Archives: September, 2013

You Shouldn’t Need a License to Speak

Washington, D.C. has served as the backdrop to some of the most important speeches in American history—from Martin Luther King’s “I Have a Dream,” to Franklin Roosevelt’s stirring call for a declaration of war after Pearl Harbor, to almost every president’s inaugural address (some less memorable than others). The city is also home to monuments and statutes celebrating the memory of men and women who spent their lives fighting for freedom, especially the freedom of speech.

But if you want to show this history off to tourists, you’d better have a license. District law requires tour guides to pass a history test on 14 subjects, covering material from no less than eight different publications, before they can go into business—all for the purpose of “protecting” tourists from misinformation.

In other words, you have to get a “speaking license” from the city.

Tonia Edwards and Bill Main operate “Segs in the City,” a company that gives Segway tours of the city’s historical landmarks, and they are unlicensed. Consistent with the history and values of free speech represented by D.C.’s monuments, the Institute for Justice is helping these entrepreneurs challenge the licensing law as an unconstitutional abridgment of First Amendment rights. After losing in district court, the plaintiffs appealed to the U.S. Court of Appeals for the D.C. Circuit.

Joined by First Amendment expert Eugene Volokh, Cato has filed an amicus brief supporting the lawsuit. We argue that the licensing regime is a content-based restraint on speech and therefore must pass the strictest judicial scrutiny (so the government needs a compelling reason for it and has no other way of accomplishing the same goal). The law is a content-based speech regulation in that it is (a) triggered by the content of speech, and (b) justified on the basis of the content that it regulates.

The Supreme Court has repeatedly held that a law regulating the content of speech – as opposed to its location, timing, or manner – is subject to strict scrutiny. The justifications offered for the licensing law explicitly refer to the content of guides’ speech (“misinformation”). That is as much a content-based justification as saying that people need to be protected from hearing “erroneous” political opinions or “controversial” historical theories.

Finally, we argue that tour guides are not members of a “profession,” such as lawyers, doctors, and accountants, which could merit less First Amendment protection in order to protect the public from harm. Unlike those professions, tour guides don’t have intimate relations with clients. Instead, like most businesses, they simply have customers. The government cannot possibly require authors, public lecturers, or documentary filmmakers to get licensed in order to protect the public from “misinformation,” and it has no more basis for licensing tour guides.

Sustainable Budget, Not “Sustainable Communities”

Commenting on the federal budget the other day, House Minority Leader Nancy Pelosi said “the cupboard is bare. There’s no more cuts to make.”

That view might be reasonable if the federal government was supposed to be the current octopus it is, with tentacles reaching into every aspect of society, micromanaging local affairs, and simultaneously trying to be policeman around the globe.

But most Americans don’t want that. They are tired of costly foreign wars, growing federal intrusions on their privacy, and federal meddling in their schools and other local activities.

So Rep. Pelosi should put aside her stubborn and uninformed view, and instead “go through our federal budget — page by page, line by line — eliminating those programs we don’t need,” as President-elect Obama promised he would do in 2008.

That’s what we’re doing at Cato. The other day, for example, my assistant Nick Zaiac noticed that a program called “Partnership for Sustainable Communities” handed out nearly 200 new grants, and few if any of the items funded are properly federal responsibilities.

The program’s website includes lots of warm and fuzzy phrases like “walkable, livable communities” and “environmentally sustainable regions.”  I’m all for walking, living, and sustaining, but the program’s activities are properly local stuff, not federal. Here are some of the new grants, with my editorial comments:

  • Concord, New Hampshire: $4.7 million to “reconstruct a 12-block section of Main Street in downtown.” It’s the town’s main street for goodness sakes, so shouldn’t the people who live there prioritize it in their own budget?
  • Lewes, Delaware: Federal help is going toward “walking audit technical assistance,” which means “an assessment of how safe and pleasant its streets are for pedestrians.” Geez, just pay my hotel over a sunny weekend, and I’ll do that assessment for free.
  • Boston, Massachusetts: $300,000 for a Choice Neighborhoods Planning Grant for the Whittier Street Apartments. The grant is “to provide a plan that will transform the neighborhood and address longstanding issues of poverty and lack of opportunity.” But will a government central plan work to change the lives of all the different individuals who live there?
  • Bayonne, New Jersey: $11 million to expand the capacity of the seaport. Seaports are a vital piece of infrastructure, but surely they would be better off privatized, unsubsidized, and untethered from Washington. Many British ports were privatized in the 1980s, and appear to be doing very well in today’s competitive environment.
  • Fort Lauderdale, Florida: $18 million to “build a new streetcar line in downtown.” Streetcars are a dubious investment, and generally less efficient than buses. If Fort Lauderdale wants to blow its own money, it can do so, but why should the rest of us have to pay?

We need a sustainable federal budget, so we should terminate “Sustainable Communities.” Indeed, all of the $560 billion a year in federal grants for such state/local projects is unsustainable. It should all be terminated. Here are eight reasons why.

