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Preview: Jacob Sullum: Reason Magazine articles.

Jacob Sullum: Reason.com articles.





Updated: 2017-04-30T00:00:00-04:00

 



The Bipartisan Urge to Suppress Dissent

2017-04-26T00:15:00-04:00

The University of California at Berkeley's inhospitality to conservative speakers, the subject of a federal lawsuit filed on Monday, prompted a Twitter rebuke from President Trump a few months ago. Yet his administration seems determined to demonstrate that suppression of opposing views is a bipartisan impulse. Berkeley College Republicans (BCR), which invited conservative commentator Ann Coulter to speak on campus this Thursday evening, and Young America's Foundation (YAF), which underwrote her visit, argue that Berkeley's vague, unwritten policy regarding "high-profile speakers" unconstitutionally discriminates against unpopular viewpoints. As a result of that policy, which was adopted after violent protests prompted the university to shut down a February 1 appearance by former Breitbart News editor Milo Yiannopoulos, Berkeley canceled Coulter's speech, then offered to reschedule it for next Tuesday afternoon, in the middle of the "dead week" between classes and exams. BCR says it felt compelled to cancel an April 12 talk by another conservative journalist, David Horowitz, after the university insisted that it take place at an inconvenient location and end by 3 p.m., meaning most students would be in class while Horowitz was speaking. BCR and YAF say the restrictions imposed by Berkeley in the name of public safety have not been applied to left-leaning speakers and amount to an "unlawful heckler's veto" that marginalizes conservative voices. After the Milo melee in February, Trump suggested on Twitter that Berkeley risks losing federal funds if it "does not allow free speech." If the president were sincerely committed to protecting First Amendment rights, he would issue similar warnings to the Department of Homeland Security (DHS), which recently demanded that Twitter reveal the identity of a DHS gadfly, and the Justice Department, which is considering criminal charges against people who share classified information leaked by others. Last month a special agent in charge at Customs and Border Protection (CBP), a division of DHS, issued a summons to Twitter seeking records that would unmask the person or persons behind @ALT_USCIS, an account that regularly criticizes the Trump administration's immigration policies. There did not seem to be any legal justification for the summons, which looked like a blatant attempt to intimidate critics. DHS dropped the summons the day after Twitter filed a lawsuit arguing that it threatened the First Amendment right to engage in pseudonymous political speech. Last week, in response to inquiries by Sen. Ron Wyden (D-Ore.), DHS Inspector General John Roth revealed that his office is investigating whether the CBP summons was "improper." The day before Roth expressed concern about government inquiries that might have "a chilling effect on individuals' free speech rights," CNN and The Washington Post reported that the Justice Department is once again looking for a way to prosecute WikiLeaks founder Julian Assange for sharing classified documents with the public. The Obama administration abandoned that project after concluding that charging Assange with violating the Espionage Act would create a precedent that could be used against any news organization that publishes stories based on "defense information" from sources who obtained or divulged it illegally—a very common journalistic practice. CIA Director Mike Pompeo says we shouldn't worry about that because Assange is not a real journalist, a debatable and constitutionally irrelevant point. The "freedom of the press" that is guaranteed by the First Amendment is not the freedom of people who work for officially recognized news outlets; it is the freedom to use technologies of mass communication. That freedom extends to everyone in the United States, whether or not he is a professional journalist or an American citizen. If Assange broke the Espionage Act by distributing classified material within the U.S., that means he used "the press" there. Trump, who declared "I love WikiLeaks!" when it was revealing embarrassing information[...]



Does Legalization Boost Teen Marijuana Use?

2017-04-20T06:00:00-04:00

When the National Survey on Drug Use and Health (NSDUH) indicated that marijuana use by teenagers in Colorado rose after the state legalized the drug for recreational use in 2012, prohibitionists trumpeted the results, even though the change was not statistically significant. Drug warriors were notably quieter when subsequent NSDUH data indicated that adolescent consumption in Colorado fell after state-licensed marijuana stores began serving the recreational market.

That change was not statistically significant either, underlining the uncertainty about the impact of legalization on underage consumption. It is plausible that legalization would increase adolescent use by making marijuana more socially acceptable (although probably not cooler) or by making it available from legal buyers 21 or older. But so far there is little evidence that is happening.

