Grounding Originalism Published

My frequent co-author (and now co-blogger) Steve Sachs and I have a new article out in the Northwestern Law Review, in a symposium issue devoted to “Originalism 3.0.” Our contribution, “Grounding Originalism,” tries to provide philosophical grounding for our approach to originalism, one which emphasizes that originalism is a theory of law, under which our law is the Founders’ law, plus all lawful changes enacted since then.

The piece responds in part to criticisms raised by Richard Primus, Mark Greenberg, Mikołaj Barczentewicz, and Charles Barzun, among others (and Eric Segall is publishing a response here). Here is the abstract of our piece:

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.

Because this piece is the latest in a line of five or six pieces that Steve and/or I have written advancing this theory, it doesn’t provide all of the arguments or evidence for our view. But we do provide (p. 1491) what I hope is a helpful summary of how past and present law relate:

  • As a theoretical matter, positivists like us figure out today’s law based on today’s social facts.
  • As a contingent, empirical matter, today’s social facts happen to incorporate the Founders’ law by reference.
  • As a historical, legal matter, the Founders’ law allowed for various kinds of changes, including both formal enactments and the incorporation by reference of various kinds of customary law

As well as (p. 1477-78) another hopefully helpful summary of the evidence we’ve amassed in previous pieces that we think supports our view:

  1. We treat the Constitution as a legal text, originally enacted in the late eighteenth century.
  2. This constitutional text regulates the selection of legal officials, even when such regulations are unpopular or contrary to tradition.
  3. Actors in our legal system don’t acknowledge, and indeed reject, any official legal breaks or discontinuities from the Founding.
  4. We rely on technical domesticating doctrines, themselves rooted in preexisting law, to blunt the practical force of novel originalist arguments.
  5. Original meaning sometimes explicitly prevails over policy arguments in constitutional adjudication, but the reverse doesn’t seem to be true.
  6. Our treatment of precedent makes sense if original sources determine the Constitution’s content but not if precedent does.
  7. More generally, there are no clear repudiations of originalism as our law in the current canon of Supreme Court cases, even in situations where the Justices must have been sorely tempted.

As always, if this provokes further productive criticisms or a counter-argument about theory better describes our law, we’d love to see it! Meanwhile, Steve and I are at work on two more pieces aimed at more specialist literatures, one in history and one in philosophy, which I’ll look forward to sharing here later this year.

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The Panic Over ‘Social Media Addiction’ Threatens Free Speech

It has been more than 10 years since China’s health ministry officially recognized “Internet Addiction Disorder” as a disease. And although the evidence for such a designation remains far from solid, the consequences of that designation have been startlingly clear.

The Chinese government has, among other things, restricted new internet cafes from opening, requiring them to be closed during certain times of the day, and limiting time adolescents may spend at internet cafes. Meanwhile, a network of boot camps, many of which are government run, have sprung up across the country in which many of the government-estimated 23 million young “internet addicts” are enrolled to receive treatment for what has been dubbed “electronic heroin.” These facilities employ military-style discipline and often brutal corporal punishment. In 2017, BBC News reported the death of an 18-year-old registered in one of those camps, sparking Chinese newspaper editorials calling for tighter regulation of these centers.

China’s experience is a warning about the perils of medicalizing heavy internet use. Yet other countries are following its lead by recognizing social media or internet addiction as a behavioral disorder, often in conjunction with public funding for counseling and addiction treatment centers. Japan’s Ministry of Health, for example, pays for “internet fasting camps” in which young addicts receive help in a tech-free environment. And in 2011, despite objections from parents that it infringes on their autonomy, South Korea placed a curfew on teen internet gaming, blocking gaming sites after midnight for people ages 16 and younger.

Fear of the internet’s addictive potential isn’t confined to Asian countries. The year China made its designation official, an editorial by a leading U.S. psychiatrist appeared in the American Journal of Psychiatry applauding the decision. Since then, an internet addiction rehab industry has sprung up in the States. And a growing number of media reports in the West have stoked concerns about a looming crisis of social media addiction, sometimes loosely coined “internet addiction.”

Lawmakers in Washington, meanwhile, have begun to express similar concerns. Last September, during a Senate Select Committee on Intelligence hearing on “Foreign Influence Operations’ Use of Social Media,” Sen. Richard Burr (R–N.C.), Sen. Mark Warner (D–Va.), and others raised the subject of “social media addiction.” They were worried that media users, compelled by their addiction to face repeated exposure to propaganda and misinformation, might be increasingly vulnerable to manipulation. Several senators asked both witnesses what steps they were taking to combat “social media addiction.”

Yet despite the growing public panic, the underlying science is far from settled. Researchers have not yet approached a consensus as to whether perceived excessive time spent on the internet and engaged with social media is an addictive behavioral disorder. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) does not designate “internet addiction” or “social media addiction” as a mental disorder, but rather a “condition for further study,” which is notable in light of economic incentives for the psychiatry profession to medicalize problem behaviors.

Given the widespread fearmongering, and the growing chorus of criticism from both the left and right against social media, it’s all too easy to imagine this issue gaining traction with politicians and medical policymakers. As with other issues driven by sensational media reports, there’s a real risk that lawmakers and medical professionals will rush to implement policies that aren’t supported by the evidence. Those sorts of policies can result in unintended social harms, not the least of which are potential infringements on freedom of the press, freedom of expression, and freedom of association—especially if social media platform providers are demonized as purveyors of addictive, and thus dangerous, content. Classifying heavy internet use as medical addiction isn’t just a risk to patients and public health budgets, but to the foundations of free speech and a free society.

Addiction Defined

People talk colloquially about being “addicted” to things—from take-out pizza to TV shows—all the time. But the common understanding of addiction is only loosely related to the clinical definition, which is something far more powerful than a strong preference.

