May 28, 2020 12:51PM

Trump’s Social Media Order Rewrites Internet Law by Decree

Author’s Note: This post originally concerned a draft executive order. What follows is a discussion of the final order. The original analysis can be found below that.

Yesterday, I wrote about a draft of the President’s executive order, which he went on to sign in the afternoon. The White House released a final version of the order last night. It differs significantly from the draft in verbiage, though not in effect.

In some instances, the language has been watered down. However, crucially, the final order contains the same unsupported contention that the protections offered by 230 (c)(1) are contingent upon platforms moderating in accordance with some stricter understanding of (c)(2)(A).

It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that — far from acting in “good faith” to remove objectionable content — instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.

It is the policy of the United States that the scope of that immunity should be clarified: the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.

In some ways, these claims are more limited than those in the draft. However, the “distortion” and “extension” of Section 230 described in the final order is, in fact, the longstanding, textually supported reading of the law. As I outlined yesterday, (c)(1) and (c)(2)(A) protections are separate. It is not an extension of the law to apply them separately, and any “clarification” otherwise would amount to an amendment.

Confusingly, the final order contains a paragraph that might more strongly assert a connection between the first and second subsections; however, the second time it refers to (c)(2)(A), it does so in a context in which only (c)(1) would make sense:

When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.

The liability faced by traditional publishers, which prescreen material rather than moderating ex‐​post, is foreclosed by (c)(1), not (c)(2)(A). If, as is likely, this line was meant to reference (c)(1), the order more stridently misinterprets Section 230. The protections offered by the first and second subsections are entirely separate, making the President’s directive to NTIA, instructing them to petition the FCC to examine connections between (c)(1) and (c)(2)(A), facially absurd.

… requesting that the FCC expeditiously propose regulations to clarify: (i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher

There are no circumstances under which a provider that restricts access in a manner unprotected by (c)(2)(A) loses (c)(1) protections. (c)(1) protections are lost when a platform authors content, making it the platform’s content rather than that of a third party. (c)(1) is not in any way contingent on (c)(2)(A). The order invites the FCC to make a miraculous discovery completely at odds with settled law or return a pointless null result.

Finally, the order directs the FTC to investigate platforms for moderating in a manner inconsistent with their stated terms of service:

The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce … Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.

Platform terms of service or community standards are not binding contracts. They lay out how a platform intends to govern user speech but often change in response to new controversies, and automated moderation at scale is frequently imprecise. In light of Trump’s recent personal spats with social media firms, any subsequent FTC action may appear politically motivated.

In sum, the order makes a number of sweeping, unfounded claims about the breadth and intent of Section 230. The declarations of government policy are concerning: “all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section.” However, the administration’s proposed interpretation is so at odds with a plain reading of the statute and controlling precedent that courts are unlikely to uphold decisions based on this official misinterpretation.

The order’s substantive elements require action on the part of the FCC and FTC. Their response will largely determine the order’s scope and effect. The FCC could nonsensically determine that (c)(1) had been contingent on (c)(2)(A) all along and the FTC could aggressively pursue tech firms for moderation inconsistent with their terms of service but, given the likelihood of judicial resistance, a hard‐​charging response is improbable. Like so much else from the Trump administration, it may turn out to be another order full of sound and fury that ultimately delivers nothing in the way of substantive change. Nevertheless, even if the order is ineffective, it represents a worrying belief that the President can twist and reinterpret even long‐​settled law to fit his political agenda.


President Trump has escalated his war of words with America’s leading technology firms. After threatening to “close down” social media platforms, he announced that he would issue an executive order concerning Section 230 of the Communications Decency Act, a bedrock intermediary liability protection for internet platforms. However, a draft of the forthcoming executive order seems to slyly misunderstand Section 230, reading contingency into its protections. Let’s take a look at the statute and the relevant sections of the proposed executive order to see how its interpretation errs.