The Colorado Department of Public Health and Environment says cannabis consumption by teenagers in the state "has not changed since legalization either in terms of the number of people using or the frequency of use among users." That conclusion is based on data from NSDUH and the Healthy Kids Colorado Survey, which has a much larger sample of Colorado teenagers.

A study published in the February 2017 issue of JAMA Pediatrics covered yet another survey, the Monitoring the Future Study. University of California, Davis, epidemiologist Magdalena Cerdá and her colleagues looked at past-month marijuana consumption among eighth-, 10th-, and 12th-graders in the three years preceding legalization (2010–12) and the three years following it (2013–15). They compared trends in Colorado and Washington, where voters also approved legalization in 2012, to trends in the 45 contiguous states that did not legalize marijuana for recreational use during this period.

Cerdá et al. found no significant differences in Colorado or among high school seniors in Washington. But Washington eighth- and 10th-graders deviated from the national trend. Although the incidence of past-month marijuana use by eighth-graders did not rise significantly in Washington, it fell significantly in the other states. Past-month use among 10th-graders did rise significantly in Washington, from 16.2 percent to 20.3 percent, while falling in the rest of the country.

Assuming that the deviations among eighth- and 10th-graders in the Evergreen State have something to do with legalization, Cerdá et al. say, the mechanism is unlikely to be diversion from adult buyers, since state-licensed pot shops did not open there until July 2014, halfway through the post-legalization study period. But they argue that legalization may have changed attitudes in a way that encouraged adolescent use.

If so, it's a bit of a mystery why there is no evidence of this phenomenon in Colorado. But with only a few years of data to consider, the only safe conclusion is that it's too early to draw any conclusions.




Gorsuch Is More Liberal Than Garland

2017-04-19T00:01:00-04:00

Democrats are understandably bitter about the Republican intransigence that ultimately allowed Neil Gorsuch to take a seat on the U.S. Supreme Court this week. But for Democrats who care about civil liberties, Gorsuch is a better choice than Merrick Garland, the nominee Republican senators refused to consider after he was nominated by President Obama last year. Garland, who has served on the U.S. Court of Appeals for the D.C. Circuit since 1997, was frequently described as a "moderate" after Obama picked him to replace Justice Antonin Scalia, who died in February 2016. Garland earned that label mainly by siding with the government, sometimes in cases where conservatives liked the result and sometimes in cases where liberals did. Despite his reputation on the left as an authoritarian, Scalia defended the rights of the accused more consistently than some of his purportedly more liberal colleagues. And as SCOTUSBlog publisher Tom Goldstein noted, Garland is "to the right of Scalia on criminal justice issues." Gorsuch, who served for a decade on the U.S. Court of Appeals for the 10th Circuit, seems closer to Scalia in this area. Like Scalia, he is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense. Both tendencies were apparent in a 2015 case involving merchants charged with violating the Controlled Substance Analogue Enforcement Act by selling "incense" containing a synthetic cannabinoid. Even without delving into the "vagueness concerns" raised by the Analogue Act, Gorsuch said, it was clear the defendants had been improperly convicted because the jury instructions "effectively relieve[d] the government of proving each essential element specified by Congress." Gorsuch's concern about the proper application of criminal statutes was also apparent when he dissented from a 2016 decision in which the 10th Circuit upheld the arrest of a New Mexico seventh-grader who burped up a storm during P.E. class, to the amusement of his peers and the annoyance of his gym teacher. According to the New Mexico Court of Appeals, Gorsuch pointed out, the law under which the boy was charged, which makes "interfering with the educational process" a misdemeanor, "does not criminalize 'noise[s] or diversion[s]' that merely 'disturb the peace or good order' of individual classes." Another 2016 dissent shows that Gorsuch shares Scalia's respect for the zone of privacy protected by the Fourth Amendment. When the 10th Circuit said it was constitutional for police to ignore multiple "No Trespassing" signs on the property of a suspected drug dealer, Gorsuch criticized his colleagues for endorsing "an irrevocable right to enter a home's curtilage to conduct a knock and talk." Although progressives may be willing to concede that Gorsuch is preferable to Garland on criminal justice, they tend to view another contrast between the two judges with alarm. Gorsuch is more inclined than Garland (or Scalia) to question the authority of administrative agencies. While Goldstein found that Garland has "strong views favoring deference to agency decisionmakers," Gorsuch is a prominent critic of the Chevron doctrine, which gives agencies wide authority to resolve ambiguities in the laws they are charged with enforcing. Gorsuch sees excessive deference to executive-branch agencies as a threat to the separation of powers. It is also a threat to individual freedom. Giving one agency the power to interpret and rewrite the law as well as enforce it poses a clear threat to people at the agency's mercy, including the obscure and vulnerable as well as the rich and powerful—a point that progressives who view Chevron as an essential bulwark of the regulatory state have trouble recognizing. Prior to Gorsuch's confirmation, People for the American Way cited a 2016 decision as evidence that he would undermine the ability of regulators to "enforce critical laws, safeguard essential protections, and ensure the safety of the American peop[...]