The Ban on Muslim Brotherhood Will Backfire

With today’s ruling by the ‘Cairo Court for Urgent Matters’, banning the activities of the Muslim Brotherhood and ordering a confiscation of its assets by the government, the Egyptian regime is taking the crackdown against its political opponents to the next level. While it is unclear what the decision means for the future of the Brotherhood’s political arm, the Freedom and Justice Party, the government has committed itself to disbanding an organization which counts between 300,000 and 1 million members and which has been in existence since 1928.

That is unlikely to work. The Brotherhood was banned during Nasser’s presidency. In Syria, Brotherhood membership was a capital offence between 1980 and 2011. If anything, these and similar bans strengthened the organization’s narrative of victimhood and enabled it to reemerge strengthened and relying on broader popular support. In a recent paper, I show that the electoral success of the Muslim Brotherhood in the aftermath of Arab Spring was foreseeable and resulted from the fact that the group had been actively involved in the provision of social services, particularly to poorer segments of the Egyptian population, and possessed a well-recognized brand name. Over time, this electoral advantage would have dissipated, particularly as the Brethren proved to be rather inept policymakers.

Alas, with the crackdown on the organization, the current leadership of the country seems to be determined to drive the organization underground and to radicalize it. At this moment, Alan Krueger’s characterization of terrorism sounds as an ominous warning of what is to come unless the Egyptian military relinquishes its grip to power:

[t]errorists and their organizations seek to make a political statement; terrorists arise when there are severe political grievances with no alternatives for pursing those grievances.

Politicians and Their Friends

The Sunday Washington Post has a lengthy story on Terry McAuliffe’s highly successful “business” career. McAuliffe, of course, is the longtime Democratic fundraiser and “first friendof Bill Clinton who is now the Democratic nominee for governor of Virginia.

How did a lifelong political operative make many millions for himself? The Post reviews:

The pitches to potential investors in a new electric-car company have been unabashed about its promise: It will enjoy “billions” in government subsidies and tax credits, will rise to a dominant position in the U.S. electric-car industry and, perhaps most critically, has a politically connected founder with the savvy to make it all happen….

The prospectus, along with other documents reviewed by The Post, shows how GreenTech fits into a pattern of investments in which McAuliffe has used government programs, political connections and access to wealthy investors of both parties in pursuit of big profits for himself.

That formula has made McAuliffe a millionaire many times over, paving the way for a long list of business ventures, including his law firm, from which he resigned in the 1990s after profiting — along with his partners — from fees paid by domestic and foreign clients seeking results from the federal government.

A review of McAuliffe’s business history shows him often coming out ahead personally, even if some investments fail or become embroiled in controversy.

Or as McAuliffe told the New York Times:

”I’ve met all of my business contacts through politics. It’s all interrelated,” he said. When he meets a new business contact, he went on, ”then I raise money from them.”

And how did Bill Clinton meet his very good friend? Was it in high school? College? At Oxford? The local Kiwanis Club? No, President Clinton was down in the dumps after his electoral thumping in 1994 and needed to get in gear for his reelection campaign. Harold Ickes, “his politically astute deputy chief of staff,” urged him to meet McAuliffe, who had been a fundraiser for President Carter, when he was 23 years old, and Dick Gephardt. McAuliffe quickly recommended renting out the Lincoln Bedroom, and that worked so well that they became fast friends, maybe even “best friends.”

Philly Schools—Is Money Really the Problem?

House majority leader Eric Cantor is in Philadelphia today to pick up Attorney General Eric Holder’s gauntlet. Holder’s DOJ has filed suit to shut down a Louisiana school voucher program that serves an overwhelmingly African American population, on the grounds that… it’s bad for African Americans. Cantor vows to fight the DOJ if Holder doesn’t drop the suit, and he’s delivering his message at a Philly charter school serving mostly African American kids—one that has about six times as many applicants as it has places.

Apart from its proximity to DC, Philly might seem an odd location for Cantor’s presser, but the city of brotherly love is going through an educational drama of its own. The Philadelphia School District has had budget problems for years. It’s seen horrendous violence, plummeting enrollment, and commensurate staff layoffs and school closures. Most media accounts bewail lack of funding as the key problem. Salon.com recently ran a story with the subhead: “Pennsylvania’s right-wing governor drains public schools of basic funds.” CBSNews laments “the same old problem: not enough money.”

What those and all other Philly school district stories I’ve seen have in common is that they fail to say how much the district actually spends per pupil. Not having attended journalism school, I missed whatever class teaches education reporters to omit the single most important fact in their stories, so allow me try to fill in the blank.

A quick Google search reveals that Philly’s 2013-14 budget is $3.03 billion (p. 50), of which $862 million is for charter schools. The district serves 136,000 students in its regular public schools and another 63,000 in charter schools. So the regular public schools, the ones that are being “systematically murdered” by budget cuts, spend $15,941 per pupil. That’s about $3,000 more than the national average. It’s also $1,600 more than the day tuition at Temple University. The city’s charter schools receive about $2,300 less than the regular public schools.

That’s not to say that the district’s classrooms are fully stocked with supplies or that the city’s best teachers are paid what they’re worth. What it does suggest is that the cause of those problems may have less to do with the amount of funding available than with the way it is allocated. After all, Washington, DC spends around $29,000 per pupildouble what Philly does—and it performs worse in both reading and math by the 8th grade.

