Topic: Law and Civil Liberties

Supreme Court to Slants: Rock On!

In a unanimous judgment that splintered on its reasoning, the Supreme Court correctly held that the “disparagement clause” of the Lanham Act (the federal trademark law) violated the Constitution. The ruling boils down to the simple point that bureaucrats shouldn’t be deciding what’s “disparaging.”

Trademarks, even ones that may offend many people—of which plenty are registered by the Patent and Trademark Office (PTO)—are private speech, which the First Amendment prevents the government from censoring. As Justice Samuel Alito put it in a part of the opinion that all the justices joined (except Neil Gorsuch, who didn’t participate in the case), “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.”

At this point, the Court split. Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Breyer, explained why trademarks don’t constitute a subsidy or other type of government program (within which the government can regulate speech), and that the “disparagement clause” doesn’t even survive the more deferential scrutiny that courts give “commercial” speech. The remaining four justices, led by Justice Anthony Kennedy, would’ve ended the discussion after finding that the PTO here is engaging in viewpoint discrimination among private speech. The end of his opinion is worth quoting in full:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

Fundamentally, this somewhat unusual case brought by an Asian-American electronic-rock band shows that government can’t make you choose among your rights. The Lanham Act’s disparagement clause placed an unconstitutional condition on those who consider the use of an edgy or taboo phrase to be part of their brand: either change your name or be denied the right to use it effectively. Whether you’re a musician, a politician, or a sports team—the Washington Redskins’ moniker will now be safe—it’s civil society (consumers, voters, fans) who should decide whether you’re being too offensive for polite company.

For more, see my previous writings here and here—and of course reading Cato’s “funny brief” is all the sweeter after this ruling.

Jeff Sessions Misunderstands Drugs and Crime

Attorney General Jeff Sessions writes in Sunday’s Washington Post:

Drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun. 

Sessions correctly understands a major source of crime in the drug distribution business: people with a complaint can’t go to court. But he jumps to the conclusion that “Drug trafficking is an inherently violent business.” This is a classic non sequitur. It’s hard to imagine that he actually doesn’t understand the problem. He is, after all, a law school graduate. How can he not understand the connection between drugs and crime? Prohibitionists talk of “drug-related crime” and suggest that drugs cause people to lose control and commit violence. Sessions gets closer to the truth in the opening of his op-ed. He goes wrong with the word “inherently.” Selling marijuana, cocaine, and heroin is not “inherently” more violent than selling alcohol, tobacco, or potatoes. 

Most “drug-related crime” is actually prohibition-related crime. The drug laws raise the price of drugs and cause addicts to have to commit crimes to pay for a habit that would be easily affordable if it were legal. And more dramatically, as Sessions notes, rival drug dealers murder each other–and innocent bystanders–in order to protect and expand their markets. 

Homicide rates 1910-1944

We saw the same phenomenon during the prohibition of alcohol in the 1920s. Alcohol trafficking is not an inherently violent business. But when you remove legal manufacturers, distributors, and bars from the picture, and people still want alcohol, then the business becomes criminal. As the figure at right (drawn from a Cato study of alcohol prohibition and based on U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970 [Washington: Government Printing Office, 1975], part 1, p. 414) shows, homicide rates climbed during Prohibition, 1920-33, and fell every year after the repeal of prohibition. 

Tobacco has not (yet) been prohibited in the United States. But as a Cato study of the New York cigarette market showed in 2003, high taxes can have similar effects:

Over the decades, a series of studies by federal, state, and city officials has found that high taxes have created a thriving illegal market for cigarettes in the city. That market has diverted billions of dollars from legitimate businesses and governments to criminals.

Perhaps worse than the diversion of money has been the crime associated with the city’s illegal cigarette market. Smalltime crooks and organized crime have engaged in murder, kidnapping, and armed robbery to earn and protect their illicit profits. Such crime has exposed average citizens, such as truck drivers and retail store clerks, to violence.

Again, to use Sessions’s language, cigarette trafficking is not an inherently violent business. But drive it underground, and you will get criminality and violence. 

Sessions’s premise is wrong. Drug trafficking (meaning, in this case, the trafficking of certain drugs made illegal under our controlled substances laws) is not an inherently violent business. The distribution of illegal substances tends to produce violence. Because Sessions’s premise is wrong, his conclusion–a stepped-up drug war, with more arrests, longer sentences, and more people in jail–is wrong. A better course is outlined in the Cato Handbook for Policymakers.

