October 22, 2020 5:16PM

21 People Died in Immigration Detention in 2020

The detention of illegal immigrants is an important part of immigration enforcement. Immigrants who are apprehended at the border or in the interior of the United States are detained in Immigration and Customs Enforcement (ICE) facilities until they are removed from the United States. In recent years, many reports have surfaced of immigrants who have died while in detention or shortly after being released to medical facilities for treatment. This problem has worsened during the COVID-19 pandemic. The rate of death in ICE detention facilities is an important metric of how humane those facilities are.

There are two primary pieces of data required to calculate the death rate in immigration detention: The number of people in detention each year and the number of deaths. Immigration and Customs Enforcement (ICE) runs all of the detention facilities and they provide the number of deaths and admissions. The American Immigration Law Association provides some more recent numbers of deaths in detention, but I only include those that ICE also counts. The admissions into ICE detention facilities variable is closest to the number of unique individuals who were present in a detention facility in each year, so I use that number. Both variables run through the end of Fiscal Year (FY) 2020.

Twenty‐​one people died in immigration detention in FY2020, up from 8 in FY2019. During the same time, the number of admissions into ICE detention facilities fell from 510,854 to 177,391 (Table 1). The number of admissions to ICE detention facilities fell drastically because the U.S. government started immediately returning illegal immigrants apprehended at the border under Title 42 authority to halt the spread of COVID-19. The FY2020 death rate in ICE immigration detention was 11.8 per 100,000 admissions, a 656 percent increase from FY2019 and just below the highest ever recorded in 2004. 

Figure 1 shows the total number of ICE detentions and the total number of deaths in custody. The deaths in ICE detention facilities were highest during the George W. Bush administration at 91 total deaths with an average rate of 6.4 per 100,000 admissions per year. Those death rates fell rapidly after FY2004, the first full year when ICE was in operation, from 11.9 per 100,000 admissions to 2.9 per 100,000 admissions in 2008. The death rate rose 26 percent during the first year of the Obama Administration in 2009, then started falling again the next year with an average annual death rate of 2.3 per 100,000 admissions during his entire presidency. We only have data for four years of the Trump administration where the average annual death rate is 3.6 per 100,000 admissions.

This excellent study of death rates in ICE detention gives three reasons for why death rates fell so much during the Bush years and remained low thereafter. The first is that the length of time that immigrants spent in detention fell, which means there was less opportunity for each individual to die even though more were in detention. The second was that ICE increasingly relied on Secure Communities and local law enforcement to first arrest illegal immigrants and then transfer them to ICE. Local law enforcement agencies typically provided any healthcare that the immigrants needed before being transferred to ICE or, tragically, many of them died in local law enforcement custody. The third is that ICE medical policies and practices improved over time. Death rates in ICE detention increased in 2020 because there were many fewer admissions of young illegal immigrants and asylum seekers due to changes in other policies along the border and because of the COVID-19 pandemic.

October 22, 2020 9:45AM

To Improve Content Moderation, Formalize the Collaborative Appeal

Banned social media users have long petitioned for reinstatement via informal appeals amplified by prominent supporters. They may be public campaigns, involving supportive hashtags and mass retweets, or private pleas to platform staff known to the banned user or a verified friend. While platforms provide some formal appeal mechanisms, they rarely provide opportunities to solicit support, clarification, or additional context from other users. At scale, reversing an erroneous ban often seems like a matter of making enough noise to demand a second hearing. Sonya Mann presents this phenomenon as pseudo‐​feudal, highlighting the inherent inequality of informal collaborative appeals.

When regular users run afoul of the algorithm, or are dinged by a moderator, it’s common for them to reach out to accounts with larger followings. The hope is that their pleas will be sent to the top by a sympathetic intermediary. It’s not unlike begging a duke to bring your grievance to the king. Jack Dorsey doesn’t care if some random Twitter account gets shut down, but he might lift a finger if a sufficiently prestigious bluecheck brought it to his attention. Or at least that’s the theory.

As COVID-19 has sent human moderators home and increased platforms’ reliance on algorithms, the value of informal appeals has only increased. This should be of concern to platforms as well as users. Content moderation is a top‐​down process. Unable to draw upon democratic legitimacy, moderators have increasingly attempted to legitimize their governance by adhering to procedural values. The Santa Clara Principles, a set of commitments intended to provide users with due process endorsed by Facebook, Twitter, and Youtube, requires “meaningful appeals” and “the ability to present additional information.” If, in practice, only the loudest accounts have this ability, users’ expectations of procedural fairness will be frustrated.

