Month: September 2019

Footage went viral this week of a woman, apparently from the United States, telling off some Hong Kong protesters for desecrating their city with protest posters and graffiti.

“Is this OK? Is this respectful?” she asks, pointedly gesturing to a defaced nearby wall, before trailing off with a tone-deaf trump card, “If my mother saw me write this…”

Do you really feel safe living under a police state.

— EdwinLau (@EdwinLa81362329) September 23, 2019

The woman then questions Hongkongers about the aims of their protests, which are now in their 16th week. The protests started over an extradition bill that would have allowed suspected criminals to be sent to mainland China, but they have expanded to embrace broader demands for more liberty and self-government.

Hong Kong is technically part of China, but the city’s citizens are allowed far more freedom—including freedom of the press and the right to elect some of their legislators—under the “one country, two systems” policy, which will be sunsetted in 2047. Many Hongkongers fear being placed under authoritarian Chinese rule, knowing that on the mainland censorship is the norm, the Communist Party must be appeased at every twist and turn, and political opponents get disappeared (often before showing up on state-run TV with a tearful coerced confession or histrionic display of remorse).

“Find me one case where violence led to a solution,” the woman in the video challenges the Hongkongers. “What a waste of time for everybody,” she says of the demonstrations. In fact, the protests have had at least one significant, if tentative, success: Hong Kong’s chief executive, Carrie Lam, conceded one of the movement’s five demands three weeks ago by withdrawing the bill that set off the protests.

“You guys value freedom more than safety. Do you agree? I think safety is more important than freedom,” the American says. “If you have a safe environment, you can communicate.”

But it’s freedom of speech that lets people be free of legal retribution for the words they say. It’s freedom of speech that allows people wide latitude in how they express themselves, and where, and to whom. A “safety” enforced and ensured by an authoritarian police force is a fickle promise if you piss off the people in charge, and it doesn’t necessarily mean safety for everyone. Sometimes one person’s feeling of safety comes at the expense of other people’s freedoms. Hongkongers, attempting to keep Beijing’s influence at bay, are keenly aware of this.

“China’s thinking is safety is more important than freedom,” the woman claims, before beginning to chip away at posters with her nail. “We shouldn’t do this! This is my city, too!”

At one point she speaks something that sounds like Cantonese. So she could be an expat living in Hong Kong, concerned about the degree to which the city’s been torn apart by civil unrest. But her safetysplaining makes it clear that she either doesn’t understand or just doesn’t care about how high the stakes are. One gets the impression that she hasn’t had her freedom seized for the sake of someone else’s safety.

Under full Chinese rule, Hongkongers will get neither freedom nor safety. An authoritarian regime that forces subservience to the party cannot be trusted to provide either one.

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I much enjoyed participating in this podcast, which was taped in front of a student audience Wednesday here at UCLA; here is IJ’s summary of the three cases my UCLA colleague Richard Re, Robert Everett Johnson (Jones Day), and I discussed:

After a student newspaper at the University of California, San Diego published a piece satirizing safe spaces and trigger warning, the student newspaper pulled funding for all print media. A First Amendment violation? And…

When doling out federal grant money for community policing efforts, the DOJ gives preference to local departments that promise to cooperate with federal immigration efforts. Which, says Los Angeles, would actually undermine community trust in police. Did the DOJ exceed the powers delegated to it by Congress? And …

Religious organizations need not comply with some aspects of the Americans with Disabilities Act. But does the so-called “ministerial exception” extend to a Catholic school that fired a fifth grade teacher who needed time off for chemotherapy?

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There is little question that Timothy Trybus, the obnoxious drunk who angrily confronted Mia Irizarry as she was preparing for a birthday party at a Chicago park in June 2018, was guilty of disorderly conduct. He may also have committed simple assault. But both of those offenses are Class C misdemeanors, punishable by up to 30 days in jail. So why does he face up to five years in prison?

It is entirely because of the opinions Trybus expressed during his tirade, which this week led a jury to convict him of two felony hate crimes.

This case is highly instructive for anyone who doubts that hate crime laws punish people for what would otherwise be constitutionally protected speech. If Trybus had yelled at Irizarry because he hates birthday parties or because she was wearing a Green Bay Packers hat, he might still have been arrested for harassing her, but he would not be facing a prison sentence. Because he yelled at Irizarry about her Puerto Rican flag T-shirt, his misdemeanors became felonies.

