iftttwall

posted a lively podcast of two legal scholars of interest to those
following the case of
Elane Photography v. Willock. That’s the New Mexico
photographer who refused to shoot a gay wedding and got into legal
trouble for violating the state’s public accommodation and
anti-discrimination laws. The photographer has lost every step of
the way and is asking for a Supreme Court review.

I bring up the podcast because holding up the libertarian side
of the debate is Richard Epstein of New York University, arguing
against Michael Dorf of Cornell. Both men note that the case is
based around whether Elane Photography can claim a First Amendment
exemption from public accommodation laws, not the laws themselves.
But Epstein would like to see a restoration of real, honest-to-god
recognition of freedom of association, which he argues has been
“dashed to bits” by Supreme Court decisions from the 1930s on:

“Every person has the ordinary liberty to pick the persons with
whom he wishes to deal and the terms and conditions on which they
wish to trade. … There is no theory that I am aware which indicates
the heavy hand of the government with its elaborative
administrative structure can do better than competitive markets to
sort out all these issues.”

Of course, the debate cannot help but to examine the Civil
Rights Act of 1964 and how Southern racism has impacted business
law. Epstein notes the significant amount of government force and
monopolistic protection that was part and parcel of keeping racist
business practices alive in the south. He defended
anti-discrimination policies in situations where consumers honestly
don’t have many choices, but he does not see any behavior of that
sort when analyzing a business’s refusal to serve gay couples:

“This is a case in which there’s an absolute juggernaut in favor
of same sex marriage. The transformations in my lifetime from the
time when it was a criminal offense to be gay to the time where it
is in fact a preferred freedom is nothing short of
astonishing.”

Dorf invokes a concept of “economic citizenship” to explain the
idea that the government can set the policies by which businesses
and corporations offer their services. Epstein, though, notes that
there are no reverse expectations. Customers still have their
freedom of association. We would consider it unconscionable if a
gay couple were ordered to purchase a cake or hire a photographer
from a business who opposed their relationship. In his conclusion
Epstein notes:

“I think the problem that we have is that some of us have such
strong ideas about what a just society looks like that we don’t
think long and hard about whether or not we’re entitled to impose
our will. And the basic argument is this: The stronger the
consensus for open public accommodations, the weaker the need for
the law.”

I previously wrote how these gay marriage conflicts were more
about what we classify as public accommodations than who does or
doesn’t get exemptions under the First Amendment, so I’m pleased to
see a constitutional scholar make a similar argument. Epstein,
though, given his background, makes a much more articulate case
than l’il ol’ me.

Listen to the podcast below:

Is it a matter of potential life and death in which
only police can save the day? If it isn’t, you should
really think three times before calling them. Utah man Mark Byrge
has learned this lesson.

William Grigg
tells the whole sad story at the Freedom in Our
Time blog.

Byrge, driving a delivery truck, back in 2012 hit a tree branch
protruding in the road; he reported the non-injury incident,
involving only his vehicle, to the police. Who arrested him for an
outstanding warrant on a previous traffic issue. When he asked them
to cuff him in front because he had a very expensive and important
medical device implant in his back, a Spinal Cord Stimulator, they
refused.

Because of what Byrge insists–and which his wife, who overheard
some of the actions on his live cell phone, corroborates–was
pointless rough treatment from Officer Andrice Gianfelice, he ended
up cuffed in back, slammed into the back of a police car, and then
wrestled to the ground later in front of a hospital with
Gianfelice’s knee pressing into the place in his spine the device
was implanted.

At the end of the experience, the device was ruined.

Why did Byrge have that device? Details from Grigg’s blog:

The SCS was designed to send electrical impulses along Mark’s
spine in order to neutralize pain receptors. This allowed him to
ramp down his dosages of narcotic prescription pain medications.
This, in turn, is what made it possible for him to run his courier
delivery business, which required both the physical capacity to
load and unload cargo, and the mental acuity to drive his truck and
fill out paperwork. Without the stimulator, Mark would either be
too crippled to lift, or too doped-up to focus.

