January 19, 2021 10:16AM

New Legislation Casts Doubt on Future of Administrative Jones Act Waivers

Earlier this month Congress passed the National Defense Authorization Act (NDAA)—and pro‐Jones Act special interests are elated. Regular Americans, however, may be less enthused. Buried deep within the bill—on page 1010 to be exact—is language that significantly pares back the executive branch’s ability to temporarily waive the 100‐​year‐​old law restricting domestic waterborne transport to vessels that are U.S.-registered, U.S.-built and mostly U.S.-owned and crewed.

Such waivers are perhaps best known for their use in recent decades to speed relief following natural disasters. After Puerto Rico was hit by Hurricane Maria in 2017, for example, the Trump administration waived the law for ten days so that foreign ships could transport supplies from U.S. ports to the beleaguered island. Other uses of this waiver authority include permitting non‐​Jones Act vessels to deliver petroleum products in the wake of Hurricanes Katrina (2005) and Sandy (2013). Expanding the universe of vessels allowed to deliver supplies not only saves money but, more importantly, time. Vessels closest to the disaster scene and best prepared to quickly provide relief are not always those that comply with the Jones Act’s restrictions.

But the use of administrative waivers in such disaster scenarios has now been cast in serious doubt.

Rather than allowing for Jones Act waivers deemed “necessary in the interest of national defense” as was previously the case, the NDAA limits such suspensions of the law to those viewed as “necessary in the interest of national defense to address an immediate adverse effect on military operations” (emphasis mine). The provision of assistance to Americans imperiled by natural disaster seems unlikely to qualify. In fact, it’s not clear that the vast majority of administrative waivers issued over the last 20 years would have met this new standard.

That Jones Act supporters made the limiting of such waivers a legislative priority isn’t surprising. While most Americans were searching for ways to help Puerto Rico in 2017 following Hurricane Maria, backers of the law hastily arranged a Capitol Hill “listening session” at which industry insiders and members of Congress implored President Trump not to waive the Jones Act. And in 2019 when news surfaced that President Trump was considering a long‐​term Jones Act waiver to provide Americans expanded access to domestically produced liquefied natural gas (LNG), the law’s supporters quickly mobilized to halt the measure.

Such vociferous opposition is curious given the limited or non‐​existent downside of these temporary and infrequent waivers for the domestic maritime industry. In the aftermath of Hurricane Maria, for example, U.S. vessels experienced no shortage of demand for the transportation of goods to Puerto Rico, while the proposed LNG waiver would have had no impact at all given that bulk transport of the fuel is not a service offered by Jones Act‐​qualified ships.

Nevertheless, allowing Americans access to foreign ships for domestic transport—even in emergency situations such as natural disasters—is something Jones Act supporters apparently cannot abide. This may be explained by the fact that waivers provide transparency into the cost savings and possibilities that could be unlocked through the domestic use of foreign ships. And that, in the minds of Jones Act supporters, appears intolerable.

The U.S. maritime industry may count the NDAA as a legislative win, but for the rest of the country it’s a very clear loss.

January 19, 2021 9:49AM

Give Yourself a Break Today? Donald Trump and the Self‐​Pardon

At least since June 2018, when President Trump tweeted about his “absolute right to PARDON myself,” it’s been a live possibility that our 45th president will do what no president—even desperate, drunk Richard Nixon in his final days—was crazy enough to do. And as the final hours of the Trump presidency tick by, we’re coming down to the wire. 

Will he do it?

Mercy, mercy me

Word is that Trump is set to issue anywhere from 60 to 100 clemency actions today, to a group that includes “white collar criminals, high‐​profile rappers and others but—as of now—is not expected to include Trump himself.”

They’d never admit it, but my suspicion is that a lot of law professors will be secretly disappointed. For a guy who’s not sure how many articles there are in the Constitution, Donald Trump is like a walking con‐​law exam, throwing out gonzo hypotheticals and cases of first impression like it’s his job. Still, it’s probably for the best if he doesn’t attempt a self‐​pardon.

The case that such a power exists is pretty weak, after all. For some reason, though, that doesn’t stop unitary executive fetishists from insisting it’s (harumph) VERY CLEAR. Their arguments tend to gloss over the textual and historical evidence to the contrary, and boil down to: hey, it doesn’t explicitly say you can’t!