Officer Feelgood, Meet the Constitution

2017-04-12T00:01:00-04:00

When Officer Cameron Burke pulled over Jenna Rodgers, a student at Warwick High School in Lititz, Pennsylvania, and told her she had exceeded the speed limit by 15 miles an hour, she was confused because she knew she hadn't. It turned out the traffic stop had been arranged by her boyfriend, Collin Kauffman, who approached her car holding a sign that said, "You're under arrest unless you say yes. Prom?" Whether Kauffman's promposal strikes you as charming or alarming will depend on your attitude toward police and the restrictions imposed on them by the Constitution. Although everyone involved thought it was all in good fun, Burke violated the Fourth Amendment by stopping Rodgers for no legal reason, and there are similar problems with other feel-good stunts involving cops and motorists. In a video posted last year by Halifax, Virginia, Police Chief Kevin Lands, a white cop walks up to a car he has just stopped and asks the driver, a black woman, "Are you aware of why I pulled you over today?" The puzzled driver replies, "No, sir." The cop asks her if she is "familiar with Vehicle Code 1739." She is not, so he explains that "it's actually against the law to drive on a hot day without an ice cream cone." The driver laughs, out of either relief or amusement. "Oh, my God!" she says repeatedly. Since viral videos of cops interacting with motorists usually involve abuses of power such as random searches, money grabs, bogus arrests, or the unjustified, occasionally fatal use of force, this episode may seem like a refreshing change. But it also involves an abuse of power, albeit one disguised by benign intentions. WSET, the ABC station in Lynchburg, reported that Halifax police stopped about 20 drivers in one day "to hand out ice cream instead of tickets." It made no mention of any traffic violations that might have justified the stops. Neither did the local CBS station. On Lands' Facebook page, where the video of the laughing motorist has been watched nearly 8 million times, he describes the drivers who got ice cream as "speeders," which suggests cops ended up ignoring traffic offenses that supposedly were serious enough to pull people over. In the video, there is no mention of any actual legal violation. Cops have wide latitude to stop vehicles, but that latitude is not unlimited. Such stops are "seizures" under the Fourth Amendment, and they must be "reasonable," which usually means there is reasonable suspicion of a traffic offense. A couple of years ago, the Macomb County, Michigan, sheriff's office pulled teenagers over and gave them gift cards as a reward for good driving. Those stops were clearly unconstitutional, since the teenagers were targeted for driving well—the opposite of a legal justification. In a 2014 video, a police officer in Lowell, Massachusetts, who gives a driver Christmas presents for her kids says he pulled her over for illegally tinted windows. In another video from the same year, a Covington, Louisiana, police officer gives a woman a $100 bill stamped "Secret Santa" after pulling her over, supposedly because she failed to stop completely at an intersection. The latter two examples would be deemed constitutional under the standard set by the Supreme Court, which says reasonable suspicion of a traffic violation makes a seizure legal even when it is not the real motivation for the stop. But these supposedly heartwarming interactions are still abuses of power. If police would not have stopped drivers for these minor violations unless they had gifts to hand out, they are deliberately inconveniencing people and causing them needless anxiety for the sake of a publicity stunt. The distribution of gifts is beneficent on the face of it, but it is a demeaning kind of beneficence given the inherently unequal relationship between a citizen and an armed agent of the state with the power to forcibly detain him. © Copyright 2017 by Creators Syndicate Inc. [...]