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

  1. any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

or

  1. any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The statute contains two parts, (c)(1) and (c)(2). Subsection (c)(1) prevents providers of an “interactive computer service,” be they Twitter, or a blog with a comments sections, from being treated as the publisher of their users’ speech. 230 (c)(2) separately addresses providers’ civil liability for actions taken to moderate or remove content.

The executive order obfuscates this distinction, presenting (c)(1) as contingent on (c)(2). The EO contends that “subsection (c)(2) qualifies that principle when the provider edits content provided by others.” This is simply incorrect. Subsection (c)(2) protects platforms from a different source of liability entirely. While the first subsection stops platforms from being treated as the publishers of user speech, (c)(2) prevent platforms from being sued for filtering or removal. Its protections are entirely separate from those of (c)(1); dozens of lawsuits have attempted to treat platforms as the publishers of user speech, none have first asked if platforms’ moderation is unbiased or conducted in good faith. Even if a provider’s moderation were found to breach the statute’s “good faith” element, it would merely render them liable for their moderation of the content in question, it wouldn’t make them a publisher writ large.

The executive order makes its misunderstanding even more explicit as it orders the various organs of the federal government to similarly misinterpret Section 230.

When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. By making itself an editor of content outside the protections of subparagraph (c)(2)(A), such a provider forfeits any protection from being deemed a “publisher or speaker” under subsection 230(c)(1), which properly applies only to a provider that merely provides a platform for content supplied by others. It is the policy of the United Sates that all departments and agencies should apply section 230(c) according to the interpretation set out in this section.

The order goes on to direct the National Telecommunications and Information Administration to petition the FCC, technically an independent agency, to promulgate regulations determining what sort of moderation breaches the good faith aspect of (c)(2), and, according to the administration’s erroneous reading of the statute, triggers the forfeiture of (c)(1) protections against being treated as a publisher.

Clearly, none of this is actually in Section 230. Far from expecting websites to “merely provide a platform,” (c)(2)(A) explicitly empowers them to remove anything they find “otherwise objectionable.” Our president seems to have decided that Section 230(c)(1) only “properly applies” to social media platforms that refrain from responding to his outlandish claims. Republicans might want to amend Section 230 so that it only applies to conduit‐​like services, however, any attempt to do so would face stiff opposition from democrats who want platforms to moderate more strictly. Like Obama before him, President Trump may have a pen, but he cannot rewrite statutes at will. As drafted, his order’s reasoning is at odds with congressional intent, a quarter century of judicial interpretation, and any reasonable reading of the statute’s plain language.

May 27, 2020 9:51PM

George Floyd’s Death Must Be a Catalyst for Accountability

The scene is horrifying, yet all too familiar. In a viral video from Minneapolis on Monday, a white police officer presses his knee against the neck of a handcuffed, unresisting black man who begs him to get off, then loses consciousness and later dies. Meanwhile, another officer stands guard between his partner and protesting onlookers, ensuring that no one can come to the aid of the dying man. The man’s name is George Floyd, and he is the latest victim of our near‐​zero‐​accountability policy for law enforcement.

On Thursday, May 28, the Supreme Court can decide whether to take the first step towards eliminating the cornerstone of that policy, a judicially invented legal doctrine called “qualified immunity.” Mr. Floyd’s killing by Minneapolis police provides a grim reminder that for some people, it is literally a matter of life and death. 

Enacted in 1871 and referred to as Section 1983 after its placement in the U.S. Code, America’s primary civil rights law provides that police and other state actors “shall be liable” to the person injured for “the deprivation of any rights.” On its face, Section 1983 creates a standard of strict liability for police and other public officials who violate people’s constitutional rights, including the right to be free from the unreasonable use of force. But in a tragic and legally baseless act of judicial policymaking, the Supreme Court radically altered that standard by holding that the right in question must be “clearly established.” And thus was born the doctrine of qualified immunity. 