A viral cellphone video recorded by Irizarry, which shows an audibly intoxicated and belligerent Trybus repeatedly harassing her, provided the damning evidence of his benighted views. “Why are you wearing that?” Trybus asks, pointing at the flag shirt. “This is America….You’re not gonna change us, you know that?…You should not be wearing that in the United States of America….If you’re an American citizen, you should not be wearing that shirt in America.”

Under Illinois law, Trybus’ behavior pretty clearly qualified as disorderly conduct, which includes “any act” performed “in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.” His actions may also have amounted to assault, a charge that applies to anyone who “without lawful authority…knowingly engages in conduct which places another in reasonable apprehension of receiving a battery.”

Trybus’ lawyer, David Goldman, questioned whether Irizarry was “reasonably in fear of receiving a battery,” noting that he never touched her and that she remained calm throughout the episode. But in these circumstances, it would not be unreasonable for an unaccompanied woman to fear that the angry, intoxicated man who repeatedly rebuked her and refused to leave her alone might be capable of violence.

Either way, both of these offenses are misdemeanors. What made them felonies was the Illinois hate crime law, which applies “when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals,” someone commits any of several offenses, including assault and disorderly conduct. A hate crime is a Class 4 felony, punishable by up to three years in prison, for a first offense and a Class 3 felony, punishable by two to five years in prison, for a second offense if it is committed in “a public park.”

To put it another way, the maximum sentence for Trybus’ offenses is 60 times as long as it would have been if prosecutors had not invoked the hate crime statute. And that staggering multiplier applies purely because the object of his ire was the Puerto Rican flag on Irizarry’s shirt, suggesting that he targeted her because of her race, color, or ancestry. Trybus could spend an extra 59 months behind bars for no reason other than the content of his beliefs, as opposed to the manner in which he expressed them. That clearly amounts to punishing him for his opinions, which is not something the government should be doing in a society that claims to respect freedom of conscience and freedom of speech.

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Yet another study has concluded that the hoops U.S. women must currently jump through to obtain birth control are unnecessary. In “A Study of Telecontraception,” published in The New England Journal of Medicine, researchers show that it can be safe to get a birth control pill prescription through online consultation and then receive the medicine.

The researchers employed “secret shoppers” to seek birth control prescriptions online, with some indicating conditions that would make it unsafe to take certain brands or, in some cases, to take any oral contraceptive at all. The study was limited—it involved seven women, nine companies, and 63 virtual visits between October 2018 and March 2019. But the results are promising.

In almost all cases—93 percent—the providers followed the Centers for Disease Control and Prevention’s guidelines. Oral contraceptives were prescribed in just three out of 45 visits with potential red flags. That, the authors say, suggests “adherence to guidelines among telecontraception vendors may be higher than it is among clinics that provide in-person visits.”

Writing in the New England Journal of Medicine letters section yesterday, the authors—Tara Jain, Eleanor B. Schwarz, and Ateev Mehrotra, all of Harvard Medical School—define telecontraception as “the provision of contraception through a website or smart-phone app” and note that it has “recently emerged as an alternative to provision at clinic visits.” Some of their findings:

Each visit lasted a mean of 7.5 minutes, during which patients completed an online  questionnaire. Two vendors provided a video call during the visit immediately after patients completed the questionnaire. In 20 visits (32%), a follow-up interaction occurred in the form of text messaging with three vendors, a phone call with two vendors, and a video call with one vendor. Three vendors did not require patient–provider interaction. A prescription was sent electronically to a local pharmacy on the same day as the visit or mailed to the patient’s home within a mean of 7 days (range, 3 to 14 days). The mean total cost (including the initial visit and any required follow-up visits) for a 12-month prescription for an uninsured patient was $313 (range, $67 to $519).

Yesterday was also “World Contraception Day,” marked by a push to make birth control pills available over-the-counter. Activists aim to “free the pill” from doctor’s visits, prescriptions, and trips to the pharmacy. It’s a policy that many medical professionals have recommended, it could go a long way toward curbing unintended pregnancies, and it could truly expand access (not just insurance coverage) when it comes to birth control.

Emergency contraception has for years been available without a prescription. But politics and bureaucracy have prevent the same from happening with regular birth control pills.

This week the American College of Obstetricians and Gynecologists updated its 2012 recommendation to say that not just the pill but all forms of hormonal birth control, include vaginal rings and contraceptive patches, should be available over the counter.

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