Archives: 08/2017

Neither Florists Nor Bakers Should Be Forced to Participate in Same-Sex Weddings

While same-sex couples ought to be able to get marriage licenses—if the state is involved in marriage at all—a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.

Arlene’s Flowers, a flower shop in Richland, Washington, declined to provide the floral arrangements for the wedding of Robert Ingersoll and Curt Freed. Mr. Ingersoll was a long-time customer of Arlene’s Flowers and the shop’s owner Barronelle Stutzman considered him a friend. But when he asked her to use her artistic abilities to beautify his ceremony, Mrs. Stutzman felt that her Christian convictions compelled her to decline. She gently explained why she could not do what he asked, and Mr. Ingersoll seemed to understand.

Later, however, he and his now-husband, and ultimately the state of Washington, sued Mrs. Stutzman for violating the state’s laws prohibiting discrimination in public accommodations. The trial court ruled against Arlene’s Flowers on summary judgment. The Washington Supreme Court affirmed, holding that Mrs. Stutzman’s floral design did not constitute artistic expression worthy of First Amendment protection. Now the case is on the U.S. Supreme Court’s doorstep and Cato, joined by the Reason Foundation and Individual Rights Foundation, has filed an amicus brief urging the Court to take up the case and consolidate it with Masterpiece Cakeshop, the case of the similarly situated Colorado baker that the Court has already agreed to hear.

Terrorism Deaths and Injuries by Ideology: Excluding the Outlier Attacks

My recent blog post on the deaths and injuries caused by terrorists according to their motivating ideologies sheds some light on how frequent attacks like Charlottesville occur. I found that there were 3,342 total murders on U.S. soil caused by terrorists from 1992 through August 12, 2017. Of those, Islamists were responsible for 92 percent, Nationalist and Right Wing terrorists for about 7 percent, and Left Wing terrorists for less than one percent. The most common query after reading my post was: “What happens if you exclude deaths from the outlier attacks of 9/11 and the Oklahoma City bombing?” 

I originally did not exclude the deaths in these outlier attacks in my first post because I merely sought to describe who was killed and by whom. In response to that common question, I decided to post the results that exclude the outlier 9/11 and Oklahoma City attacks. Doing so changes the ratio of murders by ideology but it does not change which terrorism-inspired ideologies are the deadliest.

Table 1 subtracts the 2,983 deaths and 14,842 injuries caused by Islamist terrorists on 9/11 and the 168 deaths and 650 injuries caused by a Nationalist/Right Wing terrorist in the Oklahoma City bombing. Excluding the outliers reduces the total number of deaths by 94 percent from 3,342 to 191. The number of injuries also falls by 91 percent. Just two attacks account for nearly all of the deaths and injuries, though 9/11 was the bigger contributor. After removing the outlier deaths and injuries, Islamist-inspired terrorists are responsible for 53 percent of the murders and 77 percent of the injuries. That is a decline from my original post where I included 9/11 and found that Islamists are responsible for 92 percent of deaths and 94 percent of injuries. The relative percentage of murders committed by Nationalist and Right Wing terrorists rises from about 7 percent in my original post to 27 percent when the 9/11 and the Oklahoma City attacks are excluded. The deaths by Left Wing terrorists also grow in importance from less than 1 percent to 8 percent. 

How Do Police View The Neo-Nazi/White Supremacist Threat?

Two years ago, researchers at Duke University, drawing on a survey they conducted with police departments around the country through the Police Executive Research Forum, published a study on police perceptions of the domestic terrorist threat. It’s worth recounting the key findings:

Law enforcement agencies in the United States consider anti-government violent extremists, not radicalized Muslims, to be the most severe threat of political violence that they face.

They perceive violent extremism to be a much more severe threat nationally than the threat of violent extremism in their own jurisdictions.

And a large majority of law enforcement agencies rank the threat of all forms of violent extremism in their own jurisdictions as moderate or lower (3 or less on a 1-5 scale). 

The study looks at post-9/11 incidents and comes to conclusions comparable to a GAO study on the topic, commissioned by the bipartisan leadership of the Senate Homeland Security and Government Affairs Committee, earlier this year. Nearly a decade ago, a then-controversial DHS report on domestic extremism highlighted the potential danger for violent acts by white supremacist or neo-Nazi groups. 

My colleague Alex Nowrasteh has a very interesting and informative piece out today that goes into some depth about the relative threat from terrorists compared to other forms of violence. One point I would make is that the 9/11 attacks represent an anomaly in the overall picture because of the magnitude of the intelligence failure involved. As I’ve written previously, that foreign terrorist attack on America was entirely preventable. That’s not to suggest that Salafist terrorism does not pose a domestic threat; clearly it does. But the on-the-ground daily reality—as the studies cited above show—is that in post-9/11 America, the threat from white supremacists, “sovereign citizens,” and those professing similar views and acting on them is at least as great a threat as Salafist-inspired killers.