In practice, what the “clearly established” gloss on Section 1983 requires is for would‐​be civil rights plaintiffs to identify a relevant case in the same jurisdiction with nearly identical facts. Thus, if Mr. Floyd’s family wants to sue the officer who took his life, they will need to find an existing case from the Eighth U.S. Circuit Court of Appeals holding that a police officer may not kneel on a unresisting suspect’s neck, ignoring his pleas for help, until he passes out. If no such case happens to be on the books, their case will be summarily tossed out of court. Such is the perversity of the Supreme Court’s qualified immunity doctrine.

Among qualified immunity’s most pernicious effects is the way it appears to provide a judicial imprimatur for indisputably wrongful conduct, like bringing the full weight of one’s body to bear on the neck of a prone and helpless human being. Indeed, the Supreme Court recently let stand an Eighth Circuit decision dismissing, on qualified immunity grounds, a Section 1983 case against a Nebraska officer who picked up a five‐​foot‐​tall, unarmed woman clad only in a bathing suit and drove her head‐​first into the ground, knocking her unconscious and breaking her collarbone—not because it was lawful for him to do so, but rather because there happened to be no case on point with precisely those facts. 

This is madness. Fresh from the horrors of the Civil War, Congress was well aware of how indifferent and even hostile many government officials were to the rights of African Americans when it enacted Section 1983. There are ten qualified‐​immunity cases pending before the Supreme Court, which may decide Thursday whether to accept any of those cases for review and ensure that judicial interpretation of Section 1983 remains faithful to congressional intent. The senseless brutalization of George Floyd, along with countless others, reminds us that this is not just a legal but a moral imperative. 

May 27, 2020 4:08PM

Facts About the Summer Work and Travel Program

President Trump will be considering recommendations from his administration this week on which immigration programs to cancel during the economic recovery after the COVID-19 pandemic subsides. One program that immigration restrictionists in the administration will likely recommend cutting is the Summer Work and Travel Program (SWTP)—which is part of the J-1 exchange visa program—because it allows foreigners to work in the United States.

Summer Work and Travel Program rules

On its face, President Trump should like the SWTP. It fits his brand of “merit‐​based” immigration. Participants must be college students at foreign universities, be proficient in English, and generally have job offers already lined up in the United States. They are ineligible for all means‐​tested federal public benefits. The program even has requirements that students not work for employers who will replace U.S. workers or not pay them as much as U.S. workers.

U.S. nonprofit organizations sponsor students and arrange their housing and employment. The flow chart below from the Government Accountability Office provides a useful explanation of the program’s operations. Sponsors must receive permission from the State Department to sponsor students. The sponsors recruit foreign students to join their program in exchange for fees and find employers to offer jobs to them. The State Department handles oversight through its Bureau of Educational and Cultural Affairs, Kentucky Consular Center, and embassies or consulates abroad.

State Department Oversight Chart

Congress created the J visa category—of which the Summer Work and Travel Program is a part—in 1961 in the Mutual Educational and Cultural Exchange Act (Fulbright–Hays Act). The purpose of the legislation was “to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange” and by demonstrating “the achievements of the people of the United States and other nations, and the contributions being made toward a peaceful and more fruitful life for people throughout the world.”

Summer Work and Travel Program participation

The State Department has called the SWTP “a cornerstone of U.S. public diplomacy efforts for nearly 50 years.” Since 1987, more than 8.3 million people have received J-1 exchange visitor visas—about 2.3 million of these visas have come under the Summer Work and Travel Program. The program peaked in 2008 with 152,726 participants. In 2011, the State Department introduced a program cap of 109,000—the number of participants that year—which it has maintained through 2020. Because it also stopped allowing any new sponsors, the number of total participants declined to less than 90,000 in 2013 before averaging about 105,000 in recent years.

With 7,001, Ireland was the most common country of origin for Summer Work and Travel Program participants in 2015—the only year for which that information is publicly available. The rest of the top 5 included Bulgaria, China, Romania, and Ukraine, each with more than 5,000.