Last month, @MENA_conflict, a mid‐​sized conflict studies and suburban farming account operated by a former infantry marine was banned from Twitter, apparently after being mass‐​reported by would‐​be QAnon‐​hunters, before being eventually reinstated. The account received a deluge of support from journalists and prominent users, including Jack McCain. Its operator reported that he returned to “like 2500 notifications from y’all harassing twitter to reinstate me.”

Informal appeals may have saved @MENA_Conflict in this case, but they present a broader problem. Platform responsiveness to such mass appeals undermines the legitimacy of moderation as a neutral process. They are not equally accessible, often in ways that mirror off‐​platform power structures. However, these sorts of public appeals often provide moderators with otherwise inaccessible or illegible context. Knowledge of a videographers’ portfolio, past citation of a pseudonymous expert, or the jovial nature of #bitcheswhobrunch can all help inform platform decisions. Unfortunately, from the outside, it can be difficult to know whether moderators have caved to public pressure or independently determined that their initial decision was made in error.

This is not exclusively a Twitter problem, though the platform’s default openness may make the issue more visible there. A formal mechanism for the provision of additional context would improve other platforms, as well. Ford Fischer, an independent videographer, was banned from Facebook after posting footage of armed protestors before being reinstated after appealing to his followers on Twitter. He writes:

I wish I had a formal avenue to say, “I cover — not participate in – activism including that of paramilitaries in my capacity as a journalist.” Instead, I had to resort to a viral post on Twitter.

Off‐​platform calls to action have long been a popular method of informal appeal. When Rose McGowan was locked out of her Twitter account after castigating Ben Affleck for denying knowledge of Harvey Weinstein’s predatory behavior, she took to Instagram to protest the decision. However, like other sorts of informal appeals, off‐​platform pleas turn on celebrities, placing them beyond the reach of most users. In Fischer’s case, one Facebook employee even contacted him via Twitter to tell him that Facebook staffers had submitted internal appeal requests on his behalf. These may have gotten the job done but, as Fischer explains:

My qualm here is that most people do not have the extraordinary following that I do. When I had a much smaller following, I could have just as easily lost my account without the community backing to speak out.

Platforms could formalize the ad hoc process of collaborative appeals and bring it back on‐​platform by allowing banned users to tag their followers or those familiar with their case in the appeals process. Tagged users could then choose to submit written testimony or pertinent evidence that might alter moderators’ analysis of the incident or content in question. In many cases, moderators might not need that much additional information. The knowledge that a given user is a journalist merely covering a riot or that a quote deemed hateful comes from the Declaration of Independence is not difficult to convey.

Providing a formal mechanism for collaborative appeals would reduce the perception of unfairness that accompanies platforms’ responsiveness to the informal process, potentially making such appeals more useful to moderators at the same time. It would provide a counterweight to mass bad‐​faith reporting a frequent misuse of platform user reporting tools. While moderators have limited resources to examine additional evidence, the mere fact that a given decision receives substantial pushback often indicates that it warrants further review.

User flagging is undoubtedly a useful and necessary feature that helps platforms catch violative content their moderators might otherwise miss; like other social media tools, however, it can be used irresponsibly. Often guided by quote tweets, users report non‐​violative content en masse merely because they disagree with it or dislike its author. Sometimes, as may have occurred in @MENA_Conflict’s case, this deluge of false reports is enough to spur platform action. While user flagging remains valuable despite this potential for abuse, the effects of its misuse could be curbed by the addition of collaborative appeal features. Given the difficulty of modifying the reporting feature to prevent bad faith flagging without undermining its usefulness, formalizing the emergent norm of meeting brigade with brigade seems like the best way forward.

Obviously, this would not eliminate inequalities between high and low follower accounts, but it would allow small accounts to access some aspects of the informal appeal currently enjoyed by larger ones. It might also enable moderation to be more responsive to context without forcing moderators to pick between competing sets of facts. Determining context, or the correct context in which to view some content, remains one of the most difficult aspects of content moderation. However, there are good reasons to privilege, or at least recognize, the meaning of speech as understood by its most immediate recipients or participants in the original conversation. They are its local, intended audience those most likely to appreciate its meaning.

Use of nonstandard English vernacular is often deemed offensive by overzealous algorithms, despite universal agreement as to its inoffensive connotations by the original speakers and listeners. Perhaps we could think of it as recognizing the “original public meaning” of speech, accepting that, as in the physical world, the internet’s little platoons often have their own dialects. Like a common law jury of one’s peers, a formal collaborative appeal mechanism could provide an understanding of local norms and conditions likely to be overlooked by external experts.