But as Michigan State University law prof Brian Kalt, author of the definitive case against presidential self‐​pardons, suggests, the pardon power “is limited by the meaning of the word ‘pardon’ itself.” A pardon is inherently bilateral: it implies a donor and a recipient. “It makes no sense to talk of donating a kidney or $100 to yourself.” And, as I discuss here, the historical evidence that the Framers even recognized the possibility is thin as well.

In any event, if Trump doesn’t try to do himself the favor on his last day, it obviously won’t be because constitutional scruples stayed his hand. Instead, it’ll be the practical reasons that counsel against it. Here’s one I hadn’t thought of until recently: just how would the clemency grant be phrased? As former DOJ pardon attorney Kristin Hucek points out in Politico, such an act of constitutional solipsism would have to be “very strangely worded … he would have to refer to himself in the third person and then sign it.” The inherent awkwardness that entails might not deter the president for whom “shamelessness is a superpower.” But the possibility that prosecutors would react to it like a bull to a red cape just might.

I’ve long thought that the only legally bulletproof way to accomplish a self‐​pardon was to get your veep to do the dirty work for you. It’s a path suggested by the otherwise unconvincing August 5, 1974 Office of Legal Counsel memo drafted in Nixon’s final days:

A different approach to the pardoning problem could be taken under Section 3 of the Twenty‐​Fifth Amendment. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office.

How this would work is: Trump would notify Congress under Section 3 that he was temporarily “unable to discharge the powers and duties of his office,” tag Mike Pence in as “Acting President,” then Pence pardons him without any of the complications accompanying an attempted self‐​pardon.

Unfortunately for Trump, even the otherwise‐​reliably servile Mike Pence has his limits, something the president himself has apparently begun to recognize. According to CNN, Trump has lately bristled at Nixon comparisons:

He told one adviser during an expletive‐​laden conversation recently never to bring up the ex‐​president ever again. During the passing mention of resigning this week, Trump told people he couldn’t count on Vice President Mike Pence to pardon him like Gerald Ford did Nixon, anyway.

Right: if what Trump really wanted was for Pence to pardon him via the 25th Amendment switcheroo, it’s just possible that it was a bad idea for the president to tweet up a lynch mob that forced the veep, his wife, and his daughter to flee the Senate chamber and hide with only a few Secret Service agents between the Pence family and said mob, some 100 feet away.

I swear, sometimes you get the sense that Donald Trump was never playing 5D chess.

January 17, 2021 1:45PM

The Good and Bad of Biden’s Plan to Legalize Illegal Immigrants

Recent news reports suggest that Joe Biden will propose a series of immigration bills for Congress to consider early in his administration. The bill with the most details reported so far would legalize the roughly 11 million illegal immigrants currently living in the United States. According to the quick news summaries of the possible bill, it is a simple legalization that would grant lawful status, the ability to earn a green card in five years, and citizenship in an additional three to virtually all illegal immigrants currently living in the United States. That is a vastly simpler and cheaper way for illegal immigrants to legalize compared to the expensive and complex schemes of earlier failed reform efforts.

The Good

The good part about this bill is that mass legalization would be very positive for the United States. The United States would benefit from quickly legalizing illegal immigrants who aren’t real criminals and putting them on a path toward permanent residency and citizenship. In the short run, many opponents of immigration will be upset, but the vast reduction in the population of illegal immigrants and their successful assimilation will reduce social perceptions of chaos and increase the perception that the government has immigration firmly under control, all long term benefits for the immigration debate and the country as a whole.

Further, the usual complaints about immigration liberalization would not apply to legalizing illegal immigrants because they are already here. The lower crime rates of illegal immigrants relative to native‐​born Americans and possibly compared to legal immigrants means that we’re not going to see a surge in crime from legalization and may even see a drop in crime as a result. Also, illegal immigrants are already working in the United States with generally higher labor force participation rates than other groups, so legalizing them won’t increase wage competition with American workers because they are already here working.

Furthermore, wages would increase for illegal immigrants after they’re legalized. Work by my former colleague Andrew Forrester and I found that illegal immigrants initially faced a hefty wage penalty of about 11.3 percent relative to legal immigrants during the 1995–2017 period. Although illegal immigrant wages did converge with legal immigrants during that time, and more recent illegal immigrants entered with lower wages penalty than those that came in the past, legalization would hasten illegal immigrant and overall immigrant wage convergence with native‐​born Americans.