Ohio Shouldn’t Use Election Laws to Chill Political Speech

During the 2010 federal election, the Susan B. Anthony List (SBAL), an advocacy organization “dedicated to electing candidates and pursuing policies that will reduce and ultimately end abortion” published ads in the district of former Rep. Steven Driehaus which read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” The ad reflected SBAL’s interpretation of the impact that the Affordable Care Act would have on the funding of abortion procedures.  

Driehaus filed a complaint with the Ohio Elections Commission, claiming a violation of a state law that makes it illegal to knowingly and intentionally make false or misleading statements about a candidate for elected office. While the case was dropped, the Commission did find that there was probably cause to believe that SBAL violated the law.

SBAL then sued in federal court, claiming that the Ohio law was an unconstitutional restriction of its First Amendment rights. Both the district court and U.S. Court of Appeals for the Sixth Circuit dismissed the lawsuit. The courts’ reasoning was that SBAL hadn’t suffered any harm that would give it standing to challenge the law because the Commission hadn’t actually found that SBAL violated it or levied a fine. In order to challenge a law preemptively, the courts held, a litigant has to show that he intends not to comply with the law and thus face an “imminent” prosecution—which SBAL had not shown to the courts’ satisfaction. 

SBAL has asked the Supreme Court to decide the following question: “To challenge a speech-suppressive law, must a party whose speech is arguably proscribed prove that authorities would certainly and successfully prosecute him?” 

Joining the Institute for Justice, Cato has filed an amicus brief urging the Court to take the case because the Sixth Circuit’s holding “slammed shut the courthouse door on plaintiffs looking to challenge a criminal law that is specifically intended to suppress certain types of speech.” The brief makes three key points: (1) the standard set by the Sixth Circuit is much more restrictive than that used by the majority of circuit and state courts, and is inconsistent with the Supreme Court’s First Amendment jurisprudence; (2) requiring SBAL to say that it wishes to violate the law in future would require it to destroy its credibility by saying (correctly or incorrectly) that its statements about Driehaus or other candidates were false; and (3) the Sixth Circuit erred by taking an overly formalistic and idealized view of the law, and shouldn’t have ignored evidence about the way that the law is actually implemented. 

Because anyone, whatever his status, can initiate an Ohio Elections Commission investigation, there is a very real risk that SBAL’s enemies will file complaints in an attempt to stifle the organization’s free expression. Indeed, the record shows that statutes of this kind “are frequently used as weapons in campaign arsenals to silence or distract political opponents in the midst of heated elections.”  

The Court will decide whether to take Susan B. Anthony List v. Driehaus later this year. 

This blogpost was co-authored by Cato legal associate Gabriel Latner.

Sorry about the Recession, America, But Don’t Worry about Washington

The Census Bureau reports, says a Wall Street Journal article, that between 2000 and 2012 “median household incomes for the nation as a whole dropped 6.6% — from $55,030 to $51,371.” There’s reason to doubt that real incomes are actually down over such a long period. But growth is certainly slow.

Except in Washington. The Journal notes:

The income of the typical D.C. household rose 23.3% between 2000 and 2012 to an inflation-adjusted $66,583, according to the Census Bureau’s American Community Survey, its most comprehensive snapshot of America’s demographic, social and economic trends. …

The Washington, D.C. metro area — which includes the surrounding suburbs in Maryland, Virginia and West Virginia — has it even better, with a median household income of $88,233 that ranks highest among the U.S.’s 25 most populous metro areas. Tampa, Florida’s median income, by contrast, is under $45,000….

[Washington’s]  local economy is expanding faster than the broader nation, and its property market is soaring, thanks in part to increased federal-government spending and an influx of federal contractors, lawyers and consultants.

As we’ve written here many times, a rising tide of government spending may be bad for the American economy, but it’s great for the Washington area.

Washington is wealthy and getting wealthier, despite history’s slowest recovery in most of the country. As we’ve said here before, this of course reflects partly the high level of federal pay, as Chris Edwards and Tad DeHaven have been detailing. And it also reflects the boom in lobbying as government comes to claim and redistribute more of the wealth produced in all those other metropolitan areas. 

Money spent in Washington is taken from the people who produced it all over America. Washington produces little real value on its own. National defense and courts are essential to our freedom and prosperity, but that’s a small part of what the federal government does these days. Most federal activity involves taking money from some people, giving it to others and keeping a big chunk as a transaction fee.

Every business and interest group in society has an office in Washington devoted to getting some of the $3.6 trillion federal budget for itself: senior citizens, farmers, veterans, teachers, social workers, oil companies, labor unions - you name it. The massive spending increases of the Bush-Obama years have created a lot of well-off people in Washington. New regulatory burdens, notably from Obamacare, are also generating jobs in the lobbying and regulatory compliance business.

Walk down K Street, the heart of Washington’s lobbying industry, and look at the directory in any office building. They’re full of lobbyists and associations that are in Washington, for one reason: because, as Willie Sutton said about why he robbed banks, “That’s where the money is.”