Users tagged in an ostensibly threatening post could easily be queried to provide additional information, for example, that the post’s author was merely quoting her friend’s lighthearted threat to kill her husband if he removed her plate. This low‐​hanging fruit – preventing moderation from treating conversations between friends as harassment – might not need a human in the loop at all. Machines may struggle to glean context, but they can accept a “not offensive” input from an apparent victim.

Features that allow users’ friends or participants in a specific conversation to offer testimony would provide benefits for large and small accounts alike. The informal appeal has emerged to solve a particular problem inherent to content moderation at scale and, inegalitarian as it may be, it cannot be wished away. However, by formalizing this redress mechanism, platforms can transform an elite privilege into a tool for everyone.

October 21, 2020 3:54PM

Property Taxes on the Ballot

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The most famous ballot question on fiscal policy is California’s Proposition 13 passed in 1978. Voters passed the constitutional change to limit property taxes statewide by a large margin, 65 percent to 35 percent.

Howard Jarvis led the drive for Proposition 13 and made the cover of Time magazine, as shown. California property taxes are generally capped at one percent of purchase price plus an annual inflation factor. The large margin for Proposition 13 passage was impressive given that only some voters are property owners while many are renters.

This year Californians will decide whether to partly scrap the property tax limit. Proposition 15 would repeal the cap for commercial and industrial properties to raise taxes by up to $12 billion a year. These properties would be assessed at market value, not purchase price.

The teacher unions are the main funders of the campaign to pass Proposition 15. But Mark Zuckerberg and his wife, Priscilla Chan, have also contributed $7.1 million. The tax‐​hike side has substantially out‐​raised the opposition side of the ballot campaign.

My intern, Hunter Brazal, helped me tally statewide votes on tax issues over the past decade from Ballotpedia. We found that voters supported the anti‐​tax side on 60 percent of income tax measures and 76 percent of sales and excise tax measures.

What about property taxes? We found 72 statewide property tax measures on the Ballotpedia list, many of which were narrow tax cuts for specific groups. Voters supported the low‐​tax side 81 percent of the time. We don’t know how complete the Ballotpedia data is, so our results can be considered a sampling of the universe of statewide tax votes.

Will Californians defend their wallets against the teacher unions? Is the fiscal conservativism that fueled the 1978 tax revolt still alive or has it waned as state politics have moved left? Polls indicate that Proposition 13 continues to be popular, but support for hiking taxes on commercial and industrial properties has grown. Californians will deliver their verdict on November 3.

For background, see this Cato study on Proposition 13 and other state budget limits.

October 21, 2020 3:51PM

Searching for Monopolies

The Justice Department announced Tuesday that it was launching an antitrust lawsuit against Google alleging that the search giant’s deals with browser and operating system developers to make Google a default search engine amounted to anticompetitive behavior. The suit bears all the hallmarks of a political stunt—an unnecessary government intervention in the online search market that has little chance of yielding any meaningful benefit to consumers.

Oddly, the suit does not target Google’s dominance in the online advertising space, which has often been the focus of critics, but Internet searches, where it seems least plausible to claim the company enjoys anything like a monopoly. Internet users have a wide variety of easily‐​accessible options for online searches: While Google is the default search engine for most browsers and mobile operating systems in the United States, users can elect to use competitors such as Yahoo, Bing, and DuckDuckGo with almost no effort, either by manually visiting those pages, or by taking a few seconds to change their default engine settings. Though Google commands the lion’s share of search traffic, it is hard to seriously claim this is because consumers lack for choices—which would normally be a precondition of claiming a company enjoys a “monopoly.”

Just as Google itself rapidly displaced many older search engines like AltaVista and AskJeeves—which had become defaults for users in the 1990s—the company would quickly lose its dominant position if most users found that competitors yielded more relevant results, just as users routinely download and install apps that provide superior functionality to those already installed on their devices. Moreover, Google’s arrangements with operating system and browser developers are not materially different from, or more “anticompetitive” than, analogous deals for prominent product placement in stores familiar from brick‐​and‐​mortar markets. Indeed, those arrangements may produce consumer benefits by subsidizing the production of software that is free to the user. Nor is it credible to claim, as DOJ does that Google has established a stranglehold on search defaults by dint of its deep pockets: Its primary rival in competitive bids to be “default search engine” is the not‐​exactly‐​penurious Microsoft.

