Month: February 2014

Early this morning, Michael Taylor became the
fourth inmate in four months to be executed by the state of
Missouri with drugs obtained from unknown sources. Taylor was on
death row for abducting, raping, and murdering a 15-year-old girl
in 1989.

Missouri has a history of flouting the law when it comes to its
recent executions. Last month, the state executed convicted
murderer Herbert Smulls with pentobarbital that was
likely illegally obtained from The Apothecary Shoppe, an
Oklahoma compounding pharmacy not licensed to do business in the
state of Missouri.

Missouri executed Smulls
while his appeal was still pending in the United States Supreme
Court. The Supreme Court denied Smulls’ final stay request at 10:24
p.m., but Smulls was pronounced dead four minutes earlier at 10:20
p.m. This was the third straight execution carried out by Missouri
corrections officials while appeals were still being considered by
courts. Taylor, however, was executed after his appeals were
denied.

Little is known about the drugs used to execute these four men
prior to their executions. Indeed, a number of states that still
carry out the death penalty, including Missouri, have become much
more secretive about where they have been procuring execution drugs
from since European suppliers of the two FDA-approved drugs made
them unavailable for executions in the United States in 2010 and
2011.

While Smulls and the other men were executed with drugs likely
obtained from the Apothecary Shoppe, the compounding pharmacy

agreed to not provide the state with drugs for Taylor’s
execution. Last week, state officials
announced they had obtained pentobarbital from another unnamed
source. Information about the source and the drug is crucial to
know, as unknown or untested drugs are more likely to result in a
painful death, therefore resulting in cruel and unusual
punishment.

Without this information, lawyers are left only to assume the
state carried out this and previous executions in a way that
respected the constitutional rights of the condemned.

A similar story will play out in Florida this evening. Tonight,
Florida is set to
execute Paul Howell, who was convicted of killing a state
highway patrolman with a pipe bomb in 1992. Howell will be the
fourth person executed in Florida with a new combination of drugs
that have been challenged by lawyers of condemned prisoners as a
violation of the Eighth Amendment, which prohibits cruel and
unusual punishment. So far, challenges to the state have been
unsuccessful, and it’s likely that Howell’s execution will take
place as scheduled.

In 2013, Republican Florida Governor Rick Scott signed the
“Timely Justice Act” into law, which seeks to accelerate the
state’s death penalty process. The law
requires the governor to sign a death warrant within 30 days of
the conclusion of clemency review and schedule an execution date
within 180 days after the warrant is signed. Florida currently has
403 inmates on death row. Since 1976, 77 men have been executed in
Florida, and 24 Florida death row prisoners have been exonerated –
more than any other state.

Recent executions in Missouri and Florida highlight a troubling
trend that’s been taking place across the country. States, with
little to no oversight, are shoving new and experimental drugs into
criminals’ veins while keeping information about these drugs a
closely guarded secret.

Do Americans–particularly those in the tech
industry–really care about privacy? Nawaf Bitar, a security
executive with Juniper Networks, posed this question at the
RSA Conference on
cybersecurity yesterday, and offered a few ideas on how to act if
they want to affect change.

“Our privacy is being invaded. Our intellectual property is
being stolen. The attack on our information is outrageous,”

said Bitar, blaming “criminal organizations, corporate thieves,
hostile governments, friendly governments.” He gave the U.S.
government the benefit of the doubt that the post-9/11 surveillance
systems were well-intentioned but have caused “stunning” invasions
of privacy.

Most Americans would likely agree with the sentiments he
expressed, but Bitar doesn’t think they’re doing anything
meaningful about privacy breaches and are even complicit for
standing by as it continues.

“It’s easy to talk about outrage. Liking a cause on Facebook is
not outrage. Retweeting a link is not outrage,” he said,
contrasting such forms of “First World outrage” with historical
anti-government action, such as the Tiananmen Square protests and
the self-immolation of Tibetans.

Bitar is correct in that internet activism is sometimes without
impact.
Critics of slacktivism can
point to
studies that show Facebook “likes” for charities actually
result in less financial support. But, physical protests aren’t
necessarily a better way to solve internet issues. For example,
“The Day We Fight Back” rallies against the National Security
Agency earlier this month
fell flat, whereas the web-based initiatives against the Stop
Online Piracy Act in 2012 played a major
role in preventing the bill from moving forward.