The bigger potential effects could be on the government’s finances. Illegal immigrants have limited access to few means‐​tested welfare programs but they already have access to public education. Legalization will increase their access to these programs once they naturalize, but it won’t increase their access to the most expensive outlays like public education. At the same time, their wages will also increase due to legalization and their U.S.-born children will have much higher levels of education and, thus, will likely pay more in taxes than receive in benefits. Therefore, it’s unclear what the net‐​fiscal impact would be and it depends on the time‐​horizon for analyzing those effects.

The good political part of this bill is that Democrats are finally playing hardball on immigration as they will not be presenting legislation already laden with compromised positions. Instead, they will start with a cleaner and simpler bill and then ask what other senators and congressmen need to get on board, which will no doubt be a lot of expensive security signaling along the border. Also, Democrats have finally learned that any pro‐​immigration piece of legislation that they introduce will immediately be called “amnesty” by its opponents, so there isn’t a political downside to introducing a real amnesty. After all, what are proponents going to say? “This time it’s a REAL amnesty” doesn’t carry the same weight.

The Bad

The policy downside of this bill is huge because it has no chance of becoming law in its current reported form. Moderate Democrats like Senators Joe Manchin and Kyrsten Sinema aren’t likely to support it, to say nothing of the ten Republican senators necessary to pass it. A more moderate legalization is obviously better than no legalization at all. One lesson I’ve learned over the years is that we should be less strategic when thinking about immigration reform – if there is an opportunity to legalize some people or expand legal immigration then pro‐​immigration politicians must seize it at that moment rather than trying to think of how doing so makes passing other immigration reforms more difficult. Nobody knows the answer to the long term political consequences, they never have, and we should all stop pretending that we do and instead support policies that we know will be good when we can.

If the hypothesized Biden bill fails then it would also open up other possibilities. Politically, it would be a marker bill that shows where the Democratic Party stands and would be a starting point for future negotiations. That probably doesn’t have much value, but that’s the conventional strategic wisdom that I just told you to disregard in the previous paragraph.

More important is that a failure to legalize illegal immigrants in Congress will give more of a political justification for a Biden administration to take sweeping executive actions to legalize all illegal immigrants by granting them Temporary Protected Status (TPS). Under current statute, a president has the power to grant TPS to any immigrant in the United States if their home country faces a disaster.

Importantly, the statute explicitly mentions “epidemic” as such a disaster, and since all countries are suffering from COVID-19, then‐​President Biden could grant all illegal immigrants TPS. Immigration attorney and former deputy assistant attorney general for the Office of Immigration Litigation at the U.S. Department of Justice’s civil division Leon Fresco thinks this will be legally sound, and he’s probably correct. A universal grant of TPS could be undone by a future president but, at minimum, it would allow some current illegal immigrants to adjust their status to a green card and thus shrink the pool of illegal immigrants.

The major structural legal change to the immigration system under Trump is that the President now has the power to stop all legal immigration from abroad for any reason. The failure of the immigration legalization bill in Congress would allow Biden to test the power of the president to at least legalize illegal immigrants using broad existing statutory authority. Beyond that, there are many smaller actions that Biden could follow that will reduce the illegal immigrant population as detailed here by my colleague David Bier. No president should be making policy by executive decree but no president is likely to give up the power that Congress unwisely granted it, so you should expect many executive and agency actions from Biden here.

Other Legalization Ideas that Congress Should Consider

There are many ways to legalize illegal immigrants. One reform that should be included in the bill regardless of anything else is a rolling legalization that would allow long‐​term illegal immigrant residents and lawful residents without green cards to be granted green cards on an ongoing basis without an application cutoff date and based entirely on how long they’ve resided here without committing any crimes. We proposed just such a reform here based on a portion of British immigration law. This will reduce the potential for the illegal immigrant population to grow in the future.

Another way is to create a tiered legalization system that lets illegal immigrants choose whether they want to be a temporary resident, a quasi‐​permanent resident, or be on a pathway toward citizenship. The less‐​permanent means to reside here should be easier to acquire while the path toward citizenship should be harder. As evidenced by the Reagan amnesty, only 41 percent of the illegal immigrants who got a green card decided to naturalize. There’s no reason to make most current illegal immigrants who don’t want citizenship to be on that track. This proposal is less positive than legalizing all non‐​violent illegal immigrants but will likely be closer to what eventually becomes law.