Some relevant evidence comes from the European Union, where antitrust regulators recently forced Google to unbundle its search and browser offerings from its Android mobile operating system. Android users are now presented with a menu of search engine choices when setting up a new device, rather than defaulting to Google. The primary result has been that Google began charging mobile manufacturers to license its operating system. Google’s share of the online search market in the EU, however, has not changed measurably at all. While it would be unsurprising if, over time, the new “choice screen” eventually shaved a few percentage points off Google’s share, there is not much evidence for the view that lazy and uninformed consumers are being systematically tricked into using a search engine they would eschew if they were only compelled, rather than merely permitted, to make an active choice.

Perhaps most disturbing, there are indications that this suit may be politically motivated. Attorney General Bill Barr reportedly overrode career antitrust attorneys who did not believe the case was sufficiently strong in order to rush a complaint out the doors. Rep. Jim Jordan (R-OH) responded to the suit by declaring on Twitter that “Big Tech” was “out to get conservatives,” and the Attorney General would not let them “get away with it,” though the suit itself is not explicitly concerned with the company’s supposed political leanings. Eleven state attorneys general have joined the Justice Department suit, all of them Republican.

In short, it is impossible to divorce this action from its political context: Pundits and elected officials on the right, not least among them the current president, routinely bash Silicon Valley by alleging (on the basis of, to put it charitably, highly dubious evidence) that tech companies systematically wage a vendetta against conservatives. Now, weeks before a national election, the attorney general has taken a very public swing at one of the primary villains of this narrative, employing arguments that seem conspicuously at odds with Republicans’ traditionally far more restrained view of antitrust. If this weak suit has been rushed to court in order to punish a company that many on the right perceive as harboring a “liberal bias,” it would constitute not just witless economic policy, but an egregious abuse of power.

Disclosure: While I try to not know which individuals or companies in my policy area may also be Cato Institute donors, my understanding is that Google has supported Cato in the past, and (for all I know) may still do so. For context, less than 3 percent of Cato’s total revenue comes from corporations.

October 21, 2020 10:03AM

America’s Truck Shortage Reveals the Folly of Pandemic Protectionism

Shortages during the onset of the 2020 coronavirus pandemic caused many politicians and pundits to embrace protectionism as a means of boosting the United States’ “resilience” to economic shocks and, by extension, Americans’ access to essential goods during the next crisis. Current shortages of pickup trucks, however, show why such plans are not only ineffective but could actually make thing worse.

According to a recent CNBC report, the pandemic is causing Americans to travel across the country and pay record prices for new and used trucks (emphasis mine):

Two factors tied to the coronavirus pandemic are driving the trend. First, when the virus surged across North America in March and April, automakers shut down plants from Canada to Mexico, severely restricting the supply of new models, including full‐​size pickups.

Then, as America emerged from the initial surge of the pandemic, many people who did not own a vehicle in the past decided it was time to buy a car, truck or SUV so they could drive themselves and not have to rely on mass transportation or ride‐​sharing. The result: a run on certain types of used vehicles, like full‐​size pickups.

Tom Kontos, chief economist for KAR Global Analytics Research, who has tracked wholesale used vehicle prices for more than 20 years, calls this is the hottest market he’s ever seen.

“In the space of two months, prices went from double‐​digit declines to double‐​digit gains, and have stayed high since June,” he said. In August, KAR Global reported the average price for a full‐​size pickup hit a record high of $21,557. That’s up $5,166, or 31.5%, since February.

Adams said the surge in used truck prices is so great, some preowned models are now selling for more than a comparable brand‐​new version of that pickup.

Other recent stories back up these trends. They all show that increased demand and pandemic‐​limited production have caused a veritable pickup shortage in the United States, even as North American carmakers have resumed operations and are now running full‐​tilt.

So why, might you ask, are Americans buying only (very expensive!) pickup trucks made in North America? Well, as my colleague Dan Ikenson explained back in 2003:

Foreign‐​made pickup trucks are subject to a 25 percent import tariff, a policy heartily endorsed by U.S. producers. So a foreign truck valued at $20,000 costs the importer $25,000 before he can even clear customs. Meanwhile, domestic producers of $20,000 pickups have an artificial $5,000 cushion, enabling them to increase prices without appearing out of line.

