The Cato Institute is committed to being a libertarian think tank: individual liberty, limited government, free markets, and peace. But one thing that’s often misunderstood is that Cato as such does not take institutional positions on particular policy questions. Cato scholars speak for themselves and have the freedom to reach their own conclusions, particularly on things that are contested among libertarians.


Recently there was an example of this as two Cato scholars appeared in major media to articulate their differing views on vaccines and how to apply libertarian principles in the context of the COVID-19 pandemic. One of our senior fellows, Todd Zywicki, wrote in the Wall Street Journal on August 6 to explain why he is suing George Mason University, where he is a law professor, over their policy requiring COVID-19 vaccination. In particular, he objects to the application of the policy to people like him who have already had and recovered from COVID, and thus already have some degree of natural immunity.


Another Cato adjunct scholar, also a George Mason law professor, Ilya Somin, appeared on MSNBC on August 11 to discuss why he sees vaccine requirements as potentially justified and preferable to other policy options. Drawing on libertarian principles, he made the case that a disease like COVID involves the potential of harm to other people. Somin pointed out that mask mandates, lockdowns, and restrictions on international travel are all much more intrusive than the relatively slight imposition of a safe and effective vaccine. There is a particularly strong libertarian case that private institutions, and even the government when acting as employer, can set policies attached to what are voluntary relationships: employees, customers, students, and the like. Florida’s recent attempt to ban private businesses such as cruise lines from adopting vaccine requirements has already suffered defeat in court and is one example of an affront to libertarian sensibilities.


In this case as on other issues, we don’t require uniformity or suppress differing views among our scholars. And any one scholar’s individual view is not necessarily “Cato’s position” on a matter. That diversity of viewpoints and intellectual freedom is part of why Cato has been able to provide an effective voice for classical liberal and libertarian ideas across the entire range of public policy issues. The standards we uphold are for intellectual rigor and solid grounding in good data, especially for work Cato publishes. Our scholars also frequently write, publish, and engage in advocacy outside of Cato, which we happily encourage. It’s that reputation for intellectual honesty and serious engagement with opposing points of view which has helped put Cato routinely near the top of rankings of America’s most influential think tanks, making a difference for freedom in state capitals, on Capitol Hill, and at the Supreme Court, where Cato’s renowned amicus program is tied with the ACLU at the top of the rankings for filing on the winning side of major policy cases.

Anthony Novak of Parma, Ohio, created a Facebook page parodying his local police department. The page superficially resembled the department’s official Facebook page, but its content was far too outlandish to be easily mistaken for a police department’s communications. Satirical posts promoted free abortions for teens out of a police van, a contest featuring removal from the sex offender registry as the grand prize, and other Onion‐​style “fake news.”

The Facebook page was only online for twelve hours, but on the basis of nothing more than Novak’s Facebook posts, the Parma Police obtained warrants to arrest Novak and search his apartment. Novak was charged under a statute criminalizing disrupting police operations, even though the only effect that Novak’s Facebook page had on the police department consisted of a few citizens’ phone calls to the police station that took up a total of twelve minutes of their time.

The case went to trial and a jury acquitted Novak. Novak then sued the city and police for retaliating against First Amendment protected speech. After an appeal and remand on preliminary issues, the district court dismissed Novak’s case, holding that the police had probable cause to arrest him even if his Facebook parody was protected speech under the First Amendment.

Novak has again appealed to the Sixth Circuit, and Cato has joined the American Civil Liberties Union and ACLU Ohio on a brief supporting Novak. In the brief, we explain that the First Amendment protects Americans’ right to criticize their government, and that includes not only sober and straightforward speech but also mockery, satire, and parody. The government officials who are the targets of this speech are not always pleased, but the First Amendment protects speakers against government retaliation. If police could arrest citizens based on nothing more than their constitutionally protected expression, the First Amendment’s protections would be severely undermined.