Beyond legalizing illegal immigrants, the best way to guarantee that the reduction in illegal immigration that an amnesty would accomplish won’t be undone by future waves of illegal immigration is to increase lawful immigration. There’s little evidence that amnesties attract illegal immigrants. The overwhelming evidence is that expanding legal immigration reduces illegal immigration. From 2000–2018, a 1 percent increase in the number of H-2 visas for Mexicans is associated with a 1.04 percent decline in the number of Mexican illegal immigrants apprehended by Border Patrol – a finding that is statistically significant at the 1 percent level. Even nativists agree that legal immigration decreases illegal immigration. Channeling potential illegal immigrants into the legal immigration system will do the most to reduce illegal immigrant inflows in the future that will guarantee that the stock of illegal immigrants doesn’t grow.

The Biden administration has a lot of work ahead of it to undo the large number of immigration executive actions implemented by the Trump administration. Much of that work won’t earn headlines but it will be important for creating a better immigration system. On top of that, it’s heartening to see the Biden administration getting ready to hit the ground running even if their first bill has virtually no chance of becoming law as it is currently envisioned.

January 16, 2021 10:54AM

A Small but Certain Step Toward Removing the “X” Waiver

On January 14, the U.S. Department of Health and Human Services issued new, relaxed guidelines for physicians wishing to prescribe buprenorphine to their patients with opioid use disorder. While the so‐​called “X” waiver required of prescribers remains, the new guidelines permit physicians (not nurse practitioners or physician assistants) to prescribe buprenorphine without the waiver. They may only prescribe to patients located within their own state and they may have no more than 30 opioid use disorder patients on buprenorphine at any time.

Buprenorphine is a synthetic opioid that was developed to treat pain. It is only a partial opioid agonist, and therefore is less prone to suppress the respiratory mechanism in high doses. Since the early part of this century, it has been used for Medication Assisted Treatment (MAT) for opioid use disorder. Practitioners have been allowed to prescribe and dispense buprenorphine to their patients and follow them as outpatients in their office. Unfortunately, onerous federal regulations apply.

Under the Drug Addiction Treatment Act of 2000, practitioners who wish to treat substance use disorder with buprenorphine are required to obtain an “X waiver.” Providers must take an 8‐​hour course in order to have the ”X” added to their Drug Enforcement Administration narcotics prescribing license. There are also strict limits on how many patients a practitioner can treat at any given time, as well as restrictions on nurse practitioners or physician assistants wishing to obtain the X waiver.

These have combined to create an acute lack of buprenorphine MAT providers. According to the Substance Abuse and Mental Health Services Administration, less than 7 percent of practitioners have jumped through the hoops and obtained X waivers. The shortage is particularly severe in rural areas. Nationally, only 1 in 9 patients with opioid use disorder are able to obtain buprenorphine MAT. This has fueled a black market for buprenorphine, where many with opioid dependency or addiction use the drug—which is a poor substitute for the “high” they get from their opioid of choice—to self‐​medicate against withdrawal symptoms.

For this reason, health care practitioners interested in treating opioid use disorder, as well as other harm reduction advocates, have called for ending the requirement of an X waiver to use buprenorphine for MAT. In France roughly one‐​fifth of general practitioners treat people with substance use disorder in their offices without any further licensing or education requirements. It has contributed to a dramatic reduction in France’s overdose death rate.

In January 2020, the National Academy of Science, Engineering, and Medicine (NASEM) joined the chorus calling to end the “X” waiver.

Methadone is another synthetic opioid that has been used for MAT since the late 1960s. Unfortunately, in the U.S., methadone can only be used for MAT in DEA‐​regulated methadone clinics, and the patients must receive and consume the methadone in the presence of clinic staff. In several other developed countries, such as Canada, the U.K., and France, patients are prescribed and dispensed methadone without this requirement. Naltrexone, an opioid blocker sometimes administered in depot injections that last a month, has also been used for MAT.

Recent research found MAT with either methadone or buprenorphine to be the only effective treatments associated with reduced overdoses and overdose deaths out of 6 different treatment pathways studied, including a pathway using naltrexone.

The relaxation of the MAT regulations for buprenorphine is a step in the right direction. But limiting the new rule to physicians and restricting their number of patients to 30 doesn’t go far enough. Interviewed by MedPage Today, Assistant Secretary of HHS Admiral Brett Giroir, MD said:

[W]e anticipate that this is going to be primary care providers who may be in rural areas that may treat 5 or 10 people within their practice with this. If they’re going to get into the business of 40 or 50 or 80 or 100, right now we think they should go through the X waiver process with all the controls on that, but this is a first step that we’ll evaluate.