At 25 percent, the import tariff is virtually prohibitive. In 2001, fewer than 7,000 pickups were imported from outside North America. That’s only 0.23 percent of almost 3 million purchased. Without imports, supply is smaller, choices are fewer, and domestic producers are the only game in town. It’s a veritable sellers’ market, sanctioned under official U.S. policy. And truck buyers — if you’ll pardon the pun — carry the load.

The latest data from the International Trade Commission (Figure 1 below) show that little has changed since 2001: because Canada and Mexico are the only major auto‐​making countries currently facing zero tariffs in the United States, they supplied more than 96 percent of all imported pickup trucks in 2019 (approximately 625,000 units, which was about 30 percent of all trucks sold in the United States in 2019). U.S.-based manufacturers supplied the rest, save a handful from Spain. By contrast, Figure 2 shows that Canada and Mexico shipped only about 39 percent of all imported cars, SUVs, minivans — which face a maximum 2.5% tariff (and are duty‐​free for NAFTA and other U.S. free trade agreement partners) — over the same period (3.66 million units, or 32 percent of domestic sales), with U.S. and other foreign producers splitting up the rest of the market:

Yet, even with high tariffs, the U.S. truck market remains severely undersupplied, and prices are predictably surging. In fact, this old‐​school economic nationalism appears to be amplifying the problem: U.S. import data through August of 2020 show that imports of pickups (Figure 3) and non‐​pickups (Figure 4) from Canada and Mexico are down around 27.4 percent and 31.7 percent, respectively, compared to the same period last year, while total imports for each type of vehicle declined by about 27 percent.

The total decline in truck imports this year unsurprisingly parallels the decline in imports from Canada and Mexico because the 25 percent tariffs have effectively blocked other non‐​NAFTA sources (which actually make some very cool trucks) from serving the high‐​demand U.S. market. By contrast, significant volumes of non‐​NAFTA imports of cars, SUVs and minivans from Asia (e.g., Vietnam, China and Korea) and Europe (e.g., Sweden, Hungary, Belgium and Austria) have — undoubtedly aided by lower tariffs — made up for some of the pandemic‐​induced declines in the same imports from Canada and Mexico over the same period.

Put another way, if Canada and Mexico were — like they are with pickups — our only major foreign suppliers of non‐​truck vehicles and thus caused the same 32 percent decline in total non‐​truck imports that we saw in NAFTA non‐​truck imports this year, the U.S. market would have about 300,000 fewer vehicles (about 4.7 percent of 6.3 million imported units). Thus, low tariffs and supply diversity are likely helping American car consumers cope with severe and unexpected changes to supply and demand — and they should continue to help as countries recover at varying speeds in the coming months.

Surely, the math here is more complicated that my back‐​of‐​the‐​napkin doodle (and it’ll be good to revisit the data next year), but this real‐​world example nevertheless shows the folly of kneejerk plans to improve Americans’ access to essential goods by restricting the international supply thereof.

For more on why the COVID-19 pandemic doesn’t justify protectionism, see this recent paper from Cato colleagues Ikenson and Simon Lester.

October 20, 2020 9:55AM

A New Threat to Online Speech?

There seems to be a growing consensus among legal experts and free speech activists that international human rights law (IHR) should provide the framework for social media’s content moderation. In a new essay titled “But Facebook’s Not a Country,” Dangerous Speech Project founder Susan Benesch joins this growing chorus.

What is IHR? It is a modern phenomena. The Universal Declaration of Human Rights (UDHR) is considered its foundational document. It was adopted by the UN General Assembly in 1948. It has provided the basis for a set of treaties, covenants and conventions signed by UN member states, though governments often exempt themselves from specific obligations. They are intended to promote human rights across borders and create a framework of rules, norms, and standards accepted in relations between sovereign states, free and unfree, democratic and authoritarian.

In our context, the relevant international treaties are the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Covenant on Civil and Political Rights (ICCPR), though I will focus mainly on the ICERD. Benesch acknowledges that the ICERD’s proscriptions “seem[s] considerably broader than the ICCPR’s hate speech provisions” because it requires “the prohibition of different, and likely much more, speech.”

Indeed, the ICERD’s Article 4 calls for the criminalization of “(D)issemination of ideas based on racial superiority or hatred, incitement to racial discrimination.) (…) including the financing thereof…” The section also requires the prohibition of “organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and (…) participation in such organizations or activities.” This ban would probably include the selling of Hitler’s Mein Kampf and a ban on organizations like the Nation of Islam or the Islamist Hizb‐​ut‐​Tahrir.

