Topic: Law and Civil Liberties

CADC Rules DOJ Discovery Blue Book Off-Limits…For Now

Earlier this month, the U.S. Court of Appeals for the D.C. Circuit (CADC) ruled that the U.S. Department of Justice Federal Criminal Discovery Blue Book for prosecutions were exempt from Freedom of Information Act (FOIA) requests. The National Association of Criminal Defense Lawyers (NACDL) filed the suit to make the book public, and for good reason.
 
For background, criminal discovery is the process by which a prosecutor’s office turns over evidence to the defense team that is relevant to the criminal case before trial. Particularly, evidence that might be helpful or exculpatory to a criminal defendant must be turned over under Brady v. Maryland (1963) and subsequent cases. For example, if investigators independently found an eyewitness that supports a defendant’s alibi, or discovers that a witness or police officer has a history of dishonesty, that information must be turned over to the defense counsel in the furtherance of justice. Such evidence is known as “Brady material.” 
 
The origin of NACDL’s case dates back to the bungled prosecution of the late Sen. Ted Stevens (R-AK). A federal judge threw out Stevens’ 2008 conviction for corruption because the DOJ hid evidence from the defense team, including contradictory statements by a star witness that were crucial to proving Stevens’ alleged criminal intent. Furthermore, the judge ordered an independent inquiry into the handling of the case that resulted in a damning 514-page report that faulted the DOJ for its mismanagement and “egregious misconduct” in the case.

Is Johnson-Weld a Libertarian Ticket?

Plenty of libertarians were wary of seeing former Massachusetts governor Bill Weld as the Libertarian Party’s nominee for vice president. Even those of us who haven’t had anything to do with the LP would like to see the party represented by, you know, libertarians. Weld, who seems like a nice man and was apparently a decent governor, is the living expositor of the difference between a libertarian and someone who’s “socially liberal and fiscally conservative.”

Case in point: this week’s ReasonTV interview, where Weld praises Justice Stephen Breyer and Judge Merrick Garland, who are the jurists most deferential to the government on everything, whether environmental regulation or civil liberties. Later in the same interview, he similarly compliments Republican senators like Mark Kirk and Susan Collins, who are among the least libertarian of the GOP caucus in terms of the size and scope of government and its imposition on the private sector and civil society.

My point isn’t to criticize the Weld selection as a matter of political strategy. Indeed, he seems to have brought a certain respectability to a party that is rarely taken seriously. And if that moves the national political debate in a more libertarian direction, bully.

But then look at the most recent news made by the man at the top of the LP ticket. Former New Mexico governor Gary Johnson, in an interview with (my friend) Tim Carney of the Washington Examiner, calls religious freedom “a black hole” and endorses a federal role in preventing “discrimination” in all its guises. More specifically, he’s okay with fining a wedding photographer for not working a gay wedding – a case from New Mexico where Cato and every libertarian I know supported the photgrapher – and forcing the Little Sisters of the Poor to pay for contraceptives (where again Cato and libertarians supported religious liberty). He also bizarrely compare Mormonism to religiously motivated shootings.

In other words, Johnson doesn’t just come off as anti-religion, but completely misses the distinction between public (meaning government) and private action that is at the heart of (classical) liberal or libertarian legal theory. That’s a shame: it makes him no different than progressives in that regard – or social conservatives, who miss the distinction in the other direction, restricting individual rights in addition to government powers.

And so, what we’re left with is a Libertarian Party ticket that’s positioning itself as “moderate” more than anything else. Again, that may well be a clever political ploy – though it makes the dubious bet that there are more #NeverHillary Democrats than #NeverTrump Republicans – but it’s not very encouraging for libertarians who want to “vote [their] conscience.”

Nevada Supreme Court Hears Education Savings Accounts Lawsuits

Today, on Milton Friedman Legacy Day, the Nevada Supreme Court will hear oral arguments in two lawsuits against the state’s education savings account (ESA) law. Under the law, students who leave their assigned district school can receive a portion of the funds that would have been allocated to them in their district school (about $5,100 to $5,700 depending on family income). The parents can use those funds to customize their child’s education by purchasing a wide variety of educational good and services, including private school tuition, text books, online courses, homeschool curricula, and more. They can even save funds for future expenditures. A similar program in Arizona has proved highly popular among parents.