As PC Magazine
notes, the security executive “only briefly touched on
solutions” of his own.

Bitar called upon the crowd to reevaluate whether or not privacy
is a “real” value or just a “stated” one. He also suggested that in
order to maintain a “moral high ground,” industry workers would
have to resist waging cyberwars of aggression and instead could
develop “defenses” that would “interfere with attackers… break
algorithms… [and] disrupt data collection” to the point that
malicious entities would get frustrated and give up.

Today five senators—Barbara Boxer
(D-Calif.), Richard Durbin (D-Ill.), Tom Harkin (D-Iowa), Richard
Blumenthal (D-Conn.), and Edward Markey (D-Mass.)—introduced
“legislation to protect children from e-cigarettes.” To be more
precise, the bill aims to protect children from speech about
e-cigarettes. The Protecting Children from Electronic
Cigarette Advertising Act authorizes the Federal Trade
Commission to “determine what constitutes marketing e-cigarettes to
children” and “work with states attorneys general” to enforce a ban
on such marketing. Boxer et al. seem to have their own definition
of marketing e-cigarettes to children, and it is pretty broad:

Senator Durbin said, “E-cigarette makers are adopting the
deplorable marketing tactics once used by tobacco companies to
entice children and teenagers into using their addictive product.
With fruit and candy flavors and glossy celebrity ads, e-cigarettes
makers are undeniably targeting young people. Unfortunately, it’s
working. We must take action now to prevent a new generation from
walking down the dangerous path towards nicotine addiction.”…

“It is troubling that manufacturers of e-cigarettes—some of whom
also make traditional cigarettes—are attempting to establish a new
generation of nicotine addicts through aggressive marketing that
often uses cartoons and sponsorship of music festivals and sporting
events,” said Senator Harkin….

“Tobacco companies advertising e-cigarettes—with flavors like
bubblegum and strawberry—are clearly targeting young people with
the intent of creating a new generation of smokers, and those that
argue otherwise are being callously disingenuous,” Senator
Blumenthal said.

Despite claims from some e-cigarette makers that they do not
market their products to children, e-cigarette manufacturers have
adopted marketing practices similar to those long used by the
tobacco industry to market regular cigarettes to youth—including
flavoring their products in candy or fruit flavors that appeal to
children, and using marketing materials featuring cartoon
characters reminiscent of those used to market traditional
cigarettes to children in previous decades.

I gather that if Boxer et al. were imposing restrictions on
e-cigarette marketing, rather than leaving that task to the FTC,
the rules would look something like this:

1. Do not mention fruit or candy flavors.

2. Do not hire celebrities to appear in ads.

3. Do not run “glossy” ads; matte finish is acceptable.

4. Do not use cartoon characters.

5. Do not sponsor music festivals or sporting events.

There is zero chance that such speech restrictions would be
upheld by the courts—yes, even with the avowed goal of “protecting
children.” In the 2001 case Lorillard
Tobacco v. Reilly, the Supreme Court rejected much
more modest restrictions on outdoor tobacco ads that were likewise
aimed at protecting impressionable minors from exposure to messages
about adult products. In 2012 the U.S. Court of Appeals for the 6th
Circuit cited that decision when it
overturned the advertising restrictions imposed by the Family
Smoking Prevention and Tobacco Control Act. That law banned the use
of color or pictures in outdoor ads, indoor ads (except those
in adult-only businesses), and print ads carried by
publications with significant underage readerships. “Although
the government can show a substantial interest in alleviating the
effects of tobacco advertising on juvenile consumers,” the 6th
Circuit said, “the provision of the Act banning the use of color
and graphics in tobacco advertising is vastly overbroad.”

Why was that rule “vastly overbroad”? Because it unreasonably
interfered with legitimate communication between tobacco companies
and their adult customers. Likewise the rules that Boxer et al. are
demanding. The notion that fruit flavors, celebrities, glossy ads,
cartoon characters, music, and sporting events appeal only to
minors is clearly unsupportable. At the risk of being deemed
“callously disingenuous” by Richard Blumenthal, I would like to
point out that many adults (particularly young women)
like the fruity flavors he finds so offensive, and
they should not be denied their preference based on the possibility
that it is shared by people younger than 18. For similar reasons,
advertising of adult products should not be restricted to
techniques that could not possibly interest a 17-year-old. If
given free rein, this impulse to shield “young people” from every
bad influence would reduce adults to the status of children.

