she attended a neighborhood gathering in Paris where she saw a group of 11-year-olds performing a “very sexual, very sensual” dance. She said she spent a year and a half doing research and meeting with hundreds of preteens to prepare for the film.

“I needed to know how they felt about their own femininity in today’s society and how they dealt with their self-image at a time when social media is so important,” she told Netflix.

The more sexualized a woman appears on social media, the more girls will perceive her as successful, Ms. Doucouré said.

“Children just imitate what they see to achieve the same result without understanding the meaning,” she said. “And yeah, it’s dangerous.”

According to Netflix, Cuties is “a social commentary against the sexualization of young children.” Whether or not you buy that, the legality of Cuties does not hinge on the director’s motivation or the film’s anticipated social effects.

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Milton Friedman Accused of Making Corporations Greedy

scmpphotos151711

The New York Times brings you news that’s news to you: Before evil libertarian Milton Friedman came along, corporations did nothing but help the people in pursuit of “social responsibility.”

This is the implication of an overkill series of think pieces and a roundtable hooked to Friedman’s essay “The Social Responsibility of Business is to Increase its Profits,” which the Times itself ran in 1970. The newspaper now insists, without rigorous evidence, that this article was “arguably the most consequential economic idea of the latter half of the 20th century.” (It also argues that businesses are now turning against the idea that their only social responsibility is to their shareholders.)

It would require a lot more facts and analysis than the Times chooses to present to prove that corporations decided in the past 50 years to try to make profits their main concern because of a New York Times article by an economist. People starting and running businesses have traditionally done so to make a living and to make the business do well; attributing this to Friedman’s “theories on the primacy of shareholders and the priority of profits” requires more business history and social history than the paper is able to do.

The paper does quote Marc Benioff of Salesforce, angry at Friedman, claiming that in business school in the 1980s Friedman somehow uniquely imbued a generation with the idea that business should be focused on profits. This feels underargued, as does Benioff’s insistence that “obsession with maximizing profits for shareholders has brought us: terrible economic, racial and health inequalities; the catastrophe of climate change.”

In one contribution to the package, Kurt Andersen, the formerly witty editor of Spy magazine, darkly warns that libertarians like Friedman bamboozled liberals by playing on their affection for the idea of freedom. He widens his attack beyond the specifics of the “corporate social responsibility” anniversary news hook to angrily presume that somehow government is doing a lot less to manage American wealth and choices than it was 50 years ago and that Aquarian Age dumbos hypnotized by the belief that people should be free to be you and me, man, allowed this to happen by elevating Friedman and his libertarian hordes to control of the world.

Andersen also thinks that “Theory of the Firm,” a much-cited 1976 journal article by Michael C. Jensen and William H. Meckling that operationalized some of Friedman’s ideas, shaped the world because it has been so widely cited in other academic articles, which is at least something toward trying to prove the package’s point, but perhaps not everything. Andersen concludes by blaming Friedmanism for many corporations’ propensity these days to spend money propping up their own stock prices.

Reason ran 15 years ago a roundtable hashing over these same issues on the article’s 35th anniversary.  Many of the points that various Times contributors made this week were already made in our pages then.

John Mackey, founder and CEO of Whole Foods, argued that there were other stakeholders involved in doing business in America whose needs should also be tallied, including “customers, employees, suppliers, and the community. Each of those groups will define the purpose of the business in terms of its own needs and desires, and each perspective is valid and legitimate.”

Mackey suggested that some of Whole Foods’ philanthropy, such as “5 percent giveaway” days to local charities, actually attracts customers. Lest Friedmanites accuse him of taking food from the mouths of his poor investors, he notes that those investors should be well aware that the company doesn’t do everything it can to maximize profits and willingly chose to invest anyway. (Not even Friedman would argue that some investors might not choose to invest in such a company, even if he believed it should never be insisted on as a corporate duty.)

Mackey also bragged about the high level of profits his company still managed to make with this perspective. He called on an older “free market authority” than Friedman, Adam Smith, to argue that “human nature isn’t just about self-interest. It also includes sympathy, empathy, friendship, love, and the desire for social approval. As motives for human behavior, these are at least as important as self-interest. For many people, they are more important.”