Benesch is not overly concerned about this threat to speech. She concludes that the ICCPR and the ICERD have been reconciled because the UN body charged with interpreting the ICERD “seems to have deferred to the ICCPR by accepting the principles of legality, proportionality, and necessity.” This three‐​prong test is embedded in Article 19 of the ICCPR that says that legitimate restrictions on speech need to be “provided by law and necessary.” Benesch posits that this three‐​prong test will doom most speech restrictions required by the ICERD.

Benesch doesn’t explain her reasons for claiming that the ICCPR and the ICERD have been reconciled, but the claim is probably based on General Recommendation No. 35 titled Combating Racist Hate Speech and adopted by the UN Committee on the Elimination of Racial Discrimination in September 2013. The Committee is charged with authoritative interpretations of the ICERD. It says that “the application of criminal sanctions should be governed by the principles of legality, proportionality, and necessity.”

However, the Committee in the same decision also recommends that states criminalize:

Dissemination of ideas based on racial or ethnic superiority or hatred; expressions of insults, ridicule or slander of persons or groups or justification of hatred or contempt when it clearly amounts to incitement to hatred or discrimination; participation in organizations and activities which promote and incite racial discrimination.


The Committee even recommends that “denials or attempts to justify crimes of genocide and crimes against humanity” if they constitute incitement to racial hatred, should be criminalized. At the same time, the Committee stresses that the expression of opinions about historical facts should not be prohibited.

The propositions stated by the Committee in its General recommendation No. 35 seem irreconcilable. On the one hand, they call for applying the test of legality, proportionality, and necessity in a way supporters of IHR would endorse as protecting free speech. On the other they call for speech criminalization that would often fail the three‐​prong test of legality, proportionality, and necessity.

UN case law sets out authoritative interpretations of the ICERD. That case law, contrary to Benesch’s claim, indicates that the principles of legality, proportionality, and necessity do not prevent the body charged with interpreting the ICERD from issuing decisions that go further than the hate speech provisions of most liberal democracies.

Take the case against German politician and author Thilo Sarrazin. In 2009, Sarrazin, a former Social Democratic finance senator for the city‐​state of Berlin, lashed out at Muslim immigrants in an interview with the magazine Lettre International.

Sarrazin said the majority were living off social benefits and did not contribute to the economy beyond the fruit and vegetables trade. He complained about high birth rates among Muslim immigrants and called for a general ban on immigration “except for highly qualified individuals.” Sarrazin’s interview was reported to the police, but the prosecutor refused to charge him for violation of the country’s law against ”hate speech.” The petitioner then complained to the U.N. Committee on the Elimination of Racial Discrimination.

In 2013 the committee reprimanded Germany for not effectively investigating Sarrazin. They concluded that Sarrazin’s statements “amounted to dissemination of ideas based upon racial superiority or hatred and contained elements of incitement to racial discrimination in accordance with article 4 (a), of the Convention.” By not punishing Sarrazin, the German state had violated international human rights law. In spite of the fact that Germany has the toughest laws against ”hate speech” in Western Europe, the committee called on Berlin to impose even stricter limits on speech in order to fulfill Germany’s obligations under article 4 of the Convention.

In this case, the principles of legality, proportionality, and necessity did not constrain an authoritative UN interpretation of the ICERD.

Of course, none of this means I endorse Thilo Sarrazin’s opinions, but that’s not the point. It is about defining the limits of legitimate public debate, especially on contested political issues like immigration. In a liberal democracy, speech should be free up to incitement to violence or to other criminal activity, i.e. the famous “emergency principle”. IHR justifies many more restrictions on speech.

Another example involves the Danish politician Pia Kjaersgaard who is a member of parliament and former leader of the Danish People’s Party. In 2003, in a letter to the editor of the newspaper Kristeligt Dagblad Kjaersgaard called on the government to ban female circumcision. She complained that the Danish‐​Somali Association had been consulted about the forthcoming law. She wrote: “To me this corresponds to asking the association of pedophiles whether they have any objections against child sex or asking rapists whether they have any objections to a tougher sentence for rape.” A petitioner reported Kjaersgaard to the police for having compared individuals of Somali origin to pedophiles and rapists. The Danish public prosecutor refused to press charges.

The petitioner complained to the U.N. Committee on the Elimination of Racial Discrimination. In 2006, the Committee concluded that Denmark had violated Article 4 of the ICERD by not prosecuting Kjaersgaard for hate speech. Once again, the three‐​prong test embedded in international human rights law didn’t protect speech that would be considered legal in democracies with hate speech laws.