Dr. Nora Volkow, Director of the National Institute on Drug Abuse, told MedPage Today:

This is a compromise. We’re changing a practice, and by doing it in a conservative way, we can ensure that we’re not producing harm by practices of things that we may not know. Initially the X waiver was also starting with 30, and I assume that that’s because there was experience with that; that made a reasonable, justifiable number.

There was bipartisan support in the last Congress for legislation that would eliminate the X waiver requirement for health care practitioners prescribing buprenorphine for MAT. Hopefully the new Congress and the incoming Biden administration will pick up where their predecessors left off so that people with opioid use disorder can get the help they need.

January 15, 2021 5:15PM

Taking Stock of America’s Public Schooling Battles

Battle Map 2021

It is probably fair to say that Americans are highly polarized right now. Public schooling is likely a reflection of, and contributor to, that division. A reflection, because political control of schools is likely to replicate the divisions and animosities of the electorate. A cause, because public schooling requires people with diverse views and backgrounds to engage in political combat to determine whose values, views on history, and more, will be taught.

Cato’s Public Schooling Battle Map catalogues values and identity‐​based conflicts – highly personal battlegrounds versus, say, fights over school budgets – in public schools. We started documenting such conflicts in the 2005-06 school year, but it was a few years later that we started regular, consistent collection and launched the Map. What follows is a basic summary of what the Map contains.

Note that the Map almost certainly under counts conflicts, perhaps significantly. Entries are only obtained from searches of media reports. That means the Map does not include (1) any battles that generate media reports we do not see, (2) battles that occur but receive no media coverage, and (3) people who feel aggrieved by school policies or curricula but do not challenge them in open forums. Also, the years reflect when a conflict began. Years before 2006 with very few battles contain only conflicts we discovered in later years but that originated in those years.

Battle Types

Battles are divided into nine types, with all involving sides that have reasonable, yet opposed, concerns. Note that many battles could fit under several categories – we choose the one that seems most central. For instance, a battle over a valedictorian mentioning God in a graduation speech could fall under “freedom of expression” or “religion,” but would typically be classified under “religion” because it is the religious nature of the expression that is at the heart of the conflict.

  1. Freedom of expression: Conflicts typically pitting the speech rights of students against schools’ need to maintain order and create coherent cultures
  2. Religion: Conflicts that pit explicitly religious values or expressions against school policies that are often aimed at remaining religiously neutral
  3. Curriculum: Conflicts over what is taught based on disagreements about propriety or accuracy. These can include conflicts over morally controversial topics such as sex education if the objections are not explicitly religious or moral, such as age inappropriateness
  4. Reading Material: Conflicts over books that are present in school libraries, on reading lists, or assigned for classes
  5. Race/​Ethnicity: Conflicts over the ability of people of different races or ethnicities to control their own schools or obtain instruction or treatment tailored to their group. Does not include accusations of racism or unequal treatment unless schools maintain that they have the disputed policies for arguably laudable reasons, such as remaining colorblind
  6. Moral Values: Conflicts over what is “right” and “wrong” without an explicit religious connection, such as over corporal punishment or condom distribution
  7. Gender Equity: Conflicts over the treatment of students by gender, including debates about proper attire for girls, and bathroom access policies for transgender students
  8. Sexuality: Conflicts specifically about sexual behavior or orientation
  9. Human Origins: Conflicts over the teaching of how life originated, and how it reached its current form. Typically involve evolution and creationism or intelligent design theory

Total Battles

2,406

By Type

Public schooling battles by type

By Year

Public schooling battles by year

By State

Public schooling battles by state

Total Districts with Battles

1,205

State‐​level Battles

375

Summary

Whether values and identity‐​based conflict in public schooling has been increasing or decreasing is unclear. Many factors play into what the Map contains, including COVID-19 dominating education policy debates in 2020, and changing collection intensity after the Map’s early years. But one thing is clear: public schooling does not simply bring diverse people together and make them a harmonious whole. It is the arena – and quite possibly the cause – of much social conflict.