In the most recent year available in 2018, the state with the most SWTP participants in absolute terms was New York with 6,950. Massachusetts, Wisconsin, Colorado, and California fill out the Top 5. These states represent 30 percent of the total SWTP participants in 2018.

Summer Work and Travel Employment

The original purpose of allowing employment under the cultural exchange program was that it allowed students from all backgrounds to visit the United States because a summer job could underwrite the cost of their time in the United States. The SWTP students generally work seasonal summer jobs in places like Ocean City in Maryland, Long Island in New York, and Mackinac Island in Michigan. The students work and experience normal U.S. life for the average college student on summer break, returning to their home countries with a generally positive experience.

In 2015, Disney was the largest SWTP employer with 2,355 workers. The other top 5 employers were Cedar Fair Parks, McDonald’s, Six Flags, and Xanterra Parks and Resorts. Figure 3 shows the distribution by employment sector. By far the largest employment sector was leisure and hospitality with 53,237 workers. Arts, entertainment, and recreation was second with 17,950.

Critics of the program contend that J-1 visa holders increase unemployment among young U.S. workers, but they present little, if any, evidence beyond their mere presence. Figure 4 shows that only one other year had a lower youth unemployment rate than 2019 since the creation of the J-1 visa program. From 1996 to 2019, the lowest unemployment rate on record was in 2019, despite the Summer Work and Travel Program increasing about fivefold from 22,000 in 1996 to about 105,000 last year. Obviously, the unemployment rate is much higher right now, but the cause of that unemployment is the response to the pandemic, not immigration. When the pandemic disappears, the unemployment rate will disappear along with it.

The fact is that SWTP workers support jobs for U.S. workers. Even an entirely one‐​sided anti‐​SWTP article based around a single anecdote relays how one SWTP worker at a restaurant in Maryland worked “back of the house jobs,” which supported U.S. workers who filled “server positions that came with better pay and tips.” Unfortunately, this disparity created resentment, but the vast majority of SWTP workers report positive experiences because they are happy to work with Americans in whatever capacity.

Many employers rely on J-1 visas to support essential operations of their businesses. When the Trump administration suddenly increased J-1 visa denials last year, some businesses in Ocean City, Maryland had cut their operations. “We reduced our hours which in exchange has reduced our business,” said Anna Dolle Bushnell, the co‐​owner of Dolle’s Candyland in Ocean City. “So May wasn’t so great. It could have been a fantastic month, but we just weren’t able to keep our stores open simply because we don’t have enough staff.”

A report funded by the SWTP sponsors calculated that the program contributes to the United States about $500 million annually. This seems like a reasonable estimate, if not actually a bit low today. It works out to about $4,800 per participant. Assuming that the average worker works a normal workday for 3 months, that would be just $9.25 per hour, lower than many states minimum wages.

Rights Under the Summer Work and Travel Program

Union‐​funded organizations are attempting to undermine the SWTP because the foreign students don’t stay long enough to join a union and pay union dues. They fund organizations like the National Guestworker Alliance (NGA) to turn foreign students against their employers by promising them that they can receive more money from lawsuits and formal complaints. In the most popular story along these lines, NGA recruited a dozen of 385 students working at a Hershey’s packing plant in Pennsylvania to join a 2011 complaint alleging workplace violations including “heavy lifting” and “low” wages—despite the wages being above the state minimum wage.

In this supposedly “egregious” case cited in almost every piece of anti‐​SWTP propaganda, NGA managed to recruit only 3 percent of Hershey’s students, complaining only days before leaving the country on the promise of receiving additional compensation. But the complaint had no merit. As one student put it in a statement to the State Department, “I disagree with the actions of these students. We knew everything beforehand. The job offer and description were clearly written… We have the right to choose a job, and if they did not like it, [they] should have chosen something else.”

In fact, the sponsor did find new jobs for the ten students who did decide to leave the Hershey jobs and cooperated with its job search. Another student at the plant said she was “ashamed” of the protesting students. Indeed, the State Department’s investigators found several students who came to the Hershey plant a second time the following year, despite the supposedly inhumane conditions.