The American Society of Addiction Medicine describes addiction as a “chronic disease of brain reward, motivation, memory and related circuitry … characterized by the inability to consistently abstain, impairment in behavioral control, craving” that continues despite resulting destruction of relationships, economic conditions, and health.

A major feature of clinical addiction is compulsiveness. That is why alcoholics or other drug addicts will return to their substance of abuse even after they have been “detoxed” and despite the fact that they know it will further damage their lives.

So far, the evidence that this sort of clinical compulsion exists for internet usage simply isn’t there. In 2009, a team of researchers from Kwangwoon University in South Korea, the University of New Haven, Purdue, Notre Dame, and Auburn Universities analyzed 61 empirical studies on internet addiction published in peer-reviewed journals from 1996 to 2006. They found the studies used “inconsistent criteria to define internet addicts, applied recruiting methods that may cause serious sampling bias, and examined data using primarily exploratory rather than confirmatory data analysis techniques to investigate the degree of association rather than causal relationships among variables.”

A 2011 review of the empirical literature by Daria Kuss and Mark Griffiths at Nottingham Trent University did find that heavy internet use met many criteria for addiction,” such as neglect of personal life, mental preoccupation, escapism, mood modifying experiences, tolerance and concealing the addictive behavior, appear to be present in some people who use networks extensively.” However, their study only was only able to identify 43 empirical studies, many of which included small samples with teenagers and university students as participants, “severely limiting the generalizability of findings.” Their analysis noted the need for studies with larger samples that are representative of a broader population, and they cited the absence of studies “to assess the phenomenon from a biological perspective”—the neurochemical, rather than behavioral and mental effects. The authors also criticized the existing literature for using too few criteria for assessing addiction, and concluded that “the latent health consequences of excessive and addictive use are yet to be explored using the most rigorous scientific methods.”

Some research has found a correlation between social media use and depression in adolescent girls, but not boys. But it’s extremely small. In 2017, Jean Twenge of San Diego State University calculated that social media exposure could explain 0.36 percent of the covariance for depressive symptoms in adolescent girls. This means that 99.64 percent of the girls’ depressive symptoms did not correlate with social media use.

Part of the problem is definitional. In a 2017 follow-up to their original paper, Kuss and Griffiths noted methodological limitations of research into the matter persisted, including matters pertaining to inconsistent usage of terminology. For example, the authors pointed out, “Social networking and social media use have often been used interchangeably in the scientific literature. However, they are not the same.”

Eventually, researchers might conclude that social media addiction is indeed a mental disorder, but they aren’t there yet. If (or when) that occurs, it is likely the diagnostic criteria will be detailed and nuanced, covering a narrow segment of the population—and not suggesting anything resembling an epidemic.

Why It Matters

Whether social media addiction exists—and how pervasive it may be—does not just have implications for government intrusions on personal autonomy and control over behavioral choices in the purported interest of “public health.” There are also major ramifications for public policy.

Right now, health insurance does not cover the expenses of programs designed to help people with problematic use of the internet or social media. If social media addiction attains official status as a disease, legislation or regulations may mandate health plans to cover rehabilitation for this condition along with substance abuse disorders. This could increase the cost of health insurance, and drive up public spending on programs like Medicaid and Medicare.

Following the lead of other countries where internet addiction has been declared an illness, lawmakers might be motivated to grant funding for the proliferation and expansion of social media treatment programs. The burgeoning new industry could become yet another special interest in search of a steady stream of government funds.

But there can be even more disturbing repercussions if social media addiction is dubbed a mental disorder. A political consensus that social media addiction poses a potential public health “crisis” can cause collateral damage to freedom of speech, freedom of the press, and freedom of association.

The influence of the so-called “legacy media” has waned since the advent of the internet and social media platforms. Their traditional role as information gatekeepers has fallen victim to creative destruction as social media platforms provide outlets for news, information, and opinion content that might not otherwise attain public exposure.

As an example of privilege-seeking through government action, media companies in the U.K. are urging the government to intervene to “counteract all potential online harms, many of which are exacerbated by social media.” Politicians have their own incentives to control internet and social media content. They purportedly seek to “protect the integrity of the democratic process” yet are also concerned that their political positions are presented in what they consider a proper light, free from misrepresentation, and that their views are given equal and balanced exposure to those of the opposition. Members of the Senate Intelligence Committee are having their staffs work on proposals to regulate social media platforms.

As government becomes more enmeshed in internet and social media activity, threats to freedom of speech, freedom of the press, and freedom of association become increasingly real.

Some governments already access social media data to affect social conditioning. In Berlin, German police recently raided the homes of 36 people accused of “hateful postings” on social media. German law prohibits a range of postings with punishments of up to five years in prison for inciting racial hatred. The experience in China, where internet access is already controlled by the state, shows what happens when heavy use of online services is given a medical designation.

In America, fortunately, the Constitution stands in the way of many laws like those enacted in other countries that enmesh the government in social media operations. So do American sensibilities. The general public is not supportive of such interventions—at least not yet. Those cultural sensibilities might be changing as younger people appear more open to limitations on speech deemed “hateful.” Fear over the “scourge” of social media addiction could tip the scales even further.

It is no exaggeration to warn that the anxieties over social media addiction might reach the level of today’s “opioid epidemic” panic. Social media platforms like Twitter and Facebook might be demonized as purveyors of addictive content, making them as unsympathetic as the opioid pharmaceutical companies or “Big Tobacco.” The names “Zuckerberg” and “Dorsey” could join the name “Sackler” on the list of the shunned. Public attitudes are affected by fear, and resistance to government intrusion into internet activity and content can erode.

Addiction is seen as a disease that prevents individual choice about using the internet (or alcohol, or other drugs). When a policy is framed as the individual having no choice, policy oversight of that activity becomes more publicly acceptable.

And yet, when it comes to internet use and social media, it’s clear that people do have a choice. A 2018 Pew survey found the majority of users stated it would not be difficult to give up visiting social media sites (although 51 percent of those under age 24 stated it would be difficult). Forty-two percent of Facebook users surveyed said they have taken a break from the platform for several weeks or more, and 26 percent have deleted the Facebook cell phone app altogether.