January 15, 2021 1:56PM

Online Extremism to Dominate Section 230 and Encryption Debates

Storming of the Capitol

Last week’s attack on the Capitol removed any doubts that the regulation of social media will continue to be a Congressional priority after the Trump administration ends. The president and his allies have argued for legislative changes to address alleged anti‐​conservative bias within the most popular social media companies. These complaints have often overshadowed concerns from Democratic lawmakers, who have expressed unease for years about the proliferation of extremist content online. Many of these lawmakers no doubt view last week’s tragedy as a vindication of their concerns, and they will act. We should expect renewed policy debates on Section 230 and encryption to center around political extremism.

Sadly, last week’s attack on the Capitol was not the first time Americans have witnessed domestic violence from those who become expressed extremist views online. In October 2018 a shooter murdered eleven congregants in the Tree of Life Synagogue in Pittsburgh. Shortly after, Sen. Mark Warner (D-VA) said, “I have serious concerns that the proliferation of extremist content — which has radicalized violent extremists ranging from Islamists to neo‐​Nazis — occurs in no small part because the largest social media platforms enjoy complete immunity for the content that their sites feature and that their algorithms promote.” The Pittsburgh shooter had been an active poster on Gab, a social media site popular with white nationalists and conspiracy theorists. He allegedly posted, “HIAS [Hebrew Immigrant Aid Society] likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics, I’m going in.“

Sen. Warner’s mention of “complete immunity” is a reference to Section 230 of the Communications Decency Act. The law states that interactive computer services, such as Facebook and Twitter, are not considered the publishers of the vast majority of content posted by users. Warner is incorrect when he describes Section 230 as providing “complete immunity.” The law does include exceptions for (among others things) content related to sex trafficking and content that violates copyright. Nonetheless, Warner is correct to note that online content can radicalize social media users.

A few months after the shooting in Pittsburgh, a white supremacist murdered dozens of Muslims during a shooting at two mosques in Christchurch, New Zealand—and live‐​streamed the shooting on Facebook. He had visited sites such as 4chan’s /​pol board, well‐​known as a home for alt‐​right content. His descent into xenophobic ideology did not occur solely on the Internet. He went on a pilgrimage to Europe, visiting sites of Islamic terrorist attacks and meeting with identitarian leaders. After the shooting, Sen. Richard Blumenthal (D-CT) accused Facebook, YouTube, and Twitter of turning a “blind eye to hate & racism on their platforms.”

While the shootings in Pittsburgh and Christchurch prompted discussions about online extremist speech, it is safe to assume that the recent storming of the Capitol will lead to a much larger backlash against online extremist speech.

One of the most popular recent venues for extremist political speech and conspiracy theories was Parler. A social media network that portrayed itself as an online free speech zone, Parler became a popular venue for Trump supporters amid allegations of Silicon Valley anti‐​conservative bias. Parler users were among the rioters at the Capitol last week. Perhaps in anticipation of political backlash, Apple and Google removed Parler from their app stores. Amazon joined them in taking action by suspending Parler from Amazon Web Services (AWS) hosting, taking the site offline entirely. Parler is suing AWS, alleging that Amazon breached its contract. Since the AWS news, Parler has registered its domain with Epik, a domain registrar of last resort for the far‐​right.

Since Google, Apple, and Amazon severed ties with Parler a range of online platforms have seen an increase in users. Tens of millions of people signed up for Signal and Telegram, two encrypted messaging apps. Reporting from The New York Times reveals that at least one militia group is using Signal to organize its activities.

That Parler enjoyed Section 230 protections and political extremists moved to encrypted channels suggest that upcoming debates on online speech and encryption will feature frequent references to extremist content.

Although much of the debate surrounding objectionable online content features Section 230, we should not forget that it is the First Amendment, not Section 230, that protects a private company’s decision to remove content they find objectionable. Section 230 is about liability, not the freedom of association. Nonetheless, Section 230 remains crucial for any institution allowing users to post content on walls, message boards, review pages, etc.

Last year, a bipartisan group of senators proposed the EARN IT Act. The bill, as its name implies, would require companies to “earn” Section 230 protections, making them contingent on services adhering to a set of best practices developed by a commission aimed at tackling child sexual abuse material. Civil libertarians voiced their concerns about the bill, which many consider a threat to encryption. After all, if the commission deemed the creation of a “back door” to encrypted content part of their best practices, interactive computer services would be put in the position of choosing between threatening their users’ security and privacy or facing the potential of crippling lawsuits.