 

Betting on Freedom: The Federal Ban on States Legalizing Sports Gambling

Have you ever played fantasy sports for money? Have you ever participated in your office March Madness pool? Well, if you did, you may have broken federal law, which is quite ridiculous. If you’ve bet on your local jai alai match, though, that was probably safe.

In sports gambling, as is so often the case with many things, the law is not keeping up with our behavior and attitudes. There’s a growing movement to modernizing our gambling laws, including some new coalitions, such as the American Sports Betting Coalition (ASBC), and at least one case pending at the Supreme Court. That case, Christie v. NCAA, is a challenge to the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA). Cato supported the petition, which will be discussed by the justices next week. 

PASPA outlawed sports betting, with the exception of horse racing and jai alai (obviously), in most states. In classic, horse-trading style, carve outs were made for Oregon, Delaware, Montana, and Nevada. Even worse, the law prohibits states from “authorizing” sports gambling “by law,” which should be regarded as a violation of states’ rights protected by the Tenth Amendment—but the Third Circuit didn’t see it that way. The irony, of course, is that 44 states and 47 jurisdictions (D.C., U.S. Virgin Islands, and Puerto Rico) all have government-run lotteries, because evidently those governments are okay with gambling that benefits their budgets.

By overturning the restrictive federal ban on sports betting, states will be empowered to make their own decision about whether or not to allow it. If states were able to make their own laws about sports betting, areas where it is allowed could see economic growth sparked by increased tourism and an increase in betting-related jobs, as well as other industries springing up around this new frontier of economic possibility. Oxford Economics—one of the world’s leaders in global forecasting and quantitative analysis—has estimated that legal sports betting could add $14 billion to the national economy, generate up to $27 billion in total economic impact, and support 152,000 American jobs. In addition to these economic benefits, overturning such a ban would give states and local law enforcement the ability to oversee legal gambling, thus taking power from dangerous underground gambling rings. 

At its root, this is an issue of federalism; people in cities and towns across America should be able to decide for themselves if sports betting is something they want for their communities. Many of them do; nearly 7 in 10 Americans believe that the issue should not be left to the federal government, and 72 percent of avid sports fans support the legalization of sports betting. 

“Everyone Is Terrible”

That is the subject line from a friend’s email that passed along this story about the latest proposed escalation of the Drug War:

Congress is considering a bill that would expand the federal government’s ability to pursue the war on drugs, granting new power to the attorney general to set federal drug policy. 

My friend explained in a follow-up call that, as he started reading, he assumed the bill reflected Jeff Sessions’ passion for the Drug War, but he then realized the bill is bi-partisan insanity:

The bipartisan legislation, sponsored by powerful committee chairs in both chambers of Congress, would allow the attorney general to unilaterally outlaw certain unregulated chemical compounds on a temporary basis. It would create a special legal category for these drugs, the first time in nearly 50 years that the Controlled Substances Act has been expanded in this way. And it would set penalties, potentially including mandatory minimum sentences, for the manufacture and distribution of these drugs.

Hence my friend’s assessment that “everyone” is terrible (on drug policy).

This is an important point. Much discussion assumes liberals are more libertarian-leaning on drug policy than conservatives. This is partly right; liberals are more likely to favor marijuana legalization, for example.

But many liberals endorse marijuana legalization because they view marijuana as relatively benign, not because of a principled stance for freedom or a consistent understanding that prohibition of any substance almost certainly causes more harm than good. Thus politicians across the spectrum are indeed “terrible” on drug policy.

 

Of Guns and Immigrants

Free society came under attack twice this month, first when Islamists rammed a van into pedestrians and went on a knife-slashing rampage in the Southwark district of London, and then when a gunman opened fire on Republican lawmakers in the Del Ray neighborhood of Northern Virginia.

In both cases, police had barely begun their investigations when an American politician—first the Republican president, then a Democratic governor—seized on the carnage to advocate political causes via electronic media.

In the hours after the London attack, President Trump took to Twitter to push his administration’s proposed travel ban on people from several predominantly Muslim countries:

Then, in the first police briefing on the Del Ray shooting, Virginia Gov. Terry McAuliffe called for expanded gun control:

It’s reasonable for a politician to advocate policies that he thinks will reduce future recurrences of a fresh tragedy. However, Trump’s immigration proposals are supported by people who typically oppose McAuliffe’s gun control proposals, and McAuliffe’s are supported by people who typically oppose Trump’s. This is puzzling because the proposals themselves are remarkably similar: they would constrain individuals’ freedoms in an effort to improve public safety. So why do the two proposals get such different responses from different people?

