Category: reason

The National Security Agency (NSA) is the latest intelligence agency spying on Americans without a warrant by buying access to their data.

That revelation comes from a letter released last week from Sen. Ron Wyden (D–Ore.) to Director of National Intelligence Avril Haines. “As you know,” Wyden wrote, “U.S. intelligence agencies are purchasing personal data about Americans that would require a court order if the government demanded it from communications companies.”

Now, Wyden writes, the snoop in question is the NSA, which is “buying Americans’ domestic internet metadata.” Such information “can reveal which websites they visit and what apps they use,” according to a press release from Wyden’s office.

Wyden is right that Haines is likely already aware of the practice: A report from the Office of the Director of National Intelligence (ODNI) completed in January 2022 (but only declassified in June 2023) found that the intelligence community “currently acquires a significant amount of [commercially available information] for mission-related purposes,” information which “can include credit histories, insurance claims, criminal records, employment histories, incomes, ethnicities, purchase histories, and interests” and “in some cases social media data.”

Data brokers collect and package this data for sale. Often this information is purchased by other companies for purposes like advertising, but increasingly, government agencies are purchasing the information for their own purposes: During the COVID-19 pandemic, the Centers for Disease Control and Prevention purchased cellphone location data in order to monitor compliance with lockdown orders; the IRS paid for similar data in an effort to track criminal suspects.

“Until recently, the data broker industry and the intelligence community’s (IC) purchase of data from these shady companies has existed in a legal gray area, which was in large part due to the secrecy surrounding the practice,” Wyden wrote. “The secrecy around data purchases was amplified because intelligence agencies have sought to keep the American people in the dark.”

Wyden says he actually learned the NSA was buying Americans’ internet metadata in March 2021, but the agency “refused…to clear the unclassified information for public release” for nearly three years. “It was only after I placed a hold on the nominee to be the NSA director that this information was cleared for release.” Wyden includes letters from NSA officials written in December 2023, agreeing to allow the information to be released.

In Carpenter v. United States in 2018, the Supreme Court ruled that it was a violation of the Fourth Amendment for law enforcement to access cellphone location data without a warrant. The 2022 ODNI report noted that under Carpenter, “acquisition of persistent location information (and perhaps other detailed information) concerning one person by law enforcement from communications providers is a Fourth Amendment ‘search’ that generally requires probable cause.” But since “the same type of information on millions of Americans is openly for sale to the general public,” intelligence agencies “treat the information as” publicly available and “can purchase it.”

Similarly, Under Secretary of Defense for Intelligence and Security Ronald Moultrie advised Wyden that “I am not aware of any requirement in U.S. law or judicial opinion,” including Carpenter, that intelligence agencies “obtain a court order in order to acquire, access, or use information, such as [commercially available information], that is equally available for purchase to foreign adversaries, U.S. companies, and private persons as it is to the U.S. Government.”

That explanation is cold comfort when, as Wyden’s press release noted, spy agencies can “us[e] their credit card to circumvent the Fourth Amendment.” The intelligence community previously seemed to understand this, with the 2022 ODNI report noting that while it “cannot willingly blind itself to this information, it must appreciate how unfettered access to [commercially available information] increases its power in ways that may exceed our constitutional traditions or other societal expectations.” The collection of such data could also “raise the risk of mission creep,” as information “collected for one purpose may be reused for other purposes.”

The post NSA Purchases Internet Metadata To Spy on You Without a Warrant appeared first on Reason.com.

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Nearly a year ago, President Joe Biden issued an executive order aimed at “increasing the number of background checks conducted before firearm sales, moving the U.S. as close to universal background checks as possible without additional legislation.” According to the watchdog group Empower Oversight, which cites two unnamed “whistleblowers” at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the agency is working on regulations that would go all the way, purporting to require background checks for all private gun sales. It is hard to see how the ATF can do that “without additional legislation.”

Under current federal law, background checks are required only for sales by federally licensed dealers. A rule that the ATF proposed last September would expand the definition of “dealer” to encompass some but not all occasional gun sellers. But even that controversial proposal does not go as far as the plan described by Empower America’s sources, who say “the ATF has drafted a 1,300-page document in support of a rule that would effectively ban private sales of firearms from one citizen to another by requiring background checks for every sale.”

Federal law defines a gun dealer as someone who is “engaged in the business of selling firearms,” which until 2022 was defined as “devot[ing] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” The 2022 Bipartisan Safer Communities Act (BSCA) excised “with the principal objective of livelihood and profit” and replaced it with “to predominantly earn a profit.”

As the Congressional Research Service explains, that change was “intended to require persons who buy and resell firearms repetitively for profit to be licensed federally as gun dealers, even if they do not do so with ‘the principal objective of livelihood.'” According to the amendment’s supporters, “there was confusion” about whether the definition of dealers as people “engaged in the business of selling firearms” covered “individuals who bought and resold firearms repetitively for profit, but possibly not as the principal source of their livelihood.” The statutory definition still explicitly excludes “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

The proposed rule that the ATF published in the Federal Register on September 8 addresses what it means to be “‘engaged in the business’ as a dealer in firearms.” Previous proposals considered by the Obama administration and pitched by Vice President Kamala when she ran against Biden in the 2020 presidential primaries would have deemed someone a “dealer” if he sold more than a specified number of firearms in a year. But “rather than establishing a minimum threshold number of firearms purchased or sold,” the ATF says, “this rule proposes to clarify that, absent reliable evidence to the contrary, a person will be presumed to be engaged in the business of dealing in firearms” if he meets any of several criteria.