Subsequent medical scans of his stimulator documented that it
went inactive on April 18, 2012 – the day that Officer Gianfelice,
after arrogantly dismissing Mark’s entirely reasonable request to
be cuffed in the front, shoved him against the rear seat of his
police cruiser.

What’s life like for Byrge after he made the terrible error of
calling the police?

Since that incident, “the patient’s pain as gotten worse and his
right leg is now showing signs of possible Complex
Regional Pain Syndrome,” observed Gary Child of the Utah Pain
Relief Center in April 2013. CRPS is a serious degenerative
condition that has left Mark unable to work – and is rapidly
depriving him of the ability to walk.

Mark is a 43-year-old former football player and wrestler with a
compact, muscular build and low center of gravity. He walks with
the assistance of a cane as his right leg atrophies. Dark
striations are inscribed in his right foot, ankle, and shin. His
toes are splayed at wild angles owing to involuntary muscle
contractions and spasms that convulse his right leg without warning
or relief.

His body slowing cutting off circulation to his lower extremity
“as if it is trying to break off my foot,” Mark explained to me.
CRP Syndrome can
lead to other severe complications, including major organ
failure.

After complaining through channels, Byrge found local police in
American Fork, Utah, strangely unhelpful, and even claims to have
had a threatening visit to his home by a local cop encouraging to
forget the whole thing.

By wild coincidence, although every officer in that town is

supposed to be equipped with uniform video cameras, nothing
that happened with Byrge that day was recorded by them.

And how did complaining do? From Grigg’s blog:

As Mark attempted, unsuccessfully, to recover from the trauma
inflicted on him by Officer Gianfelice, he filed complaints with
the American Fork Police Department. He collected witness
statements from several people who had been on the scene, as well
as his wife and brother, who had overheard the incident over the
open cell phone connection. He assembled statements from health
care professionals about the damage done to him by Gianfelice’s
assault. When the AFPD didn’t respond, Mark took his evidence to
the Utah County Sheriff’s Office.

Mark’s persistence didn’t endear him to AFPD Chief Lance
Call.

“You’ve run to every agency on the Wasatch Front,” groused Call
when Mark contacted him to demand that action be taken against
Gianfelice. “I already investigated it – and I cleared the
officer.”

“You didn’t talk to any of the witnesses or review any of my
evidence,” Mark plaintively replied. “How can you `clear’ him just
by reviewing his side of the story?” 

“I told you `no’!” Call responded, hanging
up…..

 The official inquiry, which was
conducted by Sgt. Scott R. Finch of the Utah County Sheriff’s
Office, was the typical preordained exercise in validation. In his
interview with Finch, Gianfelice repeatedly claimed that he “could
not recall,” “could not remember,” or “could not recall from
memory” several critical details of the incident.

Byrge is still fighting over the incident:

Fully disabled and unable to make a living, Mark is pursuing a
civil rights case against the AFPD. He is also a candidate for the
Utah State Legislature.

“My campaign is going to focus entirely on abuse of power by
public officials, especially the police,” Mark told me. “I’m in
constant pain, and my body is literally devouring itself. I want to
do anything I can to prevent this from happening to somebody
else.”

Meanwhile, the assailant who left Mark an invalid, Andres
Gianfelice, is receiving a salary of $83,682 a year as
part of a 33-officer force patrolling a
city of 21,000 people with a negligible violent crime rate.
….

• Four years later, Democrats are still waiting for
  
  Obamacare to become more popular.
• Malaysia
  Flight MH370 “ended in the southern Indian Ocean,” according to
  Malaysia’s prime minister. The airline reportedly sent a text to
  let family members know the passengers were assumed dead.
• Senate Democrats and the Obama Administration are attempting to
  include reforms to the International
  Monetary Fund that could increase U.S. contributions but
  decrease its influence in the lending body as part of an aid
  package to Ukraine.
• At least eight people are dead and more than 100 reported
  missing after a massive mudslide outside
  of Oso, Washington.
• Japan will be transferring its highly enriched uranium and
  separated
  plutonium into U.S. custody. Earlier this year, China expressed
  concern about Japan’s possession of plutonium.
• A survey commissioned by Twitter and Fox found that 92 percent
  of Twitter
  users said they’ve tuned in to or searched for a TV show after
  seeing it tweeted. 