If one adds the UN Human Rights Council’s Universal Periodic Reviews (UPR) of member states as authoritative interpreters of the ICERD, then it becomes clear that the support for further restrictions on hate speech is widespread within the UN‐​system.

The UPRs were introduced in 2006. They are conducted by a working group which consists of the 47 member states of the Council. Information for the reviews is provided by the states, human rights experts and groups, NGO’s, and the U.N. treaty bodies like the Committee on the Elimination of Racial Discrimination. The reviews assess the extent to which states respect their human rights obligations set out in the human rights treaties like the ICERD, and they contain recommendations for improvement. Usually, the UPRs express little or no concern with freedom of expression. Recommendations from the Committee on the Elimination of Racial Discrimination, for example, recently called for tougher and broader hate speech laws in Denmark and the U.K.

During Denmark’s Universal Periodic Review in 2016 the U.N. Committee on the Elimination of Racial Discrimination made specific recommendations to criminalize more speech. For example:

”The Committee on the Elimination of Racial Discrimination encouraged Denmark to amend its Criminal Code to bring it fully into line with the provisions of ICERD.” And the U.N. committee said, ”(i)t was concerned about the low number of court cases on hate crimes and the lack of an explicit prohibition in the Criminal Code of organizations that promoted racial discrimination.”

And the UPR for the United Kingdom of Britain and Northern Ireland (2017) recommends among other things, that the U.K. “incorporate the Convention on the Elimination of All Forms of Racism into the domestic law to ensure direct and full application of the principles and provisions of the Convention.” This is a call for broader controls on speech.

Benesch and other supporters of IHR point to the so‐​called Rabat Plan of Action as an insurance policy against overly broad interpretations of the hate speech provisions of IHR. The Rabat Plan of Action was adopted by the U.N. High Commissioner for Human Rights in 2013. Its goal is to draw the proper line between freedom of expression and illegal “hate speech”. In order to narrow the scope of legitimate bans of ”hate speech”, the plan defines a six‐​part threshold test for forms of speech that are prohibited under criminal law. The test takes into consideration: the context of incitement to hatred, the speaker, intent, content, extent of the speech, and likelihood of causing harm. According to the plan, any limitations to freedom of speech “must remain within strictly defined parameters flowing from the international human rights instruments, in particular the International Covenant on Civil and Political Rights and the International Convention on the Elimination of Racial Discrimination.” The plan reiterates that restrictions need to be assessed by the test of legality, proportionality, and necessity laid down in Article 19 of the ICCPR.

I agree with Benesch and others that this is a welcome development, but I am less sure that the consequences are as positive for free speech as the supporters of IHR claim. The Sarrazin case described above supports my doubts. It was decided after the adoption of the Rabat Plan of Action. In any case, it won’t meet a First Amendment standard of emergency and viewpoint neutrality. For a proper evaluation of the three‐​prong test of legality, proportionality, and necessity it would be important to find out if the Committee on the Elimination of Racial Discrimination is ignoring the test in its decisions or applying it in a way that is different from the understanding of the proponents of IHR who favors free speech.

In spite of the progress made by the Rabat Plan of Action to define and narrow the concept of hate speech, we should not ignore the inherent instability, vagueness, and arbitrariness of the hate speech provisions of IHR. Having gained new ways of speaking on social media, we should think hard before adopting IHR as a limit on our newly won powers.

October 19, 2020 3:48PM

Sales and Excise Taxes on the Ballot

There have been 20 questions to increase, cut, or limit income taxes on statewide ballots over the past decade, as compiled by Ballotpedia. I examined those ballots here and found that voters favored the small‐​government side 60 percent of the time.

What about sales and excise taxes? In November, Oregon voters will decide on Measure 108, which would increase taxes on cigarettes by $2 per pack. Governor Kate Brown—who received an “F” on this year’s Cato fiscal report—has pushed for the increase.

Cigarettes are a demonized product and the pro‐​tax campaign in Oregon is far out‐​spending the anti‐​tax side, according to Ballotpedia. Nonetheless, voters in many states over the years have rejected cigarette tax increases. In 2007, Oregon voters defeated 59 percent to 41 percent Measure 50 to raise cigarette taxes by 84.5 cents per pack.

In Colorado, voters this November will decide on Proposition EE, which would phase in a cigarette tax increase of $1.80 per pack. The Colorado and Oregon proposals would also increase taxes on vape products.