Someone would be presumptively considered a dealer, for example, if he “sells or offers for sale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and sell additional firearms.” Likewise if he “spends more money or its equivalent on purchases of firearms for the purpose of resale than the person’s reported taxable gross [income] during the applicable period of time.” Or if he “repetitively sells or offers for sale firearms” within 30 days after buying them, repetitively sells guns that are “new” or “like new” in the original packaging, or repetitively sells guns of “the same or similar kind” and “type.”

Some of these categories, especially the last one, could conflict with the statutory exclusion of collectors and hobbyists. And the ATF adds that “the activities set forth in these rebuttable presumptions are not exhaustive of the conduct that may show that, or be considered in determining whether, a person is engaged in the business of dealing in firearms.” It says “a person would not be presumed to be engaged in the business requiring a license as a dealer when the person transfers firearms only as bona fide gifts, or occasionally sells firearms only to obtain more valuable, desirable, or useful firearms for their personal collection or hobby, unless their conduct also demonstrates a predominant intent to earn a profit.”

That “predominant intent to earn a profit” criterion, which is supposed to conform with the change made by the BSCA, potentially extends the definition of “dealer” to encompass the collectors and hobbyists that Congress explicitly sought to protect. In essence, says Independence Institute gun policy expert David Kopel, the ATF is “purporting to require anyone who sells a firearm for a profit, ever,” to obtain a dealer’s license.

The plan that Empower Oversight describes would go even further. If it would in fact cover “every sale,” it would not matter whether the seller made money, let alone whether that was his “predominant intent.” That “seems like something that is legally impossible,” Kopel says.

It seems legally impossible because the only way to expand the federal background check requirement “without additional legislation” is by treating more sellers as dealers and requiring them to obtain licenses. The ATF claims the BSCA gave it the authority to do that. But that law plainly did not give it the authority to simply decree that anyone who buys a gun has to pass a background check.

States that notionally mandate “universal background checks” do so through laws that require private sellers to complete transactions via federally licensed dealers. Research suggests those requirements are widely flouted by gun owners who either are unaware of the law or object to the cost and inconvenience that compliance entails. In any event, this option is not available to the ATF “without additional legislation.”

Empower Oversight’s description of the ATF’s reported plan only adds to the puzzle. It refers to “a 1,300-page document in support of a rule that would effectively ban private sales of firearms from one citizen to another by requiring background checks for every sale.” The ATF’s entire rule elucidating its proposed definition of “engaged in the business,” including the agency’s legal rationale, is just 31 pages. What could the ATF possibly have to say on this subject that would take 1,300 pages, and how could a document of any length get around the statutory exemption for collectors and hobbyists? If the ATF is planning to “effectively ban private sales,” that could be accomplished only by requiring those collectors and hobbyists to be licensed as dealers, which flagrantly contradicts the treatment mandated by Congress.

Empower Oversight says “the document’s drafting is reportedly being overseen” by ATF Senior Policy Counsel Eric Epstein. On Wednesday, the group’s president, Tristan Leavitt, sent Attorney General Merrick Garland and ATF Director Steven Dettelbach a Freedom of Information Act request for relevant records, including emails to or from Epstein; communications among the ATF, the Justice Department, and the White House regarding Biden’s executive order; and communications about “regulating or banning the sale of firearms between private individuals.”

In his letter to Garland and Dettelbach, Leavitt notes the statutory and constitutional issues such a plan would raise. “Such an expansive rule that treats all private citizens the same as federal firearms licensees would circumvent the separation of powers in the Constitution, which grants ‘all legislative Powers’ to Congress while requiring that the President ‘take Care that the Laws be faithfully executed,'” he says. “To the extent such a rule prevents the private sale of firearms, it would also clearly violate the Second Amendment to the United States Constitution, which declares that ‘the right of the people to keep and bear Arms, shall not be infringed.'”

Biden has not been shy about trying to rewrite the law in pursuit of his gun control agenda, as illustrated by ATF rules dealing with pistol braces and “ghost guns,” which take a page from the Trump administration’s unilateral ban on bump stocks. But treating all gun sellers “the same as federal firearms licensees” would not only require an implausible reading of a supposedly ambiguous statute. It would fly in the face of clearly expressed congressional intent.

“Like Biden’s student debt bailout plan, such a sweeping rule seems almost certain to be struck down in the courts,” Leavitt says on X (formerly Twitter). “It’s thus hard to view it as anything other than a cynical [play] to energize his base in a presidential election year.”

The post Biden Reportedly Is Planning To Unilaterally Mandate Background Checks for All Gun Sales appeared first on Reason.com.

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Over the years, I’ve offered many explanations about why the trajectory of the national debt is deeply troubling. At this point, though, my worry isn’t rooted in a dogmatic adherence to the principles of a balanced budget. Nor does it come from my desire for a smaller government. Instead, I’m alarmed by politicians’ unwillingness to look at the numbers and have a serious discussion about changing course.