As lawmakers see political extremists flock to end‐​to‐​end encrypted messaging services such as Signal, they may look to proposals such as the EARN IT Act and seek to incentivize services to allow law enforcement to decrypt encrypted content. It is true that criminals use encryption, but so do journalists, whistleblowers, dissidents, members of the military, Capitol Hill staff, and many others. There is no such thing as encryption that only works for the good guys. Weakening encryption may help law enforcement investigate crimes, but it will put the privacy and security of Americans at risk.

Any legislation to address political extremism will quickly run into a stubborn barrier: the First Amendment. Much of the content shared on Parler was vile, but it was not illegal. Under U.S. law, it is not illegal to say that the world would be better if the vice president were killed, or spread conspiracy theories and racist content.

The list of speech not protected by the First Amendment is short, but it does include incitement to “imminent lawless action.” Although many commentators have described the rhetoric of President Trump’s Jan. 6th comments as “inciting” the mob to attack the Capitol, it is not obvious that his comments clear the Supreme Court’s incitement test set out in Brandenburg v. Ohio (1969). Under Brandenburg, speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected by the First Amendment. Legal scholars and commentators have come to different conclusions about whether Trump’s comments meet that standard.

Whether Trump’s comments are illegal could have a significant impact on online speech if Section 230 is amended. Boston University Law School’s Danielle Citron and the Brookings Institution’s Ben Wittes have proposed changing Section 230 so that it applies only to interactive computer services that take “reasonable steps to prevent or address unlawful uses of its services.”

If such an amendment were enacted, interactive computer services would have an incentive to embrace false positives in order to ensure that they don’t run afoul of Section 230. Awful but lawful speech could be stifled because sites hosting third‐​party content would seek to avoid bankruptcy via a tsunami of lawsuits.

Some might ask, “What’s wrong with services having an incentive to err on the side of caution when it comes to borderline illegal speech?” The answer is that such an environment is likely to be anti‐​competitive, with powerful market incumbents best positioned to adapt to how courts and lawmakers interpret “reasonable steps.” While concerns about online political extremism are likely to prompt lawmakers to seek carrots and sticks for social media companies, we should keep in mind that Section 230 amendments could ultimately entrench the companies so many are criticizing.

The attack on the Capitol last week will bring online political extremism to the center of debates about encryption and Section 230. Amid such debates, we should be wary of the unintended consequences of weakening encryption and amending Section 230.

January 15, 2021 12:19PM

Transit Unions to DHS: Give America A “No Ride” List

We’re just 15 days into 2021, and the number of really bad, anti‐​liberty policy and legislative proposals are multiplying like mold spores.

To that end, I would direct you to the request by the International Association of Sheet Metal, Air, Rail and Transportation Workers that the Transportation Security Administration (TSA) create a “No Ride” list for passenger rail akin to TSA’s infamous “No Fly” list for the airline industry. From the unions’ press release:

Suspected insurrectionists continue to threaten further violence as the transition to President‐​elect Joe Biden’s administration approaches next week. Some of these have been relegated to the No Fly List overseen by FAA, preventing them from traveling by air, but no such restriction exists for the national passenger rail network. SMART-TD and BLET urge that a “no‐​ride” list that mirrors FAA’s list be enacted immediately.

By all means, lets make passenger rail travel just as hell‐​like as airline travel: insane requirements for removing shoes, non‐​science based limits on liquid carry‐​on items, more expensive, ineffectual screening technology, and of course, even longer delays in being able to board your train and get to your destination. Apparently, union reps have forgotten just how ineffectual and liberty‐​damaging TSA’s VIPR teams were before Trump—in one of his few useful acts as President—tried to kill the VIPR program.

This union proposal naturally begs additional questions: where will it end? Will the union representing Washington Metropolitan Transportation Authority (WMATA) ask for a “No Ride” list for DC’s Metrorail and Metrobus services? After all, since you don’t know who might morph from a protestor to an insurrectionists, better to to simply take any names of the January 6, 2021 insurrectionists (alleged or actual) on the TSA “No Fly” list and get them banned from riding Amtrak, DC Metro, or any other transit system, right?

That our nation’s Capitol building was overrun by at least hundreds seeking to overturn a fair, free, and valid election is clear. The Department of Justice has already created a running, online list of those thus far charged with federal crimes in connection with the insurrectionist event. What we don’t need is yet another due process‐​free, innuendo driven, government run transportation security “list” that gives us another debacle like TSA’s Quiet Skies program, and that further undermines the ability of citizens not wanted for a crime to go about their travel unmolested.