The Other Side of Legalized Theft

2017-04-05T00:01:00-04:00

During a meeting with county sheriffs in February, Donald Trump was puzzled by criticism of civil asset forfeiture, which all the cops in the room viewed as an indispensable and unobjectionable law enforcement tool. "Do you even understand the other side of it?" the president asked. "No," one sheriff said, and that was that. Trump might get a more helpful answer if he asked Rep. Jim Sensenbrenner (R-Wis.), who last week reintroduced a bill aimed at curtailing civil forfeiture abuses. As Sensenbrenner observed, "These abuses threaten citizens' Constitutional rights, put unnecessary burdens on innocent Americans, and weaken our faith in law enforcement." Civil forfeiture lets the government confiscate property allegedly linked to crime without bringing charges against the owner. Since law enforcement agencies receive most or all of the proceeds from the forfeitures they initiate, they have a strong financial incentive to loot first and ask questions never, which explains why those sheriffs were not eager to enlighten the president about the downside of such legalized theft. A new report from the Justice Department's Office of the Inspector General (OIG) highlights the potential for abuse. Between fiscal years 2007 and 2016, the OIG found, the Drug Enforcement Administration (DEA) took $4.2 billion in cash, more than 80 percent of it through administrative forfeitures, meaning there was no judicial oversight because the owners did not challenge the seizures in court. Although the DEA would argue that the lack of challenges proves the owners were guilty, that is not true. The process for recovering seized property is daunting, complicated, time-consuming, and expensive, often costing more than the property is worth. Consider Charles Clarke, a college student who in 2014 lost $11,000 in savings to cops at the Cincinnati/Northern Kentucky International Airport who said his suitcase smelled of marijuana. No contraband was found, and as is typical in such cases the allegations in the federal seizure affidavit were absurdly vague, merely asserting that the money had something to do with illegal drugs. Clarke, who admitted smoking marijuana but denied selling it, ultimately got his money back with interest. But it took two years, and it was possible only because the Institute for Justice represented him for free. Sensenbrenner's bill—which has 15 cosponsors, including House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and six other Republicans—would help forfeiture victims like Clarke by allowing them to recover attorney's fees after a settlement and providing legal representation for those who cannot afford it. Instead of requiring owners to prove their innocence (as the law currently demands), the bill would require the government to disprove it (as in a criminal trial). The bill also would increase the burden of proof in forfeiture trials from "preponderance of the evidence" to "clear and convincing evidence." Although civil forfeiture's defenders argue that it helps destroy drug trafficking organizations, the OIG found that the Justice Department "does not measure how its asset seizure and forfeiture activities advance criminal investigations." Looking at a sample of 100 cases where the DEA seized cash unaccompanied by drugs without a warrant, the OIG found that only 44 led to arrests, advanced existing criminal investigations, or prompted new investigations. "Without fully evaluating the relationship between seizures and law enforcement efforts," the OIG warns, "the Department cannot effectively assess whether asset forfeiture is being appropriately used, and it risks creating the impression that its law enforcement officers prioritize generating forfeiture revenue over dismantling criminal organizations." The report notes that the Justice Department's incuriosity about the circumstances and consequences of forfeitures also means it has little sense of "the extent to which seizures may present po[...]