When I first started paying close attention, the U.S. was essentially carrying a credit card balance of 40 percent of America’s gross domestic product (GDP). Today, according to the Congressional Budget Office (CBO), that balance hovers around 98 percent. Imagine credit card debt equal to your yearly salary, interest costs piling up, and more inevitable debt coming your way. Congress doesn’t seem to mind, which partly explains why even optimistic scenarios project the debt to soar to a staggering 180 percent within 30 years.

Many politicians would rather pretend there’s nothing to fear; that the U.S. is such a powerhouse that there will always be people paying our bills. But even for a financial powerhouse of sorts, this reality raises questions about the kind of future we want to leave for the next generation. Further down the path we are on lies a point where interest payments alone consume such a large portion of the budget that government will be unable to fund essential programs and respond to unforeseen crises. We also risk inflation skyrocketing again, which makes the debt-to-GDP look more sustainable on paper as it worsens Americans’ standard of living. We also face the prospect of tax increases at a time when economic growth is slowing down.

Still, some would have us believe these are mere theoretical possibilities. That perspective requires the real imagination. The retirement of 75 million baby boomers is not a speculative event. Their exploding health care cost is also a reality happening now, and the obligation is set in law. As a result, the government’s deficits are ballooning, adding to our debt and interest costs. Even if interest rates remain low, deficits are undermining the very foundation of our fiscal stability. In 2021, the Manhattan Institute’s Brian Riedl wrote a comprehensive report warning of the folly of assuming interest rates will remain indefinitely low. His concerns have since been validated by higher rates further straining the budget.

CBO scenarios, in which the government never pays more than 4.4 percent interest rates for the next 30 years, seem increasingly pollyannaish. Rates above and beyond that are likely, and even a single percentage point will add trillions to the debt over the next few decades.

The pushback against what you’ve just read often comes from those who believe interest rates can remain perpetually low. That belief was the foundation of the fashionable but short-lived theory of “R versus G”—the relationship between real financing costs and economic growth. According to this theory, if economic growth (“G”) outpaces the debt’s financing costs (“R”), there’s little to worry about. Unfortunately, things fall apart as soon as R goes up, as we’ve seen in the last few years.

The main mistake behind the R-G theory has been believing that because interest rates had been declining and relatively low for years, they would always stay low. Many of these same people also believed that because we’d had no real inflation since the 1980s, inflation was somehow defeated.

Keep politicians’ propensity for wishful economic thinking in mind when, for example, someone argues that we can handle a debt-to-GDP ratio of 200-300 percent like Japan does. Japan is not a model we should emulate. Relative to America, Japan is poor and its economy stagnant, the victim of decades of slow economic and wage growth.

Let’s stop confusing the speculative with the imminent and tangible.

If we can finally clear that up, we can address the urgent need to find pragmatic solutions and get our national debt under control. This involves making difficult decisions, including, yes, reforming entitlement programs—especially Social Security and Medicare. And while some reform of the tax code is needed, we must also acknowledge that we cannot solely tax our way out of this situation. Raising taxes on the wealthy, while politically appealing to some, would not only fail to close the gap but also dramatically slow the same economic growth which was supposed to keep us ahead of the debt burden.

To accomplish all of that, we first need politicians who will stop pretending we can continue down this fiscal path.

COPYRIGHT 2024 CREATORS.COM.

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A recently published document reveals “smoking gun” evidence of COVID-19’s lab-based origin, according to Richard Ebright, a microbiologist at Rutgers and one of the earliest proponents of the lab leak hypothesis.

Ebright is referring to an invoice that shows an order for a particular enzyme that he believes scientists used to stitch together the genome for SARS-CoV-2, the virus that causes COVID-19. However, Alina Chan, a microbiologist affiliated with MIT and Harvard and co-author of Viral: The Search for the Origin of COVID-19, says that because the documents in questions are from early 2018, they do not constitute direct evidence, meaning there still “isn’t enough to say a lab accident happened beyond reasonable doubt.”

Emily Kopp, a science and health reporter working for the public health watchdog group U.S. Right to Know, obtained and published this latest batch of documents—which she obtained through a FOIA request to the U.S. Geological Survey—on January 18. The more than 1,400 pages are communications about and early drafts of the DEFUSE proposal, a grant application seeking funding from the Defense Advanced Research Projects Agency (DARPA) to collect and manipulate bat-borne viruses. EcoHealth Alliance, a U.S.-based nonprofit group, authored the grant, which they proposed as a collaboration between U.S.-based virologists and the Wuhan Institute of Virology, the lab located in the city where the first known cases of COVID-19 appeared. DARPA ultimately rejected the proposal as too risky, but critics like Ebright believe that the work likely continued on in Wuhan anyway.

Kopp joined Reason‘s Zach Weissmueller to discuss the documents on the latest episode of Just Asking Questions. Also joining them was mathematical biologist Alex Washburne, who co-authored a pre-print in October 2022 arguing the genome of SARS-CoV-2 had a “fingerprint” indicating that it was created in a lab. The virus that scientists proposed creating in the newly released DEFUSE documents shares several characteristics that Washburne and his colleagues flagged in the study, such as unusually uniform segment lengths and the presence of the enzyme that Ebright flagged as a “smoking gun.”