It’s not that there’s a big difference in the risk to public safety posed by immigrants or guns. Both have proven to be harmful, in the sense that both immigrants and guns have caused violence. But the risk posed by the typical gun or immigrant is tiny.

School Inc. Under Attack: Milton Friedman, PBS, and the Quixotic Pursuit of “Balance” in Public Broadcasting

Our departed colleague Andrew Coulson spent the last years of his life producing School Inc., a wonderful and informative documentary about the possibilities of private, choice-based schooling. I highly recommend it. Amazingly, at least to me, PBS agreed to air the documentary, and in April it debuted on PBS stations around the country.

Unsurprisingly, a chorus of critics are angered that PBS would air such a program. Media Matters for America seems to call for the outright censorship of any critique of public education on public television by wondering, “why would a public broadcast channel air a documentary that is produced by a right-wing think tank and funded by ultra-conservative donors, and that presents a single point of view without meaningful critique, all the while denigrating public education?” Diane Ravitch, a prominent critic of private schools, complains that “uninformed viewers who see this very slickly produced program will learn about the glories of unregulated schooling, for-profit schools, [and] teachers selling their lessons to students on the Internet,” but “what they will not see or hear is the other side of the story.” Now a petition has been started calling for PBS to air “the other side” of the story by showing the anti-private school film Backpack Full of Cash.

I have nothing against showing the “other side” to Andrew’s series, but we need to put this debate in context. When it comes to PBS and the Corporation for Public Broadcasting, the “other side” that doesn’t get heard is usually the conservative or libertarian side, and CPB has generally been deeply antagonistic to those ideas. That Ravitch and others are now the ones complaining is at least somewhat ironic.

Crying “Coup,” Red and Blue

History hasn’t been kind to Alexander Hamilton’s hypothesis, in Federalist 68, that “there will be a constant probability of seeing the [office of the presidency] filled by characters pre-eminent for ability and virtue.” Still, he was spot-on in No. 65, when he predicted that impeachment debates would stoke partisan rancor, driving “pre-existing factions [to] enlist all their animosities, partialities, influence, and interest on one side or on the other.”

Impeachment talk started unusually early in the Trump administration, and seems likely to get louder as we go. So far it’s been an even richer source of hyperbole and hypocrisy than the judicial filibuster.

“Congress must begin impeachment proceedings immediately,” insists MoveOn.org, the activist group born in a 1998 campaign urging Congress to “Move On to pressing issues facing the country,” instead of impeaching Bill Clinton. They’ve lately developed an interest in presidential obstruction of justice, so today MoveOn would rather linger. Meanwhile, the American Spectator—the magazine that put itself on the map (and the Paula Jones lawsuit in play) with investigative reporting on Clinton’s sex scandals—already has a case of “impeachment fatigue.”The times are sour and ill-mannered enough without unnecessary strife over removal of a duly elected president of the United States,” William Murchison sniffs at the AmSpec site. 

As I noted in a piece for U.S. News earlier this week, the emerging refrain on the Right is that anyone who dares mention the “I-word” has thrown in with a vast left-wing conspiracy plotting “a coup attempt against a lawfully elected government.” That’s from Dinesh D’Souza, but Gary BauerTom TancredoBen SteinLou Dobbs, and Pat Buchanan are all singing from the same hymnal. If Trump is eventually brought down via impeachment, Buchanan charges, “this city will have executed a nonviolent coup against a constitutionally elected president.” 

In our last national debate over impeachment, the coup was on the other foot (sorry!). Congressional Democrats used the term liberally, railing against the GOP attempt to remove Bill Clinton for perjury and obstruction of justice. “A partisan coup d’etat,” cried Rep. Jerrold Nadler (D-NY); a “Republican coup d’etat,” echoed John Conyers (D-MI). Rep. Maxine Waters (D-CA) pronounced herself appalled by “the raw, unmasked, unbridled hatred and meanness that drives this impeachment coup d’etat, this unapologetic disregard for the voice of the people.’’

All three are, of course, still in Congress today, ready to weigh in Trump’s current predicament. Nadler has affirmed that “impeachment[’s] a possibility”; “Auntie Maxine” is leading the charge, and while it doesn’t appear that Conyers has used the “I-word” yet, it’s surely just a matter of time, given that he’s tried to impeach nearly every Republican president over his five-decade career, (while giving Democrats a pass for similar behavior).