However, a group dedicated to protecting the district school monopoly is asking the state supreme court to strike down the program before it goes into effect:

“I fear that, because this is the most aggressive model for this program, the privatization of education … will spread like wildfire,” said Electra McGrath-Skrzydlewski, whose 12-year-old daughter is a student in the Clark County School District.

McGrath-Skrzydlewski joined several parents last October to sue the state in a Carson City court, challenging SB302 on the grounds that it diverts money meant “exclusively” for public schools to private schools and other private expenses. Their complaint also claims the bill violates a constitutional requirement that lawmakers create a “uniform” system of public schools.

As Neal McCluskey noted on Twitter, even the opponents of the ESA assume that parents want it. And they’re right: more than 8,000 eager families have already applied.

David Boaz on educational choice

In separate case, the ACLU claims that the ESA law violates the state constitition’s “uniformity” clause as well as a separate constitutional provision prohibiting the state funding of religious instititions. However, as I’ve discussed previously, these arguments do not hold water. The ACLU wants the court to interpret the constitutional mandate that the state create a system of “uniform” and nonsectarian schools to mean that it must exclusively fund those schools. Fortunately, the lower court rejected this strained interpretation, holding instead that “the Nevada constitution requires the state to establish a non-sectarian system of public schools, but it is also empowered to encourage education by other means that are not limited to non-sectarian schooling.”

Likewise, the lower court rejected the ACLU’s Blaine Amendment claim, holding that it “was not intended to preclude any expenditure that has an incidental benefit to religion, where such is made for a primary secular purpose,” and that the ESA “was enacted for the valid secular purpose of providing financial assistance to parents to take advantage of educational options available to Nevada children.”

For more information on the two cases and to watch live feed of the oral arguments beginning at 1:00pm EDT, go to Choice Media’s website.

Not the Only Thing There’s Just Too Little Of

Last night at the Democratic National Convention, many speakers made impassioned pleas for “common sense” gun reform. That might sound like a good idea but, like most public policy, gun policy is hard

As I wrote at the Washington Post website in December, using “common sense” to describe new gun policy is a “convenient piece of jargon that conveys level-headedness, non-partisanship, and empathy” without tackling the issues that drive gun crimes and gun deaths:

The United States contains an estimated 270 million to 310 million firearms. All gun crimes and gun deaths are overwhelmingly perpetrated with handguns, yet barely one quarter of Americans favor a handgun ban that would be required to lower that number significantly. So-called “assault weapons” and “high-capacity” magazines are easy political targets because they sound scary to people unfamiliar with firearms. However, restricting either or both would likely have no measurable effect on gun crime rates.

This week, the Washington Post published more information that should inform the push for more gun laws: less than 20 percent of all gun crimes are committed with legally owned firearms. This means that the overwhelming majority are committed with illegal weapons and/or by people who are not legally permitted to own guns. If lowering gun crime is the intended outcome of new legislation, most of the current proposals ignore 80 percent of the gun crime that happens in our country.

This is not to say there are no ways to improve our laws to reduce gun crime. But, with apologies to Burt Bacharach, what the policy world needs now are evidence-based solutions to our gun violence problem, not new laws that have no measurable effect on reducing gun crime.

Free Speech and the University of Cape Town

Cato adjunct scholar Flemming Rose who recently won the 2016 Friedman Prize for Advancing Liberty has been disinvited from speaking at the University of Cape Town in South Africa. The academic freedom committee of the university had asked Rose to give the annual TB Davie Academic Freedom Lecture. The Vice Chancellor of the university rescinded the invitation. He argued that Rose’s lecture might divide the campus leading to protests and even violence. He also said having Rose “might retard rather than advance academic freedom on campus”. The last statement will remind many people of Doublespeak.

Fortunately, this injustice has prompted several principled defenses of free speech.

Kenan Malik, an English writer and broadcaster, who gave the TB Davie lecture last year, makes the case for open debate and defends Rose.

Nadine Strossen, a former ACLU president and current law professor at New York University, quickly provided a comprehensive critique of the decision. Professor Strossen adds her comments about Flemming Rose that she gave at the Friedman Prize dinner.