In this conversation, they discuss the documents in detail, the ways in which they validate predictions in Washburne’s paper, the remaining unknowns in the COVID origin case, comments from EcoHealth Alliance founder Peter Daszak seemingly downplaying that most of the proposed virology work would be done in China, and the difficulty of getting the scientific and media establishments to take new evidence pointing to a lab origin seriously.

U.S. Right to Know: U.S. scientists proposed to make viruses with unique features of SARS-CoV-2 in Wuhan

DEFUSE: PREEMPT Volume 1 no ESS HR00118S0017 EcoHealth Alliance DEFUSE 

Endonuclease fingerprint indicates a synthetic origin of SARS-CoV-2 | bioRxiv

Kristian Anderson criticizes Washburne’s study: “Poppycock” 

New Research Points to Wuhan Market as Pandemic Origin | The New York Times

The Huanan Seafood Wholesale Market in Wuhan was the early epicenter of the COVID-19 pandemic | Science

House Minority Permanent Select Committee on Intelligence Committee Report on Origins of COVID-19 Pandemic

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There is no pastime more beloved by Congress than beating up on social media executives. On Wednesday, members of the Senate Judiciary Committee engaged in yet another round of fact-free histrionics as they thunderously denounced four tech CEOs—Meta’s Mark Zuckerberg, X’s Linda Yaccarino, Snapchat’s Evan Spiegel, and Discord’s Jason Citron—for­ a litany of allegedly unsafe business practices.

Attending the committee meeting were the parents of several young people who tragically took their own lives after being scammed or bullied on social media; as such, the proceedings felt very much like a trial in which the CEOs—Zuckerberg, in particular—stood accused of literal child murder.

Many of the Senate’s anti-tech crusaders were present, including Republican Sens. Lindsey Graham (S.C.), Ted Cruz (Texas), and Josh Hawley (Mo.), and Democratic Sens. Dick Durbin (Ill.), Amy Klobuchar (Minn.), and Richard Blumenthal (Conn.). Sen. Elizabeth Warren (D–Mass.) wasn’t there, though she received several favorable shout-outs from the Republicans. Indeed, both sides of the political aisle were exceedingly pleased with themselves for acting in bipartisan fashion to wildly accuse four business leaders of complicity in despicable crimes against children.

If that sounds like an exaggeration, consider that Hawley prompted Zuckerberg to apologize to the families in the audience, and then faulted him for refusing to pay them damages from his personal fortune.

“Have you compensated the victims?” Hawley demanded.

There are two big problems with the senators’ approach: who they see as the villains, and what they see as the solutions. Let’s start with the first part.

First, it’s worth scrutinizing the harms being alleged here. The purpose of the hearing was to explore social media platforms’ efforts to combat child sexual abuse material (CSAM) and online exploitation more generally. Of course, all major social media platforms already prohibit CSAM and cooperate with law enforcement to identify and remove abusers. As Zuckerberg patiently explained, Facebook has made millions of reports to law enforcement and child advocacy organizations, and uses AI tools to automatically detect and eliminate abuse.

“We take down anything that we think is sexual abuse material,” said Zuckerberg at the hearing.

The social media platforms represented at the hearing all work tirelessly to eliminate CSAM. What critics are really alleging is that despite these efforts, some users of social media—including underage children and teenagers—still fall prey to pernicious behavior from sexual predators, scammers, and bullies. Take the example of Gavin Guffey, whose tragic death was referenced by Graham in his opening remarks. At age 17, Guffey fell victim to a sextortion scheme: A con artist tricked Guffey into sending sexual images of himself on Instagram, and then demanded compensation in exchange for keeping them private. Guffey eventually killed himself.

This is an appalling crime, and should be treated as such. In response, the victim’s father—Brandon Guffey, a South Carolina state representative—sponsored legislation to strengthen the law as it applies to sexual blackmail of a minor. Predators who engage in fraud, blackmail, and sexual manipulation should absolutely be held accountable for their crimes.

But the perpetrator of these crimes is not Mark Zuckerberg, or Linda Yaccarino, or any other tech executive. The perpetrator is the person who blackmailed Guffey; anyone trying to move the accountability spotlight to the platform itself is engaged in blame-shifting, in service of an agenda that is pro-regulation and pro-censorship. (More on that in a minute.)

In other contexts, the fact that Facebook itself is not to blame would be obvious. In 2010, Rutgers University student Tyler Clementi killed himself after his roommate secretly recorded him having sex with another male student. This became a big national story—understandably—and the roommate, Dharun Ravi, was prosecuted and convicted for invasion of privacy. Nobody thought the webcam company was at fault.

Many Republicans intuitively understand this principle when it comes to other subjects. Indeed, the GOP generally takes the position that if one person shoots another person, the victim ought not to sue the gun manufacturer. Guns don’t kill people, people do is a common maxim of Second Amendment supporters—and in my view, they’re right!

But when it comes to social media—where the extent of the harm to young people is not in any meaningful way settled, and in fact routinely exaggerated—many Republicans are marching in lockstep with their Democratic colleagues. At the hearing, Graham echoed the exact rhetoric of Democrats, accusing Zuckerberg and the others of having “blood on your hands.” Of course, Graham is far from the first political figure to make this exact claim: In July 2021, President Joe Biden accused Zuckerberg of literally “killing people” because Facebook and Instagram had not done more to purge content that was critical of COVID-19 mandates.