Today, much of the conversation regarding internet and social media activity takes place in the public square, in the lay media and on pop culture platforms. There are no policy proposals beyond the level of conjecture. There is still time to prevent the public discourse from evolving into a public panic.

Journalists, commentators, and lawmakers must be more accurate and precise with their terminology. They must resist the temptation to confer legitimacy on an unproven “addiction,” and they should be called out when they do so. This is not nitpicking. And it is more than healthy skepticism. Many of our freedoms are at risk.

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Beyond the First Amendment: Anti-Libel Injunctions and Prosecutorial Discretion

[I’m continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.]

I’ve argued that criminal contempt prosecutions for violating anti-libel injunctions are similar to criminal libel prosecutions. But they are missing one important feature of most prosecutions—the normal prosecutor.

In criminal libel prosecutions, a prosecutor exercises discretion about whether to prosecute. In criminal contempt proceedings, a judge would normally refer the case to the prosecutor’s office, but if that office declines to act, the judge may appoint a special prosecutor. And in some states, the litigants could initiate the criminal contempt prosecution them­selves, or move for contempt and ask for the court to appoint their lawyers as the prosecutors. [In the federal system, the judge may not appoint the plaintiff’s lawyer as prosecutor, Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787 (1987), which may make it hard to find a lawyer willing to take the task. But that is a principle of federal contempt procedure, not a constitutional mandate.]

Indeed, in states that still have criminal libel laws, the injunction’s cutting out of the prosecutor is especially vivid. Why, after all, would a person who is being libeled seek an anti-libel injunction in that state? Why not just ask the prosecutor to threaten the defendant with a criminal libel prosecution? After all, an injunction only works because the target is worried about the threat of a criminal contempt prosecution; why wouldn’t a prosecutor’s threat of a criminal libel prosecution work as well?

Presumably the defamed person would opt for spending the time and money to get an injunction precisely because the prosecutor is not inclined to act. Maybe prosecuting libels is a low prosecutorial priority, compared to violent crimes, property crimes, or drug crimes. Or maybe the prosecutor thinks the criminal libel law is archaic, and that people shouldn’t be jailed merely for lying about people. Or maybe the prosecutor wants to prosecute only the most egregious libels (such as the ones that most threaten reputation), and this libel isn’t one. The prosecutor is thus using prosecutorial discretion to choose not to prosecute a particular kind of crime. And the injunction bypasses that prosecutorial decision.

The question for judges, then, is whether they see prosecutorial discretion as an advantage or a disadvantage in such cases.

Prosecutorial discretion is sometimes touted as an important protector for liberty: Before a person goes to jail for something, the theory goes, all three branches must agree—the legislature must criminalize the action, the executive must prosecute, and the judiciary must convict. In the words of then-Judge Kavanaugh,

The Executive’s broad prosecutorial discretion … illustrate[s] a key point of the Constitution’s separation of powers. One of the greatest unilateral powers a President possesses … is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior … . The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty.

Judge Kavanaugh was speaking of prosecutorial discretion as a check on the legislative power, but it could equally be seen as a check on the judicial power. Indeed, such a check may be especially necessary to rein in criminal contempt prosecutions, in which judges might be unduly skewed by the sense that the violation of an injunction is a personal affront to their own authority. Justice Scalia’s concurrence in Young v. United States ex rel. Vuitton et Fils SA, for instance, argued that federal contempt prosecutions must always be initiated by the Executive Branch, partly because Justice Scalia saw a threat to liberty in “judges’ in effect making the laws, prosecuting their violation, and sitting in judgment of those prosecutions.”

On the other hand, prosecutorial discretion is sometimes seen as unduly favoring those victims who have the prosecutors’ ear—indeed, one criticism of criminal libel laws has been that they are disproportionately used to punish speech critical of political officials and law enforcement. And people sometimes fault prosecutors for being not attentive enough to particular crimes that are seen as too hard (or too unglamorous) to prosecute; that, for instance, was part of the criticism of prosecutors in domestic violence cases, which led many states to enact statutes specifically authorizing injunctions against continued domestic violence.

More broadly, injunctions are available in many other contexts where torts are also crimes. The occasional assertion that “equity will not enjoin the commission of a crime” means simply that equity “would not enjoin violation of … criminal law as such,” but would only enjoin acts that harmed the particular plaintiff in some legally cognizable way. Injunctions against trespass are issued without concern that this will undermine prosecutorial discretion not to prosecute trespasses as crimes; likewise with injunctions against copyright infringement, even though willful copyright infringement for commercial gain is also criminal.

And perhaps the availability of criminal contempt proceedings in such cases, even without the opportunity for prosecutorial discretion, might be especially justified by the need to vindicate a particular victim’s interest. The Third Circuit, for instance, has taken the view—expressed, to be sure, as to administrative enforcement proceedings rater than as to criminal contempt of court prosecutions—that “the doctrine of prosecutorial discretion[] should be limited to those civil cases which, like criminal prosecutions, involve the vindication of societal or governmental interest, rather than the protection of individual rights.”

I don’t think that the availability of prosecutorial discretion should be seen as a necessary First Amendment protection that renders invalid injunctions that cut out such discretion. Indeed, prosecutorial discretion may introduce an extra risk of viewpoint discrimination, and enforcement of injunctions without a prosecutorial veto would decrease this risk.

Judges in injunction cases often write opinions explaining why they exercise their discretion a particular way, which constrains their discretion in some measure; prosecutors don’t. Judges’ decisions not to issue injunctions are reviewable on appeal (even if under the relatively deferential abuse-of-discretion standard); prosecutors’ decisions not to prosecute are generally not reviewable. Prosecutorial discretion cannot save an overbroad law. The absence of prosecutorial discretion should not invalidate a narrowly crafted injunction.