Under the SWTP rules, workers can leave their jobs or request new ones at any time. This is quite different from temporary worker programs that have rules preventing the easy transition between jobs. In 2011, the State Department imposed new detailed rules that exclude many job opportunities from the program including hazardous jobs.

Conclusion

In 2011, responding to the Hershey controversy, the State Department suspended all growth in the program, creating a de facto cap of 109,000. On March 19, 2020, the State Department suspended the program entirely for 60 days. Unfortunately, this cap and suspension could provide bases for the Trump administration to further restrict the program. There is absolutely no reason during the economic recovery. The U.S. unemployment situation will resolve itself naturally when the pandemic subsides. Both Americans and foreign workers are sidelined now, but the recovery should not be injured by pointless visa restrictions.

May 27, 2020 12:43PM

State Government Cuts and the Economy

A Wall Street Journal news article by David Harrison claims, “State and local government spending and employment levels didn’t fully recover from the 2007-09 recession until last fall, a decade after the downturn ended and only a few months before the coronavirus led to a new round of cuts.” The article reiterates, “Public spending and employment didn’t return to their previous peaks until last fall.”

With regard to spending, those statements are in error and the WSJ should run a correction.

Figure 1 shows total state and local government spending from Bureau of Economic Analysis national income Table 3.3 in raw or nominal dollars. Spending grew during the 2000s, hit $2.4 trillion in 2009 and flat‐​lined for a few years, then began growing again to reach $3.1 trillion by 2019.

a

The WSJ was likely referring to real or inflation‐​adjusted spending, but the article does not say that. In Figure 2, I’ve converted spending to 2019 dollars using BEA’s state‐​local deflator. Real spending spiked in 2009 and then dipped a bit below the pre‐​recession level. Spending then began growing again and eclipsed the 2009 peak by 2016.

a

The WSJ article includes a chart showing state‐​local government employment dipping from a 2009 peak of 19.8 million to a trough of 19.1 million, then rising to 19.9 million earlier this year. The government workforce was thus trimmed 4 percent before expanding again. Why is that a big deal? Why shouldn’t governments tighten their belts during slowdowns just as individuals and businesses do?

Over the longer term, shouldn’t governments be improving their productivity to provide services at lower costs with fewer workers? Shouldn’t computer advances be making, for example, policing more efficient allowing us to shrink police department bureaucracies? The private sector continually strives to do more with less and improves its productivity steadily over time.

News stories in the Wall Street Journal often tilt Keynesian. Higher government spending is presented as helping the economy, while spending restraint harms it. The state budget story quotes a Harvard economist claiming that the economy gains up to $2 for every $1 of state spending—the WSJ calls this a “principle.” But it’s not a principle, it’s a theory. An alternative theory—which the reporter should have noted—is that there is no free lunch, that government spending results in harmful extractions from the private sector and overall reductions in GDP.

The WSJ story quotes Fed chairman Jerome Powell saying, “We have the evidence of the global financial crisis and the years afterward where state and local government layoffs and lack of hiring did weigh on economic growth.”

Powell is being naive. I suspect he is thinking about state‐​local government output or valued‐​added portion of GDP (in Table 1.1.5). He’s implying that if that portion isn’t growing, then GDP must fall. But that is one‐​sided accounting. State‐​local governments fund their GDP portion by taking resources from the private sector, so if the state‐​local portion is cut, then more resources stay in the private sector and support private‐​sector expansion.

(In referring to “spending,” the WSJ story is probably also referring to government output or value added. But that is only a portion of total state‐​local government spending).

The real issue is whether resources add more value in the government sector or the private sector at the margin. If state‐​local cuts eliminate low‐​value activities allowing resources to be used for higher‐​value private activities, then the cuts that Powell worries about would add to GDP, not reduce it. If state governments hire more computer experts to code expanded subsidy programs, those experts are not available to help private high‐​tech firms expand.