That’s the broader agenda of both the Democratic and Republican parties: greater government control over social media content.

In order to obtain this control, senators from both parties have sponsored legislation to repeal or reform Section 230, the federal statute that protects internet companies from some liability. Section 230 was a frequent punching bag at the Wednesday hearing.

“For the past 30 years, Section 230 has remained largely unchanged, allowing Big Tech to grow into the most profitable industry in the history of capitalism without fear of liability for unsafe practices,” said Durbin. “That has to change.”

Graham was even more explicit, calling on Congress to repeal Section 230 altogether. In the past, former President Donald Trump, Biden, Warren, Klobuchar, Cruz, Hawley, and other major political figures have all said similar things.

But without Section 230, free speech on social media would be fundamentally threatened. The reason that the platforms permit users to post content at will is Section 230, which establishes that the content in question is the responsibility of the user rather than the platform. If Facebook, Instagram, and X were liable for all the content that appeared in their feeds, they would have to vet it much more carefully. For one thing, this would dramatically increase the need for the platforms to engage in content moderation to protect themselves from libel lawsuits.

Does Graham really want that? Does Donald Trump? On the contrary, complaining that social media companies engage in too much moderation is a standard conservative talking point—and there’s merit to it. As revealed by independent investigations like Matt Taibbi’s Twitter Files and Reason‘s Facebook Files, those platforms censored contrarian content about elections and COVID-19 at the federal government’s behest. Republicans were rightly outraged. Killing or even limiting Section 230 plays directly into the hands of the would-be censors.

There’s much more to say on this subject than I have room for in this newsletter. (But if you’re interested, you should order my book, Tech Panic: Why We Shouldn’t Fear Facebook in the Future.) Suffice it to say that we should certainly have compassion for people who were victimized on social media, and we should continue to explore methods of detoxifying the platforms. But the agenda of the Senate Judiciary Committee is not the protection of children—it’s greater control over dissident speech. Don’t fall for it.

The post Mark Zuckerberg Is Not a Murderer, Mr. Senator appeared first on Reason.com.

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On Wednesday afternoon, the closely divided House of Representatives passed a much-heralded bipartisan $78 billion tax deal by a wide 357–70 margin.

The tax bill revives and/or expands tax credits for small businesses, families with children, and affordable housing producers.

“The Tax Relief for American Families and Workers Act is pro-growth, pro-jobs, pro-America,” said Rep. Jason Smith (R–Mo.) and Sen. Ron Wyden (D–Ore.), the primary architects of the legislation, in a joint statement reported by Politico. “It’s a strong commonsense bipartisan step forward in providing tax relief for working families and small businesses.”

The most eye-catching part of the bill is its expansion of the Child Tax Credit. The House bill also expands the “refundable” portion of the credit that very low-income families receive, meaning they’ll receive tax credits that exceed the value of their tax liability.

Republicans and Democrats have both supported child tax credits as a simple and direct means of cutting child poverty.

On the other hand, American Enterprise Institute scholars Scott Winship and Kevin Corinth have argued that the design of the tax credit will create work disincentives for low-income families, encouraging them to take part-time over full-time employment or even drop out of the labor force entirely.

“What is a refundable tax credit? It’s welfare by a different name. We’re going to give cash payments, checks, to people who don’t even pay taxes,” said Rep. Thomas Massie, (R–Ky.), per PBS. The Wall Street Journal editorial board called the child tax credit provisions a “trojan horse.”

On the flip side, some Progressive Democrats voted no on the bill because it didn’t expand the child tax credit enough.

The legislation allows businesses to immediately and fully deduct their development and research spending, interest costs, and capital depreciation from their tax bills. That’s earned it support from free market, low-tax groups like Americans for Tax Reform.

The bill also sunsets a pandemic-era employee retention tax credit that’s proven massively more expensive than expected and has been riddled with fraud.

Everyone is going to find something to like and dislike about the House bill. Perhaps the most important takeaway is that it continues America’s long tradition of doing literally all policy through the tax credits.

The bill now goes to the Senate, where it’s expected to have a tougher time passing.

California lawmakers are getting increasingly serious about reparations. On Wednesday, the California Legislative Black Caucus released 14 bills intended to right the wrongs of past racist policies.

The bills are wide-ranging. One would require advanced notice to be provided when grocery stores close in underserved communities. Another would restrict the use of solitary confinement. There’s also a bill that would provide state funding to “specific groups,” which Politico described as potentially unconstitutional.

Interestingly for property rights advocates, the bill would look to reverse past instances of “race-based” eminent domain. That bill would “restore property taken during raced-based uses of eminent domain to its original owners or provide another effective remedy where appropriate, such as restitution or compensation,” said California Sen. Steven Bradford (D–Inglewood), reported Cal Matters.

Notably missing from the package is any sort of cash payments to the descendants of slaves.

The Biden administration’s slow-burning war on gas stoves continues. Earlier this week, the U.S. Department of Energy released a final rule creating new, tougher energy efficiency standards for home appliances that affect both gas and electric stoves.