Follow Reason and Reason 24/7 on
Twitter, and like us on Facebook. You
can also get the top stories mailed to
you—sign
up here.

When I ws a kid, I used to roam
the streets and woods with my friends, romping through construction
sites as a diversion from the tube steel and asphalt playgrounds
that were the norm for most of my childhood. I earned a few battle
scars in the process, including a perfectly circular black eye from
looking through a loose length of pipe at a buddy who unthinkingly
nudged the other end. If you share a fondness for that kind of
upbringing over eternal hovering over oh-so-precious wee ones who
never seem to be allowed learn how to shake it off and get back
into the mix, you’ll enjoy Hanna Rosin’s take on “The
Overprotected Kid” at The Atlantic and alternatives
thereto—including a playground seemingly modeled on a junkyard.

Rosin
writes:

It’s hard to absorb how much childhood norms have shifted in
just one generation. Actions that would have been considered
paranoid in the ’70s—walking third-graders to school, forbidding
your kid to play ball in the street, going down the slide with your
child in your lap—are now routine. In fact, they are the markers of
good, responsible parenting. One very thorough study of “children’s
independent mobility,” conducted in urban, suburban, and rural
neighborhoods in the U.K., shows that in 1971, 80 percent of
third-graders walked to school alone. By 1990, that measure had
dropped to 9 percent, and now it’s even lower. When you ask
parents why they are more protective than their parents were, they
might answer that the world is more dangerous than it was when they
were growing up. But this isn’t true, or at least not in the way
that we think. For example, parents now routinely tell their
children never to talk to strangers, even though all available
evidence suggests that children have about the same (very slim)
chance of being abducted by a stranger as they did a generation
ago. Maybe the real question is, how did these fears come to have
such a hold over us? And what have our children lost—and gained—as
we’ve succumbed to them?

Rosin details how lawsuits and a growing cultural obsession with
safety fueled a push for sterile, supervised children’s play. The
result, perhaps predictably, is that kids denied approved access to
thrill and a feeling of danger develop phobias and also engage in
increasingly risky behavior with real consequences. They don’t
learn to test and set their own limits.

By contrast, she writes about “the Land,” a playground in Wales
that seems to embody a perfect rejection of the modern safe,
orderly, and approved children’s environment.

It’s still morning, but someone has already started a fire in
the tin drum in the corner, perhaps because it’s late fall and
wet-cold, or more likely because the kids here love to start fires.
Three boys lounge in the only unbroken chairs around it; they are
the oldest ones here, so no one complains. One of them turns on the
radio—Shaggy is playing (Honey came in and she caught me
red-handed, creeping with the girl next door)—as the others
feel in their pockets to make sure the candy bars and soda cans are
still there. Nearby, a couple of boys are doing mad flips on a
stack of filthy mattresses, which makes a fine trampoline. At the
other end of the playground, a dozen or so of the younger kids dart
in and out of large structures made up of wooden pallets stacked on
top of one another. Occasionally a group knocks down a few
pallets—just for the fun of it, or to build some new kind of slide
or fort or unnamed structure. Come tomorrow and the Land might have
a whole new topography.

The Land sounds like an odd, new, and interesting experiment.
But it’s actually a reversion to the sort of “adventure playground”
that was popular in 1940s Britain. Even though it’s a decades-old
idea, it’s different enough for the modern world to be the subject
of a documentary by Erin
Davis (see part of it below).

Rosin also discusses experiments in New Zealand,
covered by Reason in January, in which school
officials minimized playground rules and saw important improvements
in behavior, and reductions in bullying.

Rules-wise, it seems that less is more when it comes to
childhood.

Read Rosin’s full article
here.

“We haven’t finished
yet!” from Erin Davis on
Vimeo.