This having been said, though, courts might still choose to consider whether separation of powers concerns should counsel against injunctions that evade prosecutorial discretion, especially in those states where criminal libel statutes exist. The Court has spoken of its “cautious approach to equitable powers,” especially when the powers involve “substantial expansion of past practice”; state courts may choose to take a similar approach. Such caution may be reason to avoid an end-run around prosecutorial judgment, especially with a remedy that has historically been frowned on—which makes anti-libel injunctions different from, for instance, anti-trespass injunctions—and in the absence of specific legislative authorization (which makes anti-libel injunctions different from, say, anti-harassment or anti-stalking injunctions issued pursuant to a specific statute).

[You might also read my earlier posts on the subject,

Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]

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Bernie Sanders Is Right: We Should Let the Boston Marathon Bomber Vote

One of the more noteworthy points of discussion from Monday night’s series of town halls with 2020 Democratic presidential candidates focused on whether or not convicted felons should be allowed to vote while incarcerated.

Sen. Bernie Sanders (I–Vt.) certainly seems to think so. “This is a democracy and we have got to expand that democracy, and I believe every single person does have the right to vote,” he said. Sanders was specifically asked if Dzhokhar Tsarnaev, who helped carry out the 2013 Boston Marathon bombing which killed three people, or other felons, like those convicted of sexual assault, should be able to vote.

“Yes, even for terrible people, because once you start chipping away and you say, ‘Well, that guy committed a terrible crime, not going to let him vote. Well, that person did that. Not going to let that person vote,’ you’re running down a slippery slope,” Sanders explained. “So I believe people commit crimes and they paid the price and they have the right to vote. I believe even if they’re in jail they’re paying their price to society but that should not take away their inherent American right to participate in our democracy.”

Sanders admitted his views on this issue were controversial, acknowledging that his opponents would likely use his remarks to attack him. Conservative activists did indeed slam his comments, with Donald Trump Jr., Republican National Committee Chairwoman Ronna McDaniel, Turning Point USA founder Charlie Kirk, and others criticizing him on Twitter.

What about the other Democratic candidates? Well, South Bend, Indiana Mayor Pete Buttigieg said felons should not be able to vote until they’re released from prison. “Part of the punishment when you are convicted of a crime and you’re incarcerated is you lose certain rights. You lose your freedom,” he said. “And I think during that period, it does not make sense to have an exception the right to vote.” Sen. Kamala Harris (D–Calif.) had a less committal response to the question, saying: “I think we should have that conversation.”

So what can libertarians take away from all this? The way I see it, Sanders is spot-on. Let’s assume that every person who’s been convicted of a felony and locked up in prison deserves to be there. (It’s a bold assumption, but humor me.) There are about 2.3 million people incarcerated nationwide, though when you only count the people who’ve actually been convicted of crimes, that number is probably closer to 1.7 million, according to the Prison Policy Initiative. The disparity exists in part because many people accused of crimes don’t have the money to afford bail, and are just locked up until they’re either convicted or found not guilty.

Again, imagine each of those convicts, like the Boston bomber, is in prison for a good reason. If that’s true, then they’re already paying their debt to society by being incarcerated. What good does it do the rest of the population to take away their right to have a say? Are incarcerated individuals going to plan a mass conspiracy in order to get a rapist elected president? Or a pro-crime candidate? Probably not, and they wouldn’t have a large enough voting bloc to elect such a politician even if they wanted to.

“Even if there were this sort of mythical pro-crime candidate running for office, or even someone whose positions on crime are totally different than your own, you can’t not allow people to vote based on your fear that they’re going to vote for someone,” notes Scott Novakowski, a legal fellow with the New Jersey Institute for Social Justice. “That’s not democracy. That’s not what we do.”

And it’s far more likely that incarcerated individuals will vote for politicians with good stances on policies that actually affect them, rather than for so-called “pro-crime” candidates.

Consider the example of Patrick Murphy, who was convicted of murder for his role in the 2000 killing of a Texas police officer and sentenced to death. By all accounts, Murphy has led a bad life. He’d previously been convicted of sexual assault, and he admits to being involved in a prison escape and botched robbery that led to Irving Police Officer Aubrey Hawkins’ death. But while he did not pull the trigger or have direct involvement in Hawkins’ murder, Murphy was eligible for the death penalty due to Texas’ law of parties. It’s an unfair punishment, as I’ve previously argued. So shouldn’t he be able to vote for a politician who might change the law, thus saving his life?

There are plenty of candidates who support criminal justice reform measures like reducing drug sentences or banning solitary confinement. Shouldn’t the people who will be affected by those measures the most be allowed to cast their ballot for those candidates, if they so choose?

The point is, there are a host of issues that affect prisoners. Not giving them any sort of say undermines our democracy, and it means that prison abuse may just continue. Pregnant women will continue to be shackled during labor, male and female inmates will continue to be thrown into solitary confinement, and prisoners will continue to be sexually assaulted, often with no accountability for their assailants. (Many law-abiding citizens, after all, won’t be motivated to change the system in the same way that people directly affected by the system are, and might not even be aware of prison abuse problems in the first place.) And while the Boston bomber and those convicted of murder and sexual assault are bad people, to be sure, they still shouldn’t be terribly mistreated while incarcerated.

Now, remember how I said before that we were going to assume each incarcerated individual is in prison for a good reason? Well, that’s not exactly true. Aside from wrongfully convicted individuals, there are hundreds of thousands of people incarcerated for nonviolent crimes, including drug offenses. Simply said, plenty of people who are in prison deserve to be free. Don’t they deserve to have a voice in American democracy as well?

Sanders’ remarks highlight how far we’ve come in addressing disenfranchisement among those convicted of crimes. As seen by the response to his comments, we’re still a long way from letting felons vote while they’re in prison (Restrictions on felons’ voting rights are technically constitutional, per the 14th Amendment).