Earlier versions of this rule could have forced many gas stoves off the market entirely, complimenting local and state efforts to ban gas appliances in new development. The administration’s final rule is more modest. The Washington Post reports it will affect 3 percent of gas stoves on the market.

The Energy Department’s final rule “is less stringent than the initial proposal that would have forced most gas models off the market, there really shouldn’t be any such federal regulatory meddling in the decisions of consumers,” said Ben Lieberman of the Competitive Enterprise Institute. He cautioned that the Biden administration is still working on tougher regulatory standards for more home appliances like dishwashers, washing machines, ceiling fans, furnaces, and water heaters.

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Scenes From D.C. 

The normally tranquil mood of the Reason D.C. office was interrupted earlier this week by a shooting just down the block near Dupont Circle. Our crime photographer/managing editor Jason Russell captured the subsequent police activity.

One man, possibly in a vehicle, was shot by another man who drove off, in what sounds like a possible road rage incident. The victim was taken to the hospital with a non-fatal shoulder wound.

Like most cities, D.C. saw a big increase in violent crime during the pandemic. Unlike most cities, our violent crime rate is staying persistently high.

D.C. residents vented their frustrations at city officials yesterday at a community meeting, where the D.C. Attorney General said, failing to read the room, that the city couldn’t prosecute its way out of the crime wave.

During a panel, DC residents voiced their frustrations and demanded accountability from city leaders in addressing the violent crime epidemic that's plaguing our nation’s capital.

DC Attorney General Brian Schwalb’s response: “We cannot prosecute and arrest our way out of it.” pic.twitter.com/hEUT8GG7Al

— Carrie Severino (@JCNSeverino) January 31, 2024

D.C.’s weird status as a federal district means that city officials have little control over criminal prosecutions, which are instead largely handled by the U.S. Attorney for D.C. Matthew Graves. Graves gets a lot of blame for declining to prosecute enough crimes.

All the anger being directed towards AG Schwalb for saying this needs to be directed to US Attorney Graves, the person who can actually prosecute the majority of cases in DC and chooses not to! https://t.co/kc6JuqYroh

— Billy Easley II (@billyez2) February 1, 2024

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Quick Links

• Democrats are putting pressure on Federal Reserve Chair Jerome Powell to bring down interest rates.
• E.U. leaders agree to a $54 billion aid package for Ukraine.
• Israel continues its controlled demolitions of neighborhoods in Gaza.
• For just $8.5 million, you can buy the late Dianne Feinstein’s home in D.C.
• A new report finds that government overreach led to “chaos” during the pandemic. Who knew?
• Taylor Swift: Pentagon psyop, or protector of the people?

https://t.co/XxJGKSze1l pic.twitter.com/zq5fEd9GmJ

— Warren Rhea ???? (@EverydayWarren) February 1, 2024

• Police who killed an armed homeowner in a wrong door raid won’t face criminal charges.

No criminal charges will be filed against three New Mexico police officers who went to the wrong address while responding to a domestic violence call last year and fatally shot the armed homeowner who came to the door, state officials said. https://t.co/gMvyWybmAi

— The New York Times (@nytimes) January 31, 2024

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From yesterday’s decision by Judge Allen Winsor (N.D. Fla.) in Walt Disney Parks & Resorts U.S., Inc. v. DeSantis; I expect Disney will appeal (see also Adam Schulman’s and Dilan Esper’s analyses of this in April 2022, which proved prescient, and also my April 22 discussion of some alternative arguments):

In 1967, Florida’s Legislature created the Reedy Creek Improvement District (RCID), a special improvement district in Central Florida. The district is perhaps best known as the home of Walt Disney World, which has operated there for decades. And as the district’s largest landowner, Disney has effectively controlled the district’s board, whose members were elected based on land ownership. That changed last year, after the Florida Legislature substantially amended the district’s governing structure. Now, Florida’s Governor selects the board members, subject to Senate confirmation. As a result, Disney no longer controls the special improvement district in which it operates. (That district is now called the Central Florida Tourism Oversight District, or CFTOD.)

This change—which works to Disney’s significant detriment—came after Disney publicly criticized another Florida law, the Parental Rights in Education Act. In Disney’s view, this timing was no coincidence. Disney alleges that the Florida Legislature changed the district’s governing structure to punish it for its speech. The issue in this case is whether the Legislature’s action constituted unlawful retaliation against Disney’s speech in violation of the First Amendment….

“As a general matter, the First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech.” But it is settled law that “when a statute is facially constitutional, a plaintiff cannot bring a free-speech challenge by claiming that the lawmakers who passed it acted with a constitutionally impermissible purpose.” The Eleventh Circuit has “held that many times.” And this settled law forecloses Disney’s claim.