A story in today’s New York
Times sounds
the alarm about “a dangerous new form of a powerful stimulant”
that “is hitting markets nationwide, for sale by the vial, the
gallon and even the barrel.” This stimulant is “a powerful
neurotoxin,” warns business reporter Matt Richtel, and “tiny
amounts” of it, “whether ingested or absorbed through
the skin, can cause vomiting and seizures and even be lethal.” This
dangerous new drug, he explains, is the nicotine contained in
e-cigarette fluid, which already has killed…well, so far just one
guy who committed suicide by injecting the stuff. But “reports of
accidental poisonings, notably among children, are soaring.” They
increased “300 percent” from 2012 to 2013!

Another way of putting that: The number of accidental poisoning
reports related to e-cigarette fluid increased from about 338 in
2012 to 1,351 in 2013. None of these poisonings was fatal, and most
(73 percent) were not serious enough to require hospital treatment.
In 2012, by comparison, 311,347
poisoning reports involved analgesics, 221,314 involved
cosmetics, 193,802 involved cleaning substances, 96,997 involved
anthistamines, 88,694 involved pesticides, 68,168 involved
vitamins, and 49,374 involved plants. So if “e-liquids pose a
significant risk to public health,” as Richtel says, the risk posed
by common products such as aspirin, window cleaner, and bug spray
is gargantuan.

Richtel concedes that the nicotine levels of “most” e-cigarette
cartridges “range between 1.8 percent and 2.4 percent [by volume],
concentrations that can cause sickness, but rarely death, in
children.” But he claims “higher concentrations, like 10 percent or
even 7.2 percent, are widely available on the Internet.” Contrary
to Richtel’s implication, 10 percent is higher than 7.2 percent.
But never mind. How common are e-cigarette cartridges with nicotine
concentrations of 7.2 percent or more? Of the 13 “Top E-Cig Brands
for 2014” picked by by SmokeFreeVCU.org, none offers cartridges
that strong. The strongest fluid sold by 11 of the 13 companies is
2.4 percent or lower. Vapor
Zone offers 3.6 percent.
White Cloud sells cartridges in a “Double Extra” strength aimed
at the heaviest smokers. These cartridges, which the
company describes as
“the strongest in the industry,” contain 5.4 percent nicotine.
Richtel cites two examples of 10 percent solutions, both involving
large quantities sold by wholesalers, presumably to customers who
dilute the fluid before selling it to consumers. 

This exaggeration figures in the article’s most memorable
warnings. In the third paragraph, Richtel says “a teaspoon of even
highly diluted e-liquid can kill a small child.” At the end of the
article he quotes Lee Cantrell, director of the San Diego division
of the California Poison Control System, as saying that “one
tablespoon could kill an adult.” According to a 2013
article in Archives of Toxicology, “a
careful estimate suggests that the lower limit causing fatal
outcomes [in adults] is 0.5–1 g of ingested nicotine”—i.e., at
least 500 milligrams. To get that dose from a tablespoon (15
milliliters), the concentration would have to be 33.3 milligrams
per milliliter, or more than 3.3 percent by volume, which is far
from typical.

Richtel does raise some legitimate concerns. He worries that
bottles of e-cigarette fluid are “kept casually around the house”
and that children “may be drawn to their bright colors and fragrant
flavorings.” Adults obviously should keep e-cigarette liquid, like
any other potentially dangerous substance, away from small
children. But Richtel seems determined to portray this particular
hazard, which by his own account has not caused a single accidental
death, as fundamentally scarier than familiar household products
that account for many more poisonings. Perhaps that is because
e-cigarettes are relatively new. Or perhaps Richtel, like many
activists and public health officials, is
offended by the superficial resemblance between vaping and
smoking, the very thing that makes e-cigarettes such a promising
harm reduction tool. Either way, his reaction is not rational. But
I suppose putting risk in perspective is more than we can
reasonably expect from a newspaper that
portrays energy drinks as lethal.

As I
mentioned over the weekend, The Independents’
interview with Bill Nye the Science Guy about climate change
was an odd and telling exchange. Now you can see it for
yourself:

Contrast that with our
discussion in the same
theme episode with Bjorn Lomborg:

New live show later tonight; details in the 8 o’clock hour.