But there has been considerable progress toward allowing ex-felons who’ve served their time to vote. On the federal level, Sen. Rand Paul (R–Ky.) has been pushing to restore ex-felon’s voting rights since at least 2014. While he’s had mixed success, similar state efforts have succeeded.

In November, for instance, Floridians overwhelmingly approved a measure restoring voting rights for 1.4 million people with felony records. As Reason‘s C.J. Ciaramella wrote at the time, more than 30 states still have laws on the books that restrict ex-felons’ voting rights.

We’ve clearly seen progress on this issue, and the fact that presidential candidates are even debating whether incarcerated individuals should be allowed to vote is itself a positive development.

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We Won’t Make America Great Again by Scaring Off Foreign College Students

American colleges and universities have long been the most sought-after in the world, as judged by the number of foreign students who come to study here. About 20 percent of college students who study abroad choose a school in the United States. That’s almost twice the percentage that choose somewhere in the United Kingdom, the second-most popular location.

But that corner of American greatness might be getting shut down. According to the Institute of International Education (IIE), between the academic years of 2016/17 and 2017/18, the number of new international students enrolling in U.S. colleges and universities dropped 6.3 percent for undergrads, 5.5 percent for grad students, and 9.7 percent for non-degree students. Overall, the drop was 6.6 percent and the total number of new international students (about 272,000) is down to levels last seen in 2013/14. The number of new enrollments peaked at 301,000 in 2015/16.

As the IIE notes, the decline in new students is offset a bit by the number of foreign students who participate in the “Optional Practical Training (OPT) program, which allows international students to practice their skills in the United States for up to 12 months during or after they complete their academic programs, or up to 36 months for students who have earned a degree in STEM fields.” If you factor in OPT folks, the number of international students increased overall by 1.5 percent between 2016/17 and 2017/18 (the last year for which there is data). But with fewer new students enrolling, there will be fewer graduates eligible for OPT down the road.

Why are foreign students, who mostly come from China (33 percent), India (18 percent), and South Korea (5 percent), bypassing the United States? Writing at Forbes, Stuart Anderson, the executive director of the National Foundation for American Policy, states that “the Trump administration has made it more difficult for international students to stay or work in America.” Among other things, the White House is working to reduce or eliminate the OPT program, has made it easier for international students to get deported due to clerical errors, and made it harder and more expensive to get an H-1B visa, which is the sort of work permit most international college grads need to stay in the country. And both President Trump and many in the Republican Party are pushing legislation that would reduce legal immigration by 50 percent.

It’s not just students who are thinking twice about coming to America. As a friend of mine who runs a math department at a top-tier public university has told me, foreign-born faculty are also thinking twice about coming to a country in which immigration policy is becoming more restrictionist. So we’re not just losing students who want to come here, but also faculty, researchers, and scholars.

In trying to “Make America Great Again,” Donald Trump and his allies are trying to reduce the number of foreign-born people living here. To the extent that they succeed, they will be making U.S. colleges and universities less desirable than they once were. Given declining birthrates and the outsized role immigrants play in starting new companies—foreign-born individuals comprise 15 percent of the labor force but are 25 percent of entrepreneurs who start new businesses—scaring off newcomers is a recipe for decline, not greatness.

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Activists Launch Fresh Effort To Get Rent Control on California’s State Ballot

Undeterred by the drubbing their last measure received on election day 2018, California’s rent control advocates are back with another ballot initiative that would pave the way for price regulation of rental housing across the state.

On Monday, members of the AIDS Healthcare Foundation (AHF) and their affiliated PAC, Housing is a Human Right, announced that they had filed to place a new rent control measure the 2020 November state ballot.

The AHF, and its controversial CEO Michael Weinstein, had been the main drivers behind 2018’s Prop 10, a ballot measure that would have repealed California’s existing state law limiting local governments’ ability to impose rent control—known as the Costa-Hawkins Act.

Despite the $25 million spent by the Yes on Prop 10 campaign—$21 million of which came from AHF alone—the initiative was thrashed, getting only 40.5 percent of the vote and managing to lose in liberal strongholds like Los Angeles County.

Why try again so soon after such a crushing defeat?  According to Weinstein, because the problem Prop 10 was meant to address, escalating housing costs, hasn’t gone away.

“Among the 17 million renters in California, the suffering is unabated,” said Weinstein in a press call yesterday. He also expressed concern that state legislators are not doing enough to advance rent control bills, according to the Sacramento Business Journal.

Currently working its way through the California Assembly is AB 1482, which would cap annual rental increases at 5 percent plus inflation. The bill, sponsored by Assemblyman David Chiu (D–San Francisco) and introduced as part of a larger package of rental regulations, is scheduled for a committee hearing later this week.

The AHF’s new ballot measure is less ambitious.

Instead it would repeal Costa-Hawkins—which bans the imposition of rent control on buildings built after 1994—and allow local governments to regulate rental prices on buildings more than 15 years old. It would also cap the amount landlords could raise rents statewide at 15 percent after a tenant moves out.

This measure—known as the Rental Affordability Act—is more specific than AHF’s failed Prop 10 initiative, which would have merely repealed Costa-Hawkins.

This is likely done to address what many saw as Prop 10’s primary defect: it didn’t actually impose rent controls, it just removed barriers to local governments imposing them.

This allowed opponents to paint Prop 10 as something radical and dangerous, while denying supporters the ability to point to anything concrete the measure would actually do.

Whether the AHF’s new initiative will succeed where the last one failed remains to be seen. The measure still has to go through the long and expensive signature-gathering process before it can qualify for the 2020 ballot.

Even if it does make it on the ballot, landlords and developers are sure to fight it tooth and nail, arguing that rent control will only make California’s housing problems worse by deterring new housing construction.

“This past November, California voters of all political stripes rejected Proposition 10 by an overwhelming margin,” said Tom Bannon, CEO of the California Apartment Association, which represents landlords. “Voters recognized that Weinstein’s proposition would have brought construction of affordable- and middle-class housing to a halt, worsening California’s housing shortage.”