In In re Hubbard (11th Cir. 2015), the Eleventh Circuit relied heavily on United States v. O’Brien (1968), a leading First Amendment precedent. The O’Brien plaintiff burned his Selective Service registration certificate to protest the Vietnam War.  Charged with violating a statute that prohibited knowingly destroying such certificates, he claimed the statute was unconstitutional because its purpose was to suppress free speech.  But the United States Supreme Court rejected his claim.  It noted the “hazardous” nature of inquiring into legislative motive, and it declined to void a statute “essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a ‘wiser’ speech about it.” In other words, because Congress could have criminalized burning draft cards for a legitimate reason, the Court would not consider Congress’s actual motivation. It would “not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”

The Eleventh Circuit applied that clear rule in Hubbard. After Alabama enacted a statute restricting payroll deductions for public-employee union dues, a public-employee union and others brought a First Amendment challenge. They contended the Legislature enacted the law to retaliate against the union plaintiff for its political speech. But on its face, the statute did “not implicate any constitutionally protected conduct,” meaning it was facially constitutional. Plaintiffs’ only basis for their claim was “the alleged retaliatory motive that Alabama’s lawmakers had” in enacting the law. And that was “precisely the challenge that O’Brien, and [Eleventh Circuit] decisions following it, foreclose.” More recently, in NetChoice, LLC v. Attorney General of Florida (11th Cir. 2022), the Eleventh Circuit reaffirmed the principle from O’Brien and Hubbard, explaining that “courts shouldn’t look to a law’s legislative history to find an illegitimate motivation for an otherwise constitutional statute.”

A straightforward application of Hubbard resolves this case. As Disney appropriately acknowledges, the Legislature can determine the structure of Florida’s special improvement districts. Disney does not argue that the First Amendment (or anything else) would preclude the Legislature from enacting the challenged laws without a retaliatory motivation. The laws here, as in Hubbard, do not facially “impinge on any constitutional rights.” And as in Hubbard, the only basis for the claim here is that the Legislature had a retaliatory motive. So as in Hubbard, there is no “cognizable First Amendment claim.” …

Disney argues that notwithstanding Hubbard, “courts frequently inquire into legislative motive to determine whether a facially constitutional statute was enacted for an impermissible purpose.” But it relies on race and religion cases, as well as cases involving statutes designed to regulate speech. Those cases present different issues. See Hubbard (“Our discussion of the O’Brien rule is limited to the context before us: a free-speech retaliation challenge to an otherwise constitutional statute.”). The fact that other types of claims allow evaluation of legislative purpose does not undermine Hubbard‘s application here. Cf. NetChoice (noting that although “in the free-exercise context, it was appropriate to look beyond ‘the text of the laws at issue’ to identify discriminatory animus against a minority religion[,] … NetChoice hasn’t cited—and we’re not aware of—any Supreme Court or Eleventh Circuit decision that relied on legislative history or statements by proponents to characterize as viewpoint-based a law challenged on free-speech grounds”)….

Second, Disney contends that the challenged laws explicitly target it, making Hubbard inapplicable. The Hubbard principle does not apply when “a law is challenged as a bill of attainder.” And although Disney does not challenge the laws as bills of attainder, it labels the laws “attainder-like” and seeks to squeeze into the exception.

Disney primarily relies on the Eleventh Circuit’s earlier decision in Georgia Ass’n of Educators v. Gwinnett County School District (11th Cir. 1988), which allowed a First Amendment retaliation claim. But as Hubbard noted, the county’s retaliatory action in Gwinnett County “explicitly single[d] out a specific group.” The school board explicitly terminated automatic payroll deductions only for the “members of the Georgia Association of Educators … and its local affiliate, the Gwinnett County Association of Educators.” “That fact made O’Brien inapplicable because the O’Brien rule applies only where the law at issue is ‘constitutional on its face.'”

In other words, the Gwinnett County policy was not “constitutional on its face” because it explicitly singled out a discrete group. The law in Hubbard, on the other hand, was “constitutional on its face” because it did not. This was true even though the Hubbard plaintiffs claimed the law “was an unconstitutional act of governmental retaliation against [plaintiff] AEA for its past acts of political expression”—just as Disney claims that the laws here were an unconstitutional act of retaliation against it for its political expression. Thus, this case is like Hubbard and unlike Gwinnett County. See Hubbard (“The facts of [Gwinnett County] limit the holding of the decision to acts of governmental retaliation that explicitly single out a specific group.”).

Disney also argues that even if the laws do not explicitly target it, they come close enough to warrant a Hubbard exception. But there is no “close enough” exception. A law either explicitly singles out a specific group or it does not, and the laws here do not. In arguing otherwise, Disney relies on Judge Posner’s opinion in  Fraternal Order of Police Hobart Lodge No. 121 v. City of Hobart (7th Cir. 1988). But that case—in which a First Amendment retaliation claim failed because the challenged law did not single out anyone—only undermines Disney’s position.

In Hobart, the mayor and city council had adopted an ordinance requiring city employees to work at least 40 hours weekly. The change made no difference to city employees who already worked regular hours, but “it made a big difference to Hobart’s police.” Police officers and their union sued, contending that the mayor and council adopted the ordinance in retaliation for the police’s political opposition. Relying on the O’Brien principle, the court rejected the claim. It rejected an argument that the law “pinpointed” police, noting that “[n]o outside observer reading Hobart’s 40-hour-a-week ordinance would suppose it directed against the police or any other definable group. It does not mention police ….”  Here, similarly, no one reading the text of the challenged laws would suppose them directed against Disney. The laws do not mention Disney.