For the 2010 to 2019 period, Cato intern Hunter Brazal found 55 sales and excise tax questions on statewide ballots, of which 37 were for tax increases and 18 for tax cuts. The questions regarded general sales taxes, tobacco taxes, alcohol taxes, and carbon taxes.

Of the 55 questions, voters took the small‐​government or low‐​tax side 42 times. That 76 percent support for the low‐​tax side was more than the 60 percent for income tax questions.

With both sales and income taxes, the small‐​government side wins most of the time. The bad news is that two‐​thirds of sales and income tax questions on ballots are for increases, not cuts.

Here is a sampling of the 55 statewide votes on sales and excise taxes, with vote percentages from Ballotpedia:

Wins for Smaller Government

  • In 2018, South Dakota Measure 25 would increase cigarette taxes by $1 per pack to fund education. Failed 44.9 to 55.1.
  • In 2018, Colorado Proposition 110 would increase the general sales tax rate from 2.9 percent to 3.52 percent to fund transportation. Failed 40.6 to 59.4.
  • In 2018, Missouri Proposition D would raise the gas tax by 10 cents per gallon to fund transportation. Failed 46.4 to 53.6.
  • In 2018, Washington Initiative 1631 would impose a fee or tax on the sale or use of fuels based on the carbon content with the funds directed to environmental and community programs. Failed 43.4 to 56.6.
  • In 2018, Montana I-185 would increase cigarette taxes by $2 per pack to fund Medicaid. Failed 47.3 to 52.7.
  • In 2016, Washington Initiative 732 would impose a fee or tax on the sale or use of fuels based on the carbon content with the revenue increase offset by cuts to sales and business taxes. Failed 40.8 to 59.2.
  • In 2016, Colorado Amendment 72 would increase taxes on cigarettes by $1.75 per pack to fund health programs. Failed 46.9 to 53.1.
  • In 2016, North Dakota Measure 4 would raise cigarette taxes by $1.76 per pack to fund veterans and health care. Failed 38.3 to 61.7.
  • In 2016, Missouri Amendment 3 would raise cigarette taxes by 60 cents per pack. Failed 40.4 to 59.6. The ballot in 2016 also included Missouri Proposition A to raise cigarette taxes by 23 cents per pack. Failed 44.8 to 55.2.
  • In 2016, Oklahoma Question 779 would increase the sales tax rate from 4.5 percent to 5.5 percent to fund education. Failed 40.6 to 59.4.
  • In 2015, Michigan Proposal 1 would raise gas taxes and sales taxes to fund transportation. Failed 19.9 to 80.1. Despite that overwhelming rejection, the governor and legislature pushed through a large gas tax and vehicle fee increase for transportation later the same year.
  • In 2014, Missouri Amendment 7 would temporarily raise the general sales tax rate by 0.75 percentage points to fund transportation. Failed 40.8 to 59.2.
  • In 2012, Arizona Proposition 204 would renew a 1 percentage point sales tax increase for education. Failed 36.2 to 63.8.
  • In 2012, South Dakota Measure 15 would increase the general sales tax rate from 4 percent to 5 percent to fund education and health care. Failed 43.3 to 56.7.
  • In 2012, California Proposition 29 would increase cigarette taxes by $1 per pack to fund cancer research and other activities. Failed 49.8 to 50.2.
  • In 2010, Massachusetts Question 1 would remove the 6.25 percent sales tax on alcohol sold in liquor stores. Passed 52 to 48.
  • In 2010, Washington Initiative 1107 would end sales taxes on candy and some beverages. Passed 60.4 to 39.6. 

Wins for Bigger Government

  • In 2019, Washington Advisory Vote 23 would retain a sales tax on vape products. Passed 66.9 to 33.1.
  • In 2018, Oregon Measure 103 would ban taxes on groceries. Failed 42.7 to 57.3.
  • In 2016, California Proposition 56 would increase cigarette taxes by $2 per pack. Passed 64.4 to 35.6.
  • In 2012, Arkansas Issue 1 would temporarily increase the sales tax rate by 0.5 percentage points to fund transportation. Passed 58.2 to 41.8.
  • In 2010, Massachusetts Question 3 would cut the general sales tax rate from 6.25 percent to 3 percent. Failed 43 to 57.
  • In 2010, Arizona Proposition 100 would temporarily raise the general sales tax rate from 5.6 percent to 6.6 percent. Passed 64.3 to 35.7.

I discuss some of these ballot questions in current and past issues of Cato’s Fiscal Report Card on America’s Governors.