In the wake of the Charlottesville tragedy, the phrase “anti-government group” is likely to get tossed around rather carelessly, both in the media and by some in the advocacy community. Calling for a smaller federal government whose powers—especially surveillance powers—are reduced and properly controlled does not make one an “extremist.” Spewing racial hatred and committing acts of murder is the very manifestation of violent extremism, something all of us should condemn and oppose.

 

A Dozen Times Trump Equated his Travel Ban with a Muslim Ban

Last week, the Trump administration filed its merits brief in the Supreme Court case over his executive order suspending all travel and immigration from six African and Middle Eastern countries. On Twitter, President Trump has been insistent that the executive order is a “travel ban,” not some “politically correct term.” The statement shows that, while he is often difficult to understand, the president is actually very interested in how he brands his proposal. This fact matters because the constitutional case against the ban depends, in part, on Trump’s statements about it—specifically, the fact that he has repeatedly equated his current policy with his original proposal for a “Muslim ban.”

Beyond the lawsuit, however, it matters why the president has chosen to carry out certain proposals. If the president believes his travel ban will improve security by reducing Muslim immigration, then this is an important consideration for voters or anyone interested in influencing his policies in the future.

Trump’s Statements Equating the Muslim and Travel Bans

I reviewed the president’s comments about the ban—a list of which you can find below with fuller context—and found at least 12 statements where Donald Trump equated his plan to suspend immigration from certain countries with his original plan to ban all Muslims from entering the United States. I say at least because I have not watched all of his many rallies and have no access to his private correspondence. On another occasion, when asked after the election whether his plans to ban Muslims had changed, he reiterated that his plans on that subject were known. These dozen cases collectively demonstrate that President Trump understood his travel ban as a version of his Muslim ban.

Trump’s 12 statements occurred over a period of seven months from May 2016 to December 2016. They include nine separate situations and six direct denials to direct questions about whether the travel ban had changed his plans to ban Muslims. These statements occurred in various contexts, including private phone calls, written speeches, improvised speeches, interviews, and a debate. During this time, he described the travel ban as an “expansion” of the Muslim ban, a “bigger” version of the Muslim ban, and a “morphed” version of the Muslim ban.

Moreover, in these statements, President Trump explained exactly why his method of carrying out the ban changed. He specifically cited two reasons: the negative reaction to the outright Muslim ban and the constitutional concerns that others had expressed. However, he stated that for his part, he believed that the “Constitution does not give us the right to commit suicide,” a phrase used to express that although it may violate the Constitution, we should permit the violation to avoid a collapse of the entire society. Nonetheless, he said he was willing to acquiesce to others’ concerns.

Diverted Educational Resources = Higher Student Achievement?

Education scholars such as Richard Kahlenberg from The Century Foundation claim that since school choice programs “divert important resources away from the public schools,” children left behind in traditional public schools could be negatively impacted academically. However, a peer-reviewed study recently released by Temple University professor Sarah Cordes finds that charter school competition actually improves student achievement in nearby traditional public schools in the nation’s largest school district—New York City.

Specifically, Cordes finds that attending a traditional public school within a mile of a charter school in NYC increases student achievement in math and reading by about 0.015 standard deviations, or around 11 days of additional learning in both subjects. The detected effects increase with the proximity of the public charter school competition.

But why does this happen?

Residentially assigned public schools only lose funding if families are able to exit them for an alternative private or public educational option. If a traditional public school leader knows that their educational institution could be financially harmed by the choices of individual families, they will have a strong incentive to cater to the needs of their students. Since parents care about the academic success of their children, public school leaders will need to focus on turning educational resources into vital lifelong outcomes when faced with competitive pressures.

Although these findings may surprise those that listen to the frequent claims made by public education monopolists, they should not surprise social scientists. This study only adds to the abundance of the evidence existing on the topic that points in the same direction.

Prior Scientific Evidence 

Terrorism Deaths by Ideology: Is Charlottesville an Anomaly?

One person was murdered in a likely terrorist attack in Charlottesville, Virginia this Saturday when a suspected white nationalist named Alex Fields Jr. drove his car into a group of protesters. Prominent people on both sides of the political spectrum have condemned the politically motivated violence. However, some commentators have pointed out that left wing terrorists and rioters have also committed violence in recent years, though they have not provided any data with which to compare the relative scale of the violence. This blog fills that void by describing terrorist murders and injuries by the political ideology of the perpetrators. Also, though the chance of being murdered or injured in a terrorist attack is minor, there is wide variation in the ideology of terrorists. 