Disney is left to argue that we should go beyond the laws’ text and see what they do in operation. The principal problem with this argument is that it ignores Hubbard‘s holding precluding retaliation claims against “facially constitutional” laws. But the secondary problem is that the laws’ effects are not limited to Disney. The laws are directed at a special development district in which Disney operates. But as Disney acknowledges, it is not the district’s only landowner, and other landowners within the district are affected by the same laws. As for SB 4-C (the earlier law), it applies to “any independent special district established by a special act prior to the date of ratification of the Florida Constitution,” a category comprising Disney’s district and at least several others.

It is true that the laws did not affect all districts, and it is true (at least accepting Disney’s allegations) that Disney faces the brunt of the harm. But Disney offers no support for its argument that the court is to undertake line drawing to determine just how many others a law must cover to avoid “singling out” those they affect most. Here, it is enough to say—as in Hobart—that the law “challenged in this case is not pinpointed against a named individual or group; it is general in its wording and impact.”

{Although Hobart applied the O’Brien rule to reject the First Amendment challenge, it also offered some practical considerations. Allowing such challenges would subject seemingly all legislation

to invalidation by a federal court upon evidence that the legislation, though on its face concerned only with the most ordinary matters of governmental administration, had actually been intended to punish the legislators’ political opponents, or reward the legislators’ friends with largesse obtained by taxes on their enemies…. The expansion of judicial review of legislation would be breathtaking. Yet the enlargement of the marketplace of ideas would be slight—maybe nonexistent.} …

Third, Disney argues this case is unlike Hubbard and O’Brien because of the strength of the case—the clarity of the legislative purpose. Disney says that “[f]ar from seeking to ferret out some hidden or opaque retaliatory motive, Disney’s retaliation claim rests on the clear, consistent, and proud declarations of the State leaders who urged enactment of SB 4C and HB 9B.” But Disney cites no authority suggesting this is a meaningful distinction. To be sure, Hubbard points to evidentiary difficulties, discussing the likelihood of differing motives of the legislators. But the principle at issue “is founded not only on the difficulty of determining by forensic methods the motives of a collective body, but also on respect for the political process and on simple comity between departments of government.” Regardless, nothing in Hubbard suggests it is inapplicable when there is significant—or even overwhelming—evidence of illicit motivation. It says instead that there is no cognizable claim. Period. “What we are saying is that, as a matter of law, the First Amendment does not support the kind of claim [plaintiff] makes here: a challenge to an otherwise constitutional statute based on the subjective motivations of the lawmakers who passed it.”

At the end of the day, under the law of this Circuit, “courts shouldn’t look to a law’s legislative history to find an illegitimate motivation for an otherwise constitutional statute.” NetChoice (citing Hubbard). Because that is what Disney seeks here, its claim fails as a matter of law….

The post Disney Loses First Amendment Claim over Florida's Cancellation of Special Government District that Disney appeared first on Reason.com.

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The new issue of the Case Western Reserve Law Review with a symposium on the First Amendment and classrooms has now arrived, and with it my article, “What Can Professors Say in Public? Extramural Speech and the First Amendment.”

From the abstract:

Since the early twentieth century, academics have urged universities to recognize robust protections for the freedom of professors to speak in public on matters of political, social, and economic controversy—so-called “extramural speech.” The U.S. Supreme Court eventually recognized First Amendment protections for government employees, including state university professors, who express themselves about matters of public concern. The Court has indicated that the state should be especially solicitous of the speech of government employees in an academic context, but it has not adequately elaborated on the nature of those protections and how courts and government employers should assess the state’s interests relative to the extramural speech of professors employed at public universities.

This Article describes the state of the existing principles and doctrine surrounding extramural speech and examines the factors that private and public universities can reasonably take into consideration when responding to such speech—and what rationales for suppressing such speech or sanctioning faculty for engaging in such speech are inappropriate. Controversies surrounding the public speech of university faculty have only become more common and more intense in recent years, and both public and private universities need to be more self-conscious about the risk of stifling the intellectual environment of universities and chilling unpopular speech when responding to such controversies. If First Amendment values are particularly weighty in the context of the marketplace of ideas on university campuses, then many of the rationales for disciplining government employees for controversial speech that may make sense in some governmental workplaces should be rejected if applied in the university context.

The article focuses on the balancing test in the Supreme Court’s Pickering doctrine for government employee speech, and how that balancing test should be conducted in the specific context of universities and faculty speech. Although the constitutional test is specific to state universities, it works well for thinking through protections for free expression at most private universities in the United States as well.

From the conclusion:

There are very few occasions when university officials can properly sanction a university professor for his or her extramural speech. . . . Professors may say things in public that are mistaken, offensive, or even repugnant and vile—or they may simply say things that threaten the interests of powerful groups and individuals or run contrary to prevailing sentiment—but general principles of free speech protect their right to say such things and university employers should refrain from penalizing them for such speech. When universities claim that firing professors who say controversial things is justified, courts should stand ready to closely interrogate such claims. When the extramural speech of professors is weighed in a Pickering balance, the university’s legitimate interest should not include an interest in suppressing speech because it is unpopular or uncivil or gives rise to the commotions that unpopular or uncivil speech can trigger.

You can read the whole thing here.

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2/1/1816: Second Bank of the United States chartered. The Supreme Court would uphold the constitutionality of the Bank in McCulloch v. Maryland.

The post Today in Supreme Court History: February 1, 1816 appeared first on Reason.com.

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