Because parody and criticism of police officers had already been held to be protected speech well before Novak’s arrest, it should have been clear to any reasonable officer that Novak’s parody page could not establish probable cause for his arrest. We urge the Sixth Circuit to reverse the district court and make clear that citizens have a right to mock and parody the government without fear of retaliation.

The first House vote in years on an electronic surveillance reform measure is poised to happen as early as late this afternoon.

Late yesterday, the House Rules Committee passed the rule governing debate on the Fiscal Year 2022 Commerce, Justice, Science and Related Agencies (CJS) appropriations bill. Among the amendments made in order by the rule is a bipartisan one co-authored by Rep.‘s Zoe Lofgren (D‑CA), Thomas Massie (R‑KY), Pramila Jayapal (D‑WA), Warren Davidson (R‑OH), Anna Eshoo (D‑CA), Victoria Spartz (R‑IN), and Alan Lowenthal (D‑CA).

The amendment itself is similar to ones offered in past Congresses by Lofgren and Massie as a short-term, but real, means of preventing the FBI and other federal agencies from conducting digital “fishing expeditions” on the data of Americans swept up—deliberately or otherwise—under the infamous FISA Section 702 program. It should be noted that the FISA Court has never sanctioned any federal department or agency for documented violations of the rights of Americans in connection with the Section 702 program.

As of yesterday, the White House Statement of Administration Policy (SAP) on the CJS bill contained no mention of the Lofgren-Massie amendment. Should the amendment pass the House, that may well change, as administrations of both parties have repeatedly fought any attempts to rein in the Section 702 program. Whether the amendment, if passed, would survive a House-Senate conference on the CJS bill is another open question.

Every time one of the Freedom of Information Act (FOIA) requests I file with the FBI subsequently nets a result indicating potential or actual surveillance or other kinds of actions targeting an American domestic civil society organization, it obligates me to notify the affected group to see how they want to proceed. A few groups have, in the past, asked Cato not to go public with our findings; most others have been willing to let us do so.

And then there’s Concerned Women of America (CWA), which has responded in exactly the way every group should when they discover they’ve been in the FBI’s crosshairs.

In the Washington Times commenting on Cato’s FOIA findings, CWA CEO Penny Nance said this

“You want to believe that the people of your intelligence agencies and at the top of the FBI are credible, and you want to believe that they are only looking at Americans with probable cause, but I’ve learned that’s not necessarily the case. That’s what this has taught me,” Ms. Nance said. “What this has taught me is that the FBI does not need probable cause to snoop on Americans, and that is a wake-up call.”

As the Times piece also noted, Senate Judiciary Committee ranking member Chuck Grassley (R‑IA) has asked Attorney General Merrick Garland and FBI Director Chris Wray to explain just exactly why the FBI was, without any criminal predicate whatsoever, allowing one or more FBI agents to open an “Assessment” on CWA and troll public and government databases looking for evidence of corruption on the part of Nance’s organization. 

That’s a welcome step, but it’s important to keep sight of the larger picture. 

What the FBI did to CWA it could to do any domestic civil society organization.

Indeed, Cato has other examples of that to point to already, including FBI actively spying on a government watchdog group and monitoring LNG pipeline project protesters, among others. It doesn’t take long for these anecdotes to become real data. Not surprisingly, the FBI is doing its best to keep the public from seeing that data, which is why, as the Times reported, Cato is suing the FBI for copies of Assessments going back to 2009 (when the FBI was first authorized to use them). 

In late October 2021, this country will have been living with the PATRIOT Act for 20 years, and for 13 years with the FBI’s radical investigative tool known as Assessments. It’s well past time for Congress to open the books on these and every other surveillance program implemented since the Church Committee era over 45 years ago. Failure to do so will make it more likely that the creeping authoritarianism of the surveillance state becomes inexorable…and possibly irreversible. 