To sum up, news stories in the WSJ and elsewhere often assume that government spending grows the economy and they quote Keynesian analysts supportive of that theory. Many reporters and analysts seem to naively assume that since government value‐​added is a component of GDP, then government cuts automatically reduce GDP. But that ignores where governments get their resources—the private sector. Generally, when governments expand, the private sector contracts.

What is the proper size of government to maximize GDP? That is a complex question because we cannot rely on markets to discover the answer, as we can for, say, the proper size of the beer industry in GDP. We don’t know the marginal value of adding dollars for public schools and fighter jets versus leaving the dollars in the private sector to fund car manufacturing and wheat production. But we do know that there is a trade-off—that there is no free lunch as news stories on government spending often assume.

These issues of proper government size are discussed in this study.

Reasons against federal bail‐​outs of state and local governments are discussed here.

May 27, 2020 10:44AM

House GOP Lawsuit Is Symptomatic of What Ails the People’s Body

Yesterday, Republicans in the House of Representatives sued Speaker Nancy Pelosi over H. Res. 965, a recent rules change that allows lawmakers to vote remotely during the COVID crisis.

In the complaint, the House GOP alleges that such “proxy” voting is unconstitutional.

Legally speaking, I strongly suspect the House GOP’s case is a loser. Proxy voting is unprecedented, but so are the circumstances, and the Constitution leaves congressional procedures up to the House and Senate, respectively. Here, courts have no role to play. The complaint is likely to be dismissed.

Setting aside the lawsuit’s crummy prospects, what about the politics of the matter? Those, too, are crummy for House Republicans.

On its face, H. Res. 965 seems eminently reasonable. The resolution reflects the same sort of operational planning conducted by myriad businesses, non‐​profits, and government agencies in response to the ongoing public health emergency. Furthermore, the change is temporary and can be cut short.

Capitol Hill, like all of D.C., is under a stay‐​at‐​home order through at least June 8th, and travel is hazardous. Under the circumstances, existing House rules didn’t work. Something had to be done. The alternative was the continued idling of the House. 

Before opposition to proxy voting became the party line, House Republicans recognized the necessity of remote working procedures. Consider Rep. Liz Cheney’s about‐​face. On April 29th, she urged Speaker Pelosi to consider a “plan to allow the House to operate or function remotely” because “paralyzing the People’s House at a moment of national crisis is unacceptable.” Yesterday, however, Rep. Cheney was among the named plaintiffs challenging the very idea she had just supported!

In a floor speech opposing H. Res. 965, Minority Leader Kevin McCarthy complained that the resolution “disconnect[s] [the House] from the American people.” Yet only weeks before, he had worked with Speaker Pelosi to pass a $2 trillion stimulus—the largest ever spending bill—by unanimous consent, which involves an opaque vote and is typically reserved for ultra‐​anodyne legislation. When Rep. Thomas Massie threw a monkey wrench into McCarthy’s plans, the House GOP caucus was outraged. It’s tough to square these recent events with McCarthy’s stated opposition to H. Res. 965.

In sum, the House Republicans’ legal and political arguments against proxy voting don’t hold water.

So, what’s actually going on here?

Here’s the sad truth: In today’s dysfunctional Congress, the House GOP has every incentive to prefer a shuttered shop.

As I’ve explained elsewhere, power in the contemporary Congress has become concentrated in leadership of the majority party in either chamber. Especially in the House, the minority party has no say in the legislative agenda.

Nor do House Republicans have any desire to perform oversight. In large part due to the centralization of power I just mentioned, modern lawmakers give priority to party over Congress as an institution. In practice, this means that lawmakers lose interest in overseeing the law’s execution whenever “their guy” sits in the Oval Office.

The upshot is that House Republicans have no hand in lawmaking, and they have no will to oversee a Republican president. They’re not irrational to oppose H. Res. 965; instead, they’re responding to the perverse incentives at work in today’s Congress.