Weinstein is also a highly controversial and polarizing figure within the already-contentious world of California housing politics.

Just last week, the AHF ran an ad campaign lambasting another major housing reform in the state legislature, SB 50, which would upzone land near transit stops and job centers, as a handout to developers looking to bulldoze minority neighborhoods.

In addition to spreading falsehoods about the bill, AHF’s ad campaign did little to ingratiate itself to housing advocates and voters who are amenable to both upzoning and rent control.

The AHF’s inept politicking is not something free marketers should necessarily bemoan. Rent control has long been criticized by economists as a great way to reduce the construction of new housing. Capping the returns developers can make on new apartments will encourage them to build fewer of them, the thinking goes.

A 2018 study published by the National Bureau of Economic Research on rent control expansion in San Francisco found that the policy, while helping some tenants stay in their home, led to citywide rent increases and more rapid gentrification.

Folks who really want to see housing become more affordable should focus less on imposing restrictions on prices, and instead on lifting restrictions on new development.

Recent examples of supply-side housing reform include examples like Seattle and Portland, where a boom in apartment construction is starting to push rents down after years of steep increases, or Houston, where the ease of creating new suburban housing has kept prices in check.

Public comment on the AHF’s ballot initiative is open until May 20, after which the state attorney general will issue an official ballot title and summary.

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Terminal Patients Got Drugs Without FDA Approval. It Added Years to Their Lives.

When Marc Hayutin was 69, he was diagnosed with squamous cell thymic carcinoma, a deadly cancer that affects the lymphatic and endocrine systems. His doctor told him he likely had months to live.

That was six years ago.

He survived thanks to an experimental drug that rapidly shrank his tumors and eased his pain. What’s particularly noteworthy about Hayutin’s recovery was that the drug that saved his life hadn’t been approved for commercial use by the FDA. That would come six years later, at which point Hayutin probably would have been long dead.

He was able to take the medicine anyway thanks to Right to Try—a legal movement that has led to the passage of laws in 41 states allowing doctors to prescribe experimental drugs (ones that haven’t been approved by regulators yet) to patients suffering from life-threatening illnesses. Right to Try was engineered by the Goldwater Institute, a free-market research and litigation organization in Arizona.

In May of 2019, President Trump signed a Right to Try bill into federal law. It was championed by Vice President Mike Pence, who had signed a version of the legislation as governor of Indiana in 2015.

Right to Try is a shot across the bow at the FDA’s core mission. But what does it mean for the future of medicine?

Produced and shot by Zach Weissmueller. Additional interview by Alex Manning. Additional camera by Meredith Bragg, Jim Epstein, Lexy Garcia, Alex Manning, and Mark McDaniel.

“Smoldering,” by Kai Engel, is licensed under a Creative Commons Attribution NC 3.0 license. Engel’s music is available for purchase and download at his Bandcamp page.

“November,” by Kai Engel, is licensed under a Creative Commons Attribution NC 3.0 license. Engel’s music is available for purchase and download at his Bandcamp page.

“Cobweb Morning,” by Kai Engel, is licensed under a Creative Commons Attribution NC 3.0 license. Engel’s music is available for purchase and download at his Bandcamp page.

“After Midnight,” by Kai Engel, is licensed under a Creative Commons Attribution NC 3.0 license. Engel’s music is available for purchase and download at his Bandcamp page.

“November,” by Kai Engel, is licensed under a Creative Commons Attribution NC 3.0 license. Engel’s music is available for purchase and download at his Bandcamp page.

“Drop D for Sirish,” was produced and recorded by Case Newsom.

Bosphorous,” by Aris Spyropoulos, was licensed under a standard license through Artisound.io.

Hang Drum Campfire,” by Aris Spyropoulos, was licensed under a standard license through Artisound.io.

Photo credits: Kevin Dietsch/UPI/Newscom

Additional stock footage provided by Pond5.

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Elizabeth Warren’s Plan To Cancel College Debt Is a Giveaway to the Well-Off and Well-Connected

Elizabeth Warren, the Democratic primary’s foremost Game of Thrones recapper, styles herself a staunch defender of the little guy. In her campaign announcement, for example, the Massachusetts senator declared that millions of American families are currently “struggling to survive in a system that’s been rigged, rigged by the wealthy and the well-connected.” She’s a true champion of the struggling middle class, the sort of grounded and relatable politician who knows what it’s like to be 29 years old and still sharing your parents’ HBO GO password.

To prove her commitment to fighting a system that is rigged by and for the wealthy and well-connected, Warren yesterday announced a new plan (with Warren, there’s always a plan) that would … provide more than a trillion dollars in aid to the wealthy and well-connected.

In addition to ending tuition at public colleges, Warren wants to cancel the vast majority of outstanding student loan debt. The idea is to eliminate debt up to $50,000 for people with household incomes under $100,000, and offer more limited debt cancellation for households making between $100,000 and $250,000. By her own estimates, the full plan, which also includes funds for Pell Grants and historically black colleges, would cost about $1.25 trillion, which she says she would pay for with a tax on wealth that she announced earlier this year.

On the surface, Warren’s idea might sound like another expensive federal benefit for struggling families. But the nature of college attendance and student loans means that Waren’s loan forgiveness plan is a massive giveaway to relatively well-off people.

In the U.S., only about a third of people over 25 have a college degree, making them a comparatively elite group whose elite status is reinforced by, among other things, the connections they make while at college.

On average, college graduates earn about $1 million more during their lifetimes than non-college graduates, according to a Georgetown University study. A separate study from Pew found that college graduates typically earn about $17,500 more annually than people who only had high school degrees.

College graduates aren’t, for the most part, super rich. But generally speaking, they are far more comfortable than the majority who lack such degrees. And the rich, however you define that word, are a class comprised almost entirely of people who graduated from college (with, yes, a handful of notable exceptions). This is a plan that provides a rather large benefit for them.  