Cable television host Tucker Carlson has leveled an explosive charge at the National Security Agency: He claims the spy agency has been snooping through his e‑mails and text messages as part of plot to discredit Carlson and his eponymous Fox News program. The NSA took the rare step of issuing a public statement denying that Carlson had been an intelligence target, and his own network—both its executives and its news division—has been conspicuously muted about the allegations. So what’s going on here?

Based on the publicly available facts, I feel reasonably confident about three things: First, Carlson’s sensationalist version of the story—that he was illegally targeted by the Biden administration in service to some political vendetta—is pretty unlikely to be true. Second, it is not only plausible but quite likely that some of Carlson’s communications were nevertheless intercepted by NSA. Third, on the currently public facts, it not clear whether anyone at NSA or within the broader Intelligence Community did anything improper, let alone unlawful— and this should in itself be disturbing, because it illustrates how dangerously broad our foreign intelligence surveillance authorities have become.

Let’s start with those public facts. Carlson says he was approached by a whistleblower from within the federal government who alerted him that certain of his communications had been reviewed by NSA, proving these claims by providing details that could only have come from Carlson’s private e‑mails and text messages. The host concluded that NSA had been “monitoring our electronic communications and is planning to leak them in an attempt to take this show off the air.” A few days later, Axios reported that Carlson had been seeking, via two “Kremlin intermediaries,” to secure an interview with Russian president Vladimir Putin, and that government had become aware of his outreach. Carlson had in turn learned of this, prompting his charge of illicit spying. In the aftermath of the Axios story, Carlson claimed vindication: Not only had he been spied on, he argued, but NSA had been leaking the details of his communications in an effort to discredit him.

I’m skeptical of Carlson’s framing, though not because it’s inconceivable in principle that American intelligence agencies might illegally target journalists or political enemies. They have a long and sordid history of doing precisely that, most notoriously during J. Edgar Hoover’s disgraceful tenure as head of the FBI, which spawned a long-running project, known as COINTELPRO, dedicated to targeting domestic dissidents. Yet Carlson’s theory of the case doesn’t make a ton of sense. He says NSA planned to leak his attempts to secure a Putin interview in order to “paint me as a disloyal American… [a] stooge of the Kremlin, a traitor doing the bidding of a foreign adversary.” That sounds like a singularly bad plan: Putin has been interviewed many times by mainstream American reporters, including Carlson’s Fox colleague Chris Wallace back in 2018, and NBC News just last month. It is hard to think of a more ineffective smear than “television host seeks interview with foreign leader”—a fact that the host presumably intends to become public anyway when the interview is aired. And it is similarly hard to think of a riskier target—one more apt to provoke both internal and external scrutiny—than a well-known conservative media figure. NSA has no lawful way of directly targeting an American within the U.S. without the involvement of the Foreign Intelligence Surveillance Court and several layers of Justice Department review. So the most exciting version of the story is that intelligence officials were prepared to hazard disgrace and prosecution for the sake of… possibly embarrassing a television infotainer? Stranger things have happened, but it doesn’t seem at all likely.

Here is a much more plausible scenario: NSA was spying on the Russian government or its agents—which might well include the “Kremlin intermediaries” to whom Carlson had reached out—under any one of a number of different applicable authorities, depending on the identity of the specific target and where they were located. In the process, they “incidentally collected” Carlson’s communications—either directly from the “intermediaries,” who may have been targeted as “agents of a foreign power” pursuant to a Foreign Intelligence Surveillance Act order, or indirectly, when those intermediaries then passed on Carlson’s interview request to officials who could convey it to Putin, which would not require any court authorization. The information that Putin was considering another U.S. media appearance might not be terribly exciting, but it would nevertheless qualify as “foreign intelligence” as that term is broadly defined, and disseminated in reporting to any number of NSA clients.

Carlson has acknowledged this possibility, but claimed that it would nevertheless be illegal if the reports had included his name or identifying information, or had allowed his identity to be “unmasked” subsequently by request. That is a natural intuition—that information about U.S. persons picked up by the government, even in the course of legitimate surveillance, ought to be strongly legally protected. Alas, that’s not true either. In reality, while U.S. person identities are supposed to be “masked” by default under standard “minimization procedures,” this is a fairly weak requirement. U.S. person identities can be included in reporting whenever it’s deemed necessary to provide proper context for the intelligence being reported, or “unmasked” by specific request later. Both of these things are extremely common.