In Friedman’s contribution to the Reason roundtable, he told Mackey that there was little disagreement between them but rhetoric, and that much of Whole Foods’ philanthopy obviously did help its bottom line. That said, Friedman added it’s hard to know whether any resources that Whole Foods shifts to a charity “would do more good for society than investing that stream of profit in the enterprise itself or paying it out as dividends and letting the stockholders dispose of it.” Such corporate charity, he said, “makes sense only because of our obscene tax laws, whereby a stockholder can make a larger gift for a given after-tax cost if the corporation makes the gift on his behalf than if he makes the gift directly.”

Mostly, Friedman just didn’t believe centralizing that giving with corporate boards is any way to guarantee true overall social benefit: “Maximizing profits is an end from the private point of view; it is a means from the social point of view,” he wrote in the Reason roundtable. “A system based on private property and free markets is a sophisticated means of enabling people to cooperate in their economic activities without compulsion; it enables separated knowledge to assure that each resource is used for its most valued use, and is combined with other resources in the most efficient way.”

Friedman here was rather narrowly focused on the question of using corporate money to give to charity, as opposed to the larger question of whether corporations should just not make certain choices that earn them money if those choices could be seen as harming people outside their shareholders. Such choices might involve hiring decisions, pollution, and decisions about where to locate their businesses.

The third contributor to our roundtable, T.J. Rodgers of Cypress Semiconductors, posited that it is “simply good business for a company to cater to its customers, train and retain its employees, build long-term positive relationships with its suppliers, and become a good citizen in its community, including performing some philanthropic activity,” Rodgers wrote. “When Milton Friedman says a company should stay ‘within the rules of the game’ and operate ‘without deception or fraud,’ he means it should deal with all its various constituencies properly in order to maximize long-term shareholder value. He does not mean that a company should put every last nickel on the bottom line every quarter, regardless of the long-term consequences.”

Rodgers saltily wondered: “Why is it that when Whole Foods gives money to a worthy cause, it serves a high moral objective, while a company that provides a good return to small investors—who simply put their money into their own retirement funds or a children’s college fund—is somehow selfish?”

Rodgers also challenged those who believe what corporations generally do—sell goods and services that people choose to consume to make their lives better, providing jobs while doing so—is not in itself a “social good.” He asked Mackey to contemplate all the good we get from the cheap and abundent semiconductors that Rodgers’ company makes and sells. This wonderful result, he said, came about because his industry is “focused so relentlessly on increasing its profits, cutting his costs in the process.”

In any case, there certainly are things for a consistent libertarian to question in Friedman’s original article, particularly his belief that pollution—which imposes harms on others—is something corporations should care about only as much as the law requires them to. But this idea that he introduced a new and pernicious idea to American business culture is…underproven.

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Donald Trump, Bob Woodward, and the Noble Lie

sipaphotoseleven026408

What did Donald Trump know, and when did he know it? According to Bob Woodward’s new book, Rage, and the interview tapes the veteran reporter released last week, the president acknowledged the seriousness of the coronavirus in private interviews much earlier than he did public. Are there times when presidents should tell what they perceive as noble lies to forestall panic? Or, as Woodward suggests, do those obfuscations simply prevent Americans from rallying around and solving serious problems together?

Regular Reason Roundtable podcasters Nick Gillespie and Katherine Mangu-Ward are joined by special guests Eric Boehm and Zach Weissmueller for a 20th-century-flashback episode to discuss whether epidemiology is politics, whether movies are politics, whether sports are politics, and whether all of those things have always been politics.

Plus Gillespie gets ratioed, Mangu-Ward gets literary, Weissmueller gets serious, and Boehm gets emo in their pop culture recommendations.

Audio production by Ian Keyser and Regan Taylor.

Music: “Drizzle to Downpour” by Silent Partner and “Hide the Horror” by Asthmatic Astronaut.