Ronald K.L. Collins, a law professor at the University of Washington who runs the First Amendment News blog, has challenged an administrator at the University of Cape Town to reply to these critiques. Collins has done the right thing: a bad decision has led to critical speech which now invites a response.

Finally, Flemming Rose himself has replied, citing his recent defense of free speech for radical imams: “A more diverse society needs more free speech, not less.” He continues:

It’s really a sign of poor judgment and bad academic standards to disinvite me on the basis of what other people say about me, when I have published a book that covers my own story, which tells how my views on politics were formed and analyses the history of tolerance and free speech. The book is not only focusing on Islam. I write about the Russian Orthodox’ Church silencing of criticism, Hindu-nationalists attacks on an Indian Muslim artist and so on and so forth. Why use second-hand sources when you can read the primary source in English and make up your mind?

Why not indeed? Rose’s book, The Tyranny of Silence: How One Cartoon Ignited a Global Debate on the Future of Free Speech published by Cato in 2014 may be found here or at your local bookseller.

 

Don’t Ground “Uber in the Sky”

Last year, a company called Flytenow was poised to revolutionize air travel by allowing private pilots already going to a destination to share their costs with would-be travelers—kind of like a college rideshare bulletin board, but on the Internet. The service would pair pilots with potential passengers, for a small fee no greater than the cost of fuel. It’s been called “Uber in the sky.” But in December, Flytenow shut down after the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Aviation Administration’s determination that the service must obtain the highest levels of licensing, akin to what major airlines and their pilots secure.

The FAA decided that these pilots were not simple private individuals sharing cost, but were “common carriers,” subject to heightened liability and expensive professional licensing. Common carriers—like buses, trains, and commercial airlines—have been treated specially in the law since medieval times, and they differ from Flytenow’s online bulletin board.

As Flytenow seeks review in the Supreme Court, Cato Institute, joined by TechFreedom, has filed an amicus brief in support.

First, “common carriage” is a term defined by common law, stretching back to way before the founding of the FAA—indeed hundreds of years before the Wright Brothers—and the FAA’s interpretation here directly contravenes that established meaning. One glaring consistency across the last 600 years of common law is that the carrier must hold itself out for indiscriminate public hire. Flytenow pilots, as a matter of right, can turn down any passenger for any reason (or no reason) and thus are by definition not common carriers. This alone is reason enough to reverse the court’s decision and overturn the FAA ruling.

But second, and more basically, the D.C. Circuit granted very broad deference to the FAA’s interpretation of what constitutes common carriage, despite that being a term defined at common law. Courts often defer to an agency’s expertise in a particular subject matter—which essentially means that the agency’s decision is usually upheld under some “deference” framework. But according to the Supreme Court’s ruling in Texas Gas Transmission Corp. v. Shell Oil Co. (1960), when an agency interprets the common law, a reviewing court shouldn’t simply defer to the agency’s interpretation.

Economics Will Be Our Ruination II

Economics appears to be a neutral tool, but it often subtly embeds values that we are better off surfacing and discussing. In a recent post henceforth to be known as “Economics Will Be Our Runiation I,” I pointed out how, by preferring to measure the movement of dollars, orthodox economics treats leisure as a bad thing and laments advances in technology-based entertainments.

This installment of EWBOR focuses on an interesting and insightful article recently published in the University of Pennsylvania Law Review, “An Economic Understanding of Search and Seizure Law.” In it, George Washington University Law School professor Orin Kerr shows that the Fourth Amendment helps increase the efficiency of law enforcement by accounting for external costs of investigations. Here is his model:

The net benefit of any particular investigative step can be described as P*V – Ci – Ce, where P represents the increase in probability that the crime will be solved and successfully prosecuted, V represents the net value of a successful prosecution resulting from deterrence and incapacitation, Ci represents the internal costs of the investigative step, and Ce represents its external costs.

Ci means things like the cost of training and equipping police officers and paying their salaries, as well as their own use of their time. Ce, external costs, “include privacy harms and property losses that result from an investigation that is imposed on a suspect. They also include the loss of autonomy and freedom imposed directly on the subject of the investigation (who may be guilty or innocent) as well as his family or associates.” Kerr rightly includes in Ce more diffuse burdens such as community hostility to law enforcement.