To be clear, the Republicans aren’t doing anything the Democrats wouldn’t do were the shoe on the other foot. The forces at play are structural, in that they emanate from institutional changes in Congress over the last four decades—namely, the concentration of authority in the leadership of two highly polarized parties.

May 26, 2020 4:36PM

California’s Anti‐​Freelancer Law Violates the First Amendment

On January 1, 2020, California Assembly Bill 5 (AB 5) went into effect, drastically curtailing Californians’ freedom to work on their own terms as freelancers. The law, which was written by the AFL-CIO, presents many freelancers in the state with only two options: find a permanent employer willing to hire you or find a new line of work. Ostensibly designed to help Uber and Lyft drivers, the law has drastically affected millions of workers in the state. Recently, a ballot initiative creating an exception for Uber and Lyft qualified for the November election.

The law doesn’t apply to everyone evenly, though. Among a labyrinthine mishmash of exceptions is one for contracts for “professional services.” This exception applies to 11 different types of services, the majority of which concern speech protected by the First Amendment. But the limitations placed on the various categories of speech are unequal. While freelancers may provide fine art, marketing, and graphic design services without limitation, freelance journalism and photojournalism (newspaper cartoons included) are subject to unique limitations. Workers cannot make more than 35 submissions per publisher per year that qualify as journalism or photojournalism, and freelance photojournalists may not make any video submissions whatsoever.

The American Society of Journalists and Authors (ASJA) and the National Press Photographers’ Association (NPPA) filed suit challenging the law, and for good reason: subjecting categories of speech such as journalism and photojournalism to harsher restrictions than services such as marketing or fine art is not only arbitrary and harmful, it’s unconstitutional.

The case is now before the Ninth Circuit where Cato, joined by the Reason Foundation and the Individual Rights Foundation, has filed a brief in support of the journalists. We argue that the trial court’s decision to dismiss the case is inconsistent with the First Amendment and with the Supreme Court’s decision in Reed v. Town of Gilbert.

In Reed, the Court made clear that laws restricting speech on the basis of content are presumptively unconstitutional and must clear the high bar of strict scrutiny review. Content‐​based restrictions are those that require examining the content of a communication. A law banning certain song lyrics is content based, but a law banning playing music too loud is not. California wants to evade strict scrutiny by using the complexity of AB 5 to its advantage, obfuscating the way the law works in an attempt to change a content‐​based restriction into a “speaker‐​based,” content‐​neutral one. As Reed made clear, however, “speaker‐​based” restrictions can still be content based and terming a restriction on speech as “speaker‐​based” is frequently a cover for controlling speech based on content. Such is the case here.

What distinguishes speech categorized as marketing or fine art from speech categorized as journalism or photojournalism? The content, of course. And when a law targets speech based on content, the law is unambiguous: strict scrutiny applies. California’s argument is inconsistent with Reed, Reed’s applications in courts around the country, and with its own law. We are therefore asking the Ninth Circuit to join its sister circuits in affirming that Reed is the law of the land and grant journalists their day in court.

May 26, 2020 3:16PM

The Evolution of “Building a Modern Military”

Any entity seeking to have an impact on the course of foreign policy in Washington D.C. should have an orientating position paper--a take on the currents of national strategy. All too often the national security community has ceded the intellectual ground to policymakers and professors alike. One camp might give us evidence for action with little context for implementation (the academics). Another may give us a desired means of achieving a goal, but little consideration for feasibility (policymakers). In Building a Modern Military, released on May 26, 2020, the Cato Institute’s defense and foreign policy team seeks to provide an orientating guide to the future of U.S. national security policy with a strong concern for feasibility and the implementation of our ideas.

We began work on Building a Modern Military in the summer of last year. The goal was to produce a yearly budget analysis document. Over time this project evolved into so much more. While the budget is a big part of our project, we are more concerned with overall strategy and the strategic challenges that might upset United States’ standing in the world.

Read the rest of this post »