Data and Methodology

This post examines 25 years of terrorism on U.S. soil from 1992 through August 12, 2017. Fatalities and injuries in terrorist attacks are the most important measures of the cost of terrorism. The information sources are the Global Terrorism Database at the University of Maryland and the RAND Corporation. Other organizations seem to count many religiously or racially motivated crimes as terrorist offenses, an overcounting that I attempted to avoid. I estimate the number of murders committed by terrorists in 2017 from online sources although they may be incomplete. As much as possible, I excluded terrorists who died or were injured in their attacks as they are not victims.

I grouped the ideology of the attackers into four broad groups: Islamists, Nationalists and Right Wingers, Left Wingers, and Unknown/Other. Global Terrorism Database descriptions of the attackers and news stories were my guide in organizing the groups by ideology. Islamists and unknown/other straightforward. Left Wing terrorists include Communists, Socialists, animal rights activists, anti-white racists, LGBT extremists, attackers inspired by Black Lives Matter, and ethnic or national separatists who also embrace Socialism. Nationalist and Right Wing terrorists include white nationalists, Neo-Confederates, non-socialist secessionists, nationalists, anti-Communists, fascists, anti-Muslim attackers, anti-immigration extremists, Sovereign Citizens, bombers who targeted the IRS, militia movements, and abortion clinic bombers. Some of the marginal attacks are open to reinterpretation but the ideology of the attackers by death and injury are straightforward in virtually all cases.

To Apply the Fourth Amendment in the Digital Age, Go Back to Its Text

Timothy Carpenter and Timothy Sanders were convicted in federal court on charges stemming from a string of armed robberies in and around the Detroit area. They appealed on the ground that the government had acquired detailed records of their movements through cell site location information (“CSLI”) from their wireless carriers in violation of the Fourth Amendment. The U.S. Court of Appeals for the Sixth Circuit turned their appeal aside, finding that “[t]he government’s collection of business records containing these data … is not a search.”

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Presumably, when called on to determine whether a Fourth Amendment violation has occurred, courts would analyze the elements of this language as follows: Was there a search? Was there a seizure? Was any such search or seizure of “their persons, houses, papers, [or] effects”? Was any such search or seizure reasonable?

In cases involving familiar physical objects, they usually do. In harder cases dealing with unfamiliar items such as communications and data, however, courts retreat to the Supreme Court’s “reasonable expectation of privacy” doctrine that emerged from Katz v. United States (1967). The Court has decided to review the important criminal-procedure and digital-privacy issues here.

Cato and the Competitive Enterprise Institute, joined by Reason Foundation and the Committee for Justice, filed an amicus brief urging the Court to return to the text of the Fourth Amendment. The reasonable expectation of privacy test is outdated because it lacks a strong connection to the text and asks courts to conduct a sociological exercise rather than a judicial one. This is especially true in the context of new technology, where societal expectations have not been fully formed yet and will change based on the Court’s judgment, leading to circular reasoning.

Courts have also used the ”reasonable expectation of privacy” test to undermine the very things the Fourth Amendment was designed to protect. For instance, dog sniffs looking for drugs have been said to not “compromise any legitimate interest in privacy” because they are only looking for contraband. But just because a search is designed to look for illegal activity doesn’t mean that the Fourth Amendment is inapplicable.

Likewise with the “third-party doctrine,” which holds that constitutional protections stop when protected information is shared.

The Carpenter case deals with information about a person’s location for more than 100 days, and yet the government claims that no privacy is violated when it seizes and searches that data. The Court should return to the text of the Fourth Amendment and recognize that data and digital communication are property that are protected by the papers and effects part of the Fourth Amendment, as it did in Riley v. California—the 2014 case where the justices unanimously required a warrant for searching a phone seized during an arrest.

Here, the government ordered the information on Mr. Carpenter’s location turned over (a seizure) and then processed that data for the location of the defendants (a search). The defendants had a contract with the phone company prohibiting the distribution of the data and the Court should recognize the property interest that the defendants had based on that contract.

In sum, the Fourth Amendment presumes that a warrant is required but for exceptional circumstances. There was no exigency that threatens the destruction of the data here, threat to officer safety, or any other reason that law enforcement officers could not get a warrant if they had probable cause. Focusing on the actual text of the Fourth Amendment demonstrates that the government’s actions here violated the Fourth Amendment.

The Supreme Court will hear Carpenter v. United States this fall.