We have unmasking statistics for just one of the many surveillance authorities the Intelligence Community employs: §702 of the Foreign Intelligence Surveillance Act. Last year, NSA disseminated 2,648 reports initially containing “masked” U.S. person identities, and 1,351 reports in which at least one U.S. person’s identity was openly included. But many of those initially masked identities did not remain masked. In 2020, NSA subsequently “unmasked” 9,354 U.S. person identities in response to a specific request from another agency. In 2018, the number was a whopping 16,721. If you find those numbers disturbing, join the club. But unmasking is neither unusual nor illegal. 

One charge remains, and here it’s harder to say whether Carlson’s complaint is accurate. He says a journalist contacted him—presumably referring to the Axios story, though other outlets may have had it—with knowledge of his communications about seeking an interview with Putin. This, he avers, shows that someone in the Intelligence Community had leaked details of his private communications to the press in an attempt to discredit his charges against NSA. That would indeed be both scandalous and unlawful if it were true. But it’s not clear from the Axios story itself whether it was based on information from a government source. Carlson says he told his executive producer about his outreach to Putin, which means at least one other person at Fox was aware of the communications, and may have shared that information with others. And of course the recipients of the communications would have been aware of them as well, as well as any Russian officials involved in subsequently entertaining the interview request. For intelligence officials to leak those details in order to disrupt an unfavorable story would indeed be a serious abuse of power, but given the numerous other potential sources, we can’t as yet say with any confidence whether that’s what occurred. 

In a sense, Carlson’s sexier framing of the story is also more comforting: Bad actors are abusing their powers in violation of the law—but that’s a simple problem that can be fixed by identifying the bad actors and firing or prosecuting them. The probable reality is both more mundane and more chilling: We have given our intelligence agencies vast surveillance powers, with bipartisan support, hemmed in by gossamer-thin safeguards that, as in the case of “masking,” are routinely bypassed perfectly lawfully. If the reality of intelligence collection and dissemination sounds like it must be a scandal, like it surely has to be illegal… then it is within our power to change the law so that it is. 

On Monday, LGBT activists in Tbilisi, Georgia, called off a planned Pride March after hundreds of violent counter-protesters attacked activists and journalists.

On Tuesday, WeChat, China’s most popular social media service, shut down dozens of accounts on LGBT topics run by college students and nonprofit groups as part of a tightening of political control by the Communist Party.

Three weeks ago, Hungary’s parliament passed legislation that would ban the dissemination of content in schools deemed to promote homosexuality and gender change.

And all these assaults on human rights reminded me of a column written in 2013 by the British journalist Michael Hanlon. Hanlon wrote about a “morality gap” in the world that could be seen most clearly in attitudes toward gay rights. His column is worth quoting at length:

It is now clear, though not much talked about, that humanity, all 7.1 billion of us, tends to fall into one of two distinct camps. On the one side are those who buy into the whole post-Enlightenment human rights revolution. For them the moral trajectory of the last 300 years is clear: once we were brutal savages; in a few decades, the whole planet will basically be Denmark, ruled by the shades of Mandela and Shami Chakrabarti.

And there’s some truth in this trajectory — except for the fact that it only applies to half the planet. The other half resolutely follows a different moral code: might is right, all men were not created equal and there is a right and a wrong form of sexual orientation.

You can identify those countries in the dark half of the divide by their attitudes to homosexuality and women; to honour killings, race, disability, mental illness, religious minorities and to crime, torture and punishment, even animal rights and the environment.…

Let’s start with attitudes to gays, not because gay rights are the most important issue, but because attitudes to homosexuality show the morality gap in sharpest relief.…

A look at the timeline of gay rights shows a seemingly unstoppable barrage of permissiveness, with state after state passing laws first legalising homosexuality, then going further: permitting gay marriage and gay adoption and formalising gay relationships in terms of pensions and property rights. It’s tempting for those of us in this enlightened half of the world to think of this as a great wave of progress that rose up in the mid-20th century and will sweep across the world.