Relevant links from the show:

Bob Woodward on 60 Minutes

Review: Coup 53,” by Eric Boehm

How China Corrupted the World Health Organization’s Response to COVID-19,” by Zach Weissmueller

The NFL Is Back. So Is the National Anthem Controversy. And Now There Are Two Anthems,” by Eric Boehm

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Donald Trump, Bob Woodward, and the Noble Lie

sipaphotoseleven026408

What did Donald Trump know, and when did he know it? According to Bob Woodward’s new book, Rage, and the interview tapes the veteran reporter released last week, the president acknowledged the seriousness of the coronavirus in private interviews much earlier than he did public. Are there times when presidents should tell what they perceive as noble lies to forestall panic? Or, as Woodward suggests, do those obfuscations simply prevent Americans from rallying around and solving serious problems together?

Regular Reason Roundtable podcasters Nick Gillespie and Katherine Mangu-Ward are joined by special guests Eric Boehm and Zach Weissmueller for a 20th-century-flashback episode to discuss whether epidemiology is politics, whether movies are politics, whether sports are politics, and whether all of those things have always been politics.

Plus Gillespie gets ratioed, Mangu-Ward gets literary, Weissmueller gets serious, and Boehm gets emo in their pop culture recommendations.

Audio production by Ian Keyser and Regan Taylor.

Music: “Drizzle to Downpour” by Silent Partner and “Hide the Horror” by Asthmatic Astronaut.

Relevant links from the show:

Bob Woodward on 60 Minutes

Review: Coup 53,” by Eric Boehm

How China Corrupted the World Health Organization’s Response to COVID-19,” by Zach Weissmueller

The NFL Is Back. So Is the National Anthem Controversy. And Now There Are Two Anthems,” by Eric Boehm

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Federal Regulations Have Made Western Wildfires Worse

Parts of the western United States look like scenes from an apocalyptic movie—a red-orange tinge across everything, literally blotting out the sun, as more than three million acres burn.

The fires are running rampant, despite firefighters’ best efforts, across California, Oregon, and Washington state. The human cost is huge: 35 people have already died, and more than 4,000 homes have burned. Yet these fires could have been stopped before they got this big, were it not for over-restrictive regulations that have made necessary forest management techniques impossible.

Take controlled burns: fires that are lit on purpose, intentionally burning tinder to keep potentially larger, unintentional wildfires from finding fuel. Especially since the 1960s, efforts to extinguish all fires—even natural, low-impact forest fires that serve as nature’s equivalent of a controlled burn—have made forests more susceptible to larger fires and have made controlled burns more and more necessary.

But the regulatory requirements one must meet before starting a controlled burn are complex and lengthy. According to Jonathan Wood, an attorney with the Pacific Legal Foundation and an adjunct fellow with the Property and Environment Research Center, the National Environmental Policy Act requires “a couple-thousand-page document analyzing every single conceivable impact to the environment that the plan might have.” This is a public process, Wood adds, that “often results in litigation.” There’s even more paperwork when the controlled burn might overlap with areas designated as critical habitat for an endangered species.

“What you’ll often find,” Wood says, “is that there are projects which have been extremely well-vetted, which have been years in the work, there will be a 5,000-page document, which no one could conceivably ever read because it’s so long and complicated, but then the project will still get put on hold for an indefinite period of time, because some special interest group filed a lawsuit.” So much time is spent considering the ramifications of an action; little is spent considering the impact of doing nothing.

From 1999 to 2017, an average of 13,000 acres of California were subjected to controlled burns each year. In February 2020, Nature Sustainability published a report arguing that California needs to burn 20 million acres of forest in order to restore forest health.

The Clean Air Act of 1990 creates another obstacle. The law treat the smoke from a controlled, prescribed burn as a pollutant that must be analyzed and permitted before the burn can be done. The smoke from a wildfire is not similarly scrutinized. But needless to say, the environmental impact of a multi-state wildfire is much larger than that of a smaller controlled burn.

There is no magic bullet when it comes to the issue of preventing wildfires. But if we want to stop disasters of the scale, state and federal governments need to rethink forest management. They could start by easing the regulatory burden upon proven techniques.

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