Called out for the gay-bashing at the heart
of Arizona’s controversial SB
1062, advocates of the bill feign outrage and insist that all
they want is the freedom to associate or not associate based on
their religious beliefs. According to social conservative Bill
McMorris, libertarians embrace big government and make him
“participate in these new norms” by pointing out that Arizona
businesses already have the right to refuse service to
gays and lesbians and don’t require the assurance of a “we really
mean it” legislative backstop. I’m apparently especially awful for
referring to Arizona lawmakers as “homophobic pricks” and praising
a pizzeria that responded to the controversy by banning legislators
from its premises (a protection-worthy exercise of the right to
freedom of association, you might think).

But, pace McMorris, he and his social conservative comrades
aren’t broadly defending freedom of association, or even religious
liberty. Every step of the way, advocates of SB 1062 have made it
clear that the bill is meant to specifically protect the right to
shun nasty homosexuals. As he
writes at the Federalist:

[Tuccille] was referring to an updated state Religious Freedom
Restoration Act that the Arizona legislature passed this week. The
bill is designed to protect religious business owners from the
types of litigation and sanction that have seen massive fines
imposed upon Christian entrepreneurs for opting out of gay
weddings.

Joseph La Rue and Kerri Kupec of the Arizona-based Alliance
Defending Freedom explained their support for SB 1062 in the

Arizona Republic:

Elaine Huguenin, the Christian owner of Elane Photography,
declined to photograph what two women called their “commitment
ceremony.” The women had no trouble finding another photographer
because plenty of them were clamoring for their business. But the
couple sued Elaine’s business anyway, alleging that it had violated
a law banning sexual-orientation discrimination.

And, the Center for Arizona Policy
piled on, (Whoops! Just got a nasty visual.)

The critical need for this change came to light in a case
recently ruled on by the New Mexico Supreme Court. On August 22,
2013, the New Mexico Supreme Court unanimously ruled in Elane
Photography v. Willock that the state’s RFRA did not apply in
a case where a private party sought to enforce a state law against
another private party.

Got it. It’s not about gays at all—except that it really, really
is. But Arizonans already have the right to refuse service to gays
and lesbians. As Reason‘s Scott Shackford
wrote:

[S]exual orientation is not included in Arizona’s
public accommodation laws. Discrimination against gays is
actually legal in a lot of places in America still. What Senate
Bill 1062 does is essentially tweak the state’s existing freedom of
religion laws to say that, no really, people in Arizona have the
right to the free exercise of religion.

And the Los Angeles Times‘s Paresh Dave
pointed out that “New Mexico law specifically bars a public
accommodation from denying services to someone based on that
person’s sexual orientation or gender identity. Twenty-one states
have similar laws, according to Human Rights Campaign. Arizona
isn’t one of them.”

So, SB 1062 is the equivalent of promoting a law protecting the
specific right to call people “fags,” just in case the free speech
protections for that right ever slip.

Could the courts ever decide to reinterpret the law in
such a way as to force people (such as social conservatives) to do
business with customers who give them the creepy crawlies (such as
gays and lesbians)? Courts have creatively rewritten the law
before, so it’s possible.

But then, why not protect everybody‘s liberty? Make it
clear that the point is to shield freedom of association and
freedom of conscience for all, in a way that would protect the
right of gay-owned businesses to chase Bill McMorris out of their
stores as it would protect his right to toss them out of his place
of business. And certainly craft it to protect the right of all of
us to turn politicians away.

But SB 1062 backers have made it clear, from the beginning, that
this is all about their dislike of one group. This isn’t about
paring back government; it’s about using legislation to slap at
gays and lesbians.

Warren Severin, chairman of the Libertarian Party of Arizona,
put it nicely when he
pointed out:

While all individuals and non-government businesses retain an
absolute right to refuse to do business with anyone (including
government) for any reason, proposing a law to that effect is not
only redundant, but unnecessarily incites argument. …

The ‘bread and butter’ for the kind of politicians who would
propose such legislation is the division of the electorate. They
seek only to divide us (the American People) up into groups, pit
them against one another, and then offer to referee.

Bill McMorris says libertarians aren’t worth talking to so long
as we resist his buddies’ efforts to torment groups they don’t
like. To the contrary, McMorris and company will be worth our time
when they admit that freedom is for everybody.