Tempting, but wrong. In fact, in much of the world, received wisdom on homosexuality appears to be going into reverse.

Of course, this divide in the world is well known. It’s been discussed and analyzed in Pew Research studies, examined at Human​Progress​.org, and included in the rankings of the Human Freedom Index.

Martin Luther King, Jr., often said, “The arc of the moral universe is long, but it bends toward justice.” There’s certainly evidence that’s true, but it’s cold comfort for the gay, lesbian, bisexual, and transgender individuals living stunted lives in so much of the world today.

Since Janus v. AFSCME was decided in 2018, workers across the country have exercised their newfound freedom to no longer subsidize union speech against their will. But although Janus liberated unionized government employees from compelled dues, other professionals have not yet won a similar freedom. A particularly stark example is the legal profession; lawyers nationwide remain forced to pay membership dues to ideologically dominated state bar associations in order to practice law.

The disconnect between Janus and the legal profession stems from two Supreme Court precedents that weren’t explicitly overruled by Janus: Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990). Lathrop held that lawyers may be mandated to join a bar association that solely regulates the legal profession and improves the quality of legal services, while Keller clarified that lawyers’ mandatory dues could not be used to fund activities of an ideological nature that are non-germane to regulating the legal profession and improving the quality of legal services.

Several recent lawsuits have highlighted the need, in the aftermath of Janus, to re-evaluate the constitutionality of compelling lawyers to sacrifice their freedoms of association and speech to work in the legal profession. Last week, the Fifth Circuit took up that task when it decided McDonald v. Longley.

The Fifth Circuit addressed issues left unresolved by Keller: whether a lawyer could be forced to join a bar association that engages in non-germane activities (e.g. activities that advocate change to a state’s substantive law) and whether the compelled subsidization of those non-germane activities is unconstitutional. In Texas, the bar association has used its fees to lobby to amend the Texas Constitution’s definition of marriage, to propose substantive changes to Texas family law, and to fund the Texas Supreme Court’s Access to Justice Commission, which lobbies for changing Texas law to be more beneficial toward certain socioeconomic classes.

While these goals may be laudable to some and disagreeable to others, the Texas bar association overstepped its constitutional bounds by delving into issues that neither regulated the legal profession nor improved the quality of legal services in the state. Providing a glimmer of hope to lawyers across the country and a win for the free speech rights of Texas lawyers, the Fifth Circuit handed down the first decision from a federal court to invalidate mandatory bar membership and dues on the basis of a First Amendment violation.

On the heels of the Fifth Circuit’s decision, a lawsuit challenging the compelled funding of Oregon’s state bar association awaits potential review at the Supreme Court. As explained in Cato’s amicus brief, Crowe v. Oregon State Bar presents an opportunity for the Supreme Court to lay to rest the notion that a person may be forced to fund, and therefore implicitly endorse, speech or activities with which she may vehemently disagree.

Stepping back from nuanced arguments over First Amendment standards, these cases give the country an opportunity to reflect on the values underpinning our Constitution. At a time when ideological divisions grow more divisive, lawyers should be the first to stand up and denounce the forced subsidization of politically charged messages that do little, if anything, to assist in regulating the legal profession. Our bandwidth for debate over important public issues diminishes the more we feel forced into bankrolling positions we disagree with.

There is no doubt that these suits will continue to emerge as more lawyers recognize the necessity of taking a stand for associational and free speech rights. Janus was an important first step toward providing the public proper First Amendment protections in the workplace, and Crowe would continue the Supreme Court’s positive trend of affirming that workers should not be forced to choose between losing their livelihood or submitting to another person’s ideological speech.