Warren’s defenders might respond that it’s still a downward transfer, since the whole thing will be paid for by a new tax on the super wealthy. There are, however, a few problems with this as a financing mechanism.

The first is that the tax might not be constitutional. Even if it is, the second problem is that it’s likely to raise far less money than projected, which is one of the reasons that most countries that have tried similar sorts of taxes over the last two decades have abandoned them.

The third, as the Washington Examiner‘s Philip Klein points out, is that Warren has suggested that this same tax could be used to help pay for a whole slew of other progressive policy ideas, including Medicare for All, the Green New Deal, and subsidized child care, which, all together, would cost so much it’s barely even worth estimating. (Okay, fine: about $42 trillion, give or take the GDPs of a few mid-sized nations.)

This is a little like finding a $20 bill on the street and using it to run up five $20 bar tabs. On the campaign trail, where inspirational speeches are more important than math, you can spend your imaginary wealth tax revenue however many times you’d like. In reality, you can only spend the money once.

I am always hesitant to label policies as class warfare, but here, it’s hard to avoid the description. Warren wants to impose an essentially punitive tax on the rich to fund a program for the merely well-off. And she wants to use the revenue it hypothetically generates not to pay for social programs targeting the poorest and neediest, but to fund debt forgiveness for the comfortable, college-educated upper middle class—which is to say, the sort of people who spend a lot of time reading New York magazine essays about Game of Thrones. This is a different, and more expensive, sort of pandering than an essay about why Warren loves Daenerys Targaryen, but it’s pandering all the same.

I am not without sympathy for those who have racked up tens of thousands in burdensome college debt, and, in the process, helped fund the installation of those august tools of higher learning, campus water parks. The higher education system has become far too dependent on federally-backed loans that encourage colleges to raise tuition, while also encouraging prospective students to borrow ever larger amounts, often to their own long-term detriment. That system should be dismantled. National Review‘s Kevin Williamson has some ideas as to how, which may include modest amounts of debt forgiveness.

But Warren is not looking to attack the systemic faults of higher education so much as to replace and expand them with an even more sweeping system of federal intrusion.

As a policy proposal, her plan will no doubt find supporters. But as a campaign gambit, I suspect it won’t be enough. Despite her pedigree and preparedness, Warren is underperforming in this race. Once recent poll found her trailing behind Sen. Bernie Sanders and former Vice President Joe Biden—who hasn’t even officially announced yet—in the state of Massachusetts. Elizabeth Warren, you may recall, is a senator from Massachusetts.

Yes, the race is still early, and she still has time to release another $42 trillion or so worth of policy proposals. But somehow I doubt that her student loan plan will be the one that moves her to the front of the pack. Warren has a plan for everything, except how to turn around her campaign.

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Harris Clarifies That She Does Not Support Prostitution Decriminalization, Would Use Executive Power To Toughen Gun Laws: Reason Roundup

Kamala Harris answered questions on CNN last night. One important thing the senator and 2020 presidential candidate cleared up is any notion that she actually supports decriminalization of prostitution. Harris still thinks paying for sex should be a crime, she just wants to classify all female sex workers as victims so as to avoid arresting them.

In response to a question about decriminalization, Harris said “what I don’t support is criminalizing these women.” (Are there no male or non-binary sex workers in Harris’ world? Or is it just that only women get to exchange their agency for their freedom?) Harris said she would, however, still target the “johns”an old-timey word for anyone who pays for sex.

This method of sex policing is called the “End Demand” or Nordic/Swedish model. It’s roundly panned by human rights agencies (Amnesty International and the World Health Organization, for example), migrant groups, doctors, criminal justice researchers, and sex workers themselves worldwide, for creating the same harms of full criminalization while letting police and politicians pretend to be taking a liberal and feminist tack.

“The Nordic Model is a legislative wolf in sheep’s clothing,” as Zoë Bulls and Victoria Watson of the Center for Health and Gender Equity put it. “Instead of protecting the health and rights of sex workers, it embodies an elementary, paternalistic understanding” and undermines “the agency and bodily autonomy of sex workers with a victimization framework.”

It’s also not working out so well in countries that have adopted it.

But this sort of progressive authoritarianism seems to be in keeping with the overall Harris 2020 agenda. She also told the CNN Town Hall last night that she would give Congress 100 days to pass “reasonable gun safety laws” and “if they fail to do it, then I will take executive action.”

Harris said her executive order would expand the list of people not allowed to legally purchase guns, require anyone who sells more than five guns a year to conduct background checks on customers, and that any gun seller who violates any gun regulation would automatically have their license pulled by the feds.

In keeping with her all-things-to-all-people strategy, Harris also remained vague about some issues (including impeaching Trump and voting rights for the incarcerated), suggesting that we really need to “look into” or “have a conversation” about them.


FREE MINDS

Child in drag prompts legislative overkill in Ohio. In response to one example of parents letting their child perform in a charity drag show, Ohio is seeking to create a new law criminalizing the appearance of children in any show that “appeals to prurient interest,” an incredibly vague category. There are already laws criminalizing actual abuse and (sexual and labor) exploitation of children, this new rule would simply invite threats against and prosecutions of parents for anything folks found distasteful or didn’t understand.

In the case of the drag show, the child’s parents say there was nothing sexual about the performance and that it’s actually outraged conservatives who are sexualizing children here. But the bill’s sponsor is invoking everyone’s favorite new bogeyman—human traffickers—to back up his legislation. “Given our heightened focus on human trafficking and the role money plays in trafficking children, I knew I had to take action to make sure this activity does not occur again,” he said.


FREE MARKETS

Washington law could keep kids in car seats through middle school. A new measure signed into law by the state’s governor says kids must use booster seats until they reach a height of 4 feet and 9 inches tall.

“In some cases, that means some kids could still be in a booster at the age of 12,” points out ABC7 News. “The new guidelines will go into effect in January.”


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The Government Is Treating Assange Like a Hacker to Punish His Journalism

Much of the discussion over the recent arrest and indictment of Wikileaks founder Julian Assange has revolved around whether or not his activities qualified as journalism. This is a key element in the government’s vendetta against the transparency activist.

However, the indictment justifying Assange’s extradition to the United States is based on alleging hacking. But Assange didn’t do much in the way of “hacking” at all. In truth, much of the government’s affidavit against Assange describes perfectly legal and legitimate technology-assisted journalism.

By conflating hacking and journalism, prosecutors kill two birds with one stone. They can take down their public enemy number one while setting a precedent that could harm future would-be muckrakers.

In December of 2017, the FBI filed an affidavit to support a criminal complaint against Assange based on an alleged conspiracy to violate the Computer Fraud and Abuse Act (CFAA). This law, which got kicked into gear after President Reagan was spooked by the hacking movie WarGames, makes it a crime to “knowingly access a computer without authorization or exceeding authorized access” to obtain information.

As you might expect from a movie-hacker-inspired ’80s-era computer law, the CFAA is muddled and vague. What exactly does “without authorization” mean? If a company like AT&T accidentally leaves customer information publicly accessible, and someone stumbles upon that data, does that qualify? Big companies caught with their pants down obviously think so, as do others who ideologically oppose the outcomes of such “hacks.”

Prosecutors have taken advantage of this unclear language to throw the book at a wide range of activities that aren’t obviously “hacking” or even in violation of the spirit of the law.

A famous and tragic victim of CFAA prosecutorial excess is Aaron Swartz, Reddit co-founder and internet activist, who committed suicide in the face of a possible $1 million fine and lengthy prison sentence. His crime? Violating academic journal terms of service to publish open access scholarly publications.

Assange will now get the Swartz treatment. His enemies are legion; Wikileaks’ activities have exposed powerful groups across the world.

You would think the FBI has had enough time to put together an ironclad legal assault. But when you look at the affidavit, the charges the government has whipped up to take down its enfant terrible are actually pretty weak tea.

Here is the sole charge: that in 2010, Julian Assange gave Chelsea Manning (known then as Bradley) suggestions on how to crack a password. That’s it. We don’t know if they were successful, by the way—not that it matters in the eyes of the CFAA. But it’s pretty incredible that for all of Assange’s supposed black hattery, the only thing the government could nab him on is a passing conversation on rainbow tables.

It’s ridiculous, but the 29 words of Assange’s chat to Manning could cost him five years in the slammer. (It’s quite possible that the feds will add other charges as well.)

This is crazy world of the CFAA. The affidavit admits that “there is no other evidence as to what Assange did, if anything, with respect to the password.” The New Yorker‘s Raffi Khatchadourian suggested that Assange’s offer was merely bluster to make Wikileaks’s shoestring five-person operation appear more sophisticated to a nervous source.

No matter. The very fact that password guessing was brought up in the course of hundreds of chats discussing the publication of newsworthy documents is enough under the CFAA. As the affidavit crows, “the recovered chats described above reflect an agreement between Manning and Assange to crack the hash.” Gotcha.

It’s worth pointing out that none of this is news—these chat logs surfaced back in 2013, and WIRED discussed the allegations in 2011. Nor was this relatively minor infraction worth including in the government’s separate case against Manning. This may just be all that the feds could pin on Assange, at least for now.

If that’s all that Assange is accused of, why the 40 pages of exhaustive detail in the affidavit? This brings us to one of the more troubling and less discussed elements of the Assange indictment: It demonizes standard journalistic tools like encryption technologies by association.

An analysis by the Electronic Frontier Foundation, a nonprofit organization spearheading the effort for CFAA reform, provides context. The FBI affidavit darkly describes things like Manning’s use of the open source OS Linux. Another report from the Reporters Committee for Freedom of the Press echoes EFF: The chat platform Jabber, identity-concealing encryption, and cloud drop boxes are all lumped into the “manner and means” of the alleged conspiracy. This makes these innocuous and useful technologies appear sinister.

The FBI does not shy away from directly impugning Assange’s journalistic interest. For example, the Bureau’s press release condemns Assange for “actively encouraging Manning to provide more information.” Well, what investigative journalist hasn’t? You want to get the full story right.

Some have argued that this is an appropriate use of the CFAA. It’s not journalism, it’s like helping your source to pick a lock. Well, I would say it’s actually more akin to discussing whether and how to access information with an essential source who has provided solid leaks over several months. Anyway, Assange isn’t charged with “helping to pick a lock” but rather the more nebulous “agreeing to conspire to maybe help to pick a lock that wasn’t actually picked.”

But all of that largely misses the point.

As The Intercept‘s Micah Lee points out, considering “measures to conceal Manning as the source of the disclosure of classified records to Wikileaks” as part of a criminal conspiracy sets a dangerous precedent for all investigative journalists.

A lot of people don’t like what Assange did. (It’s kind of funny to compare people’s opinions on Wikileaks over time.) Or maybe they just don’t like the guy himself. Fine.

But it’s hard to deny that the federal government is wielding the CFAA as it often does: a catch-all pretext to crack down on troublemakers.

The Reporters Committee notes that this CFAA pseudo-technicality gives the government a way out of potential First Amendment problems involved with prosecuting the actual publication of the leaks.  (This is the justification the Obama Administration gave for failing to prosecute.) They nab their guy without the constitutional fuss. Is such prosecutorial opportunism really something that Assange critics in the media wish to defend? Would their tune change if it was directed at one on their own team?

No one honestly believes that the FBI is going after Assange on a good faith mission to uphold the Computer Fraud and Abuse Act. We know it’s because Wikileaks exposed government operatives. You may think he’s a hero. You may think he’s a scoundrel. Either way, we should all be worried about such abuses of “hacking” laws to crush ideological enemies.

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