Partially Informed Juries Convict the Innocent

2017-03-29T00:01:00-04:00

Early in the evening on October 1, 1984, Catherine Fuller, a 48-year-old mother of six, was robbed, sodomized with a foreign object, and beaten to death in a garage off an alley in Washington, D.C. After police concluded that Fuller had been attacked by a group of young men, prosecutors obtained two guilty pleas and eight convictions. Today the Supreme Court will hear an appeal by seven of those men, who argue that prosecutors violated their right to due process by withholding evidence that would have cast doubt on the government's allegations. The case shows why, more than half a century after the Court told prosecutors they have a constitutional duty to share evidence that might help defendants, prosecutors have little incentive to take that duty seriously. In the 1963 case Brady v. Maryland, the Court held that "suppression by the prosecution of evidence favorable to an accused…violates due process where the evidence is material either to guilt or to punishment." The Court later explained that evidence is "material" when there is "any reasonable likelihood that it could have affected the judgment of the jury." It seems clear that the evidence withheld from the men accused of attacking Catherine Fuller meets that standard. The suppressed evidence included, for example, information that would have further undermined the credibility of purported eyewitnesses who implicated the defendants. The jury, which deliberated for a week and acquitted two of the 10 defendants, evidently had trouble believing the government's witnesses, who contradicted themselves, each other, and the physical evidence. It is hardly a stretch for the defendants' lawyers to suggest that the jurors would have been even more skeptical if they had known one of the witnesses "was high on PCP while she met with investigators and identified photographs and suspects," that the same witness had asked a friend to lie about hearing a defendant's confession, or that the aunt of another witness contradicted his claim that he had told her about seeing the crime. Prosecutors also kept jurors from hearing the accounts of witnesses who were in the alley at the time of the attack but did not see a group of men. Even more egregiously, the government suppressed information about two plausible alternative suspects, including one who was convicted of robbing and assaulting two other middle-aged women in the same neighborhood within weeks of Fuller's murder. In 1992 that man "forcibly sodomized and beat to death a woman in an alley three blocks from where Mrs. Fuller had been found." By 2010 all but one of the surviving prosecution witnesses had recanted, saying they had been pressured into falsely implicating the defendants. A District of Columbia Superior Court judge nevertheless rejected the defendants' motion to vacate their convictions, a decision the District of Columbia Court of Appeals upheld in 2015. Amazingly, both courts concluded that the suppressed evidence, although favorable, was not material, which suggests how permissive that standard can be in practice. In a brief supporting the defendants' appeal, the Texas Public Policy Foundation argues that the "materiality" standard should be replaced with a presumption that withholding favorable evidence violates due process unless the government can show beyond a reasonable doubt that the omission did not affect the outcome. "For an unethical or indifferent prosecutor," the brief says, "a pretrial materiality requirement is an invitation to withhold favorable evidence." Even assuming the suppressed evidence later comes to light, the government in all likelihood will prevail on appeal: A 2014 study of "145 decisions in which prosecutors were found to have withheld favorable information" found that 86 percent deemed the evidence not material. "There is an epidemic of Brady violations abroad in the land," Alex Kozinski, then chief judge of the U.S. Court of Appeals for[...]



Trump Can't Stop Marijuana Legalization

2017-03-23T13:30:00-04:00

"The Trump administration can slow down marijuana legalization, but they can't stop it," says Reason senior editor Jacob Sullum.

Trump already endorsed medical marijuana on the campaign trail, and said that states should be free to legalize it, but his appointment of old school drug warrior Jeff Sessions as U.S. Attorney General is cause for concern.

"First of all, the federal government doesn't have the power to force states to make marijuana legal again," explains Sullum. While the Trump administration could sue to knock down state regulations, that would simply leave behind a legal but unregulated market. According to Sullum, the feds don't have the manpower to crack down on the local level, and there's very little upside for the administration to roll back legalization. "They can create a lot of chaos, but ultimately they're not going to reverse legalization and bring back prohibition."

Produced by Austin Bragg and Meredith Bragg
Edited by Austin Bragg

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Jeff Sessions' Terrible Truth About Drugs Is a Lie

2017-03-22T00:01:00-04:00

"Our nation needs to say clearly once again that using drugs will destroy your life," Attorney General Jeff Sessions declared last week. The main problem with that message: It isn't true. Yes, using drugs, both legal and illegal ones, can destroy your life, but typically it doesn't. By arguing that drug education should proceed from a false premise, Sessions reminds us what was wrong with the Just Say No propaganda he would like to revive. Sessions, a former senator who was the U.S. attorney for the Southern District of Alabama in the 1980s, looks back proudly at his efforts, alongside Nancy Reagan, to "create a hostility to drug use." For Sessions as for Reagan, tolerance is a dirty word. "We must create an atmosphere of intolerance for drug use in this country," the first lady wrote in a 1986 Washington Post op-ed piece. "Each of us has a responsibility to be intolerant of drug use anywhere, anytime, by anybody." Sessions likewise emphasizes the importance of "preventing people from ever taking drugs in the first place," even if "this may be an unfashionable belief in a time of growing tolerance of drug use." The "prevention" Sessions favors is not simply unfashionable; it is fundamentally dishonest. Among other things, Sessions said at a Senate hearing last April, prevention aims to teach teenagers that "good people don't smoke marijuana." According to the National Survey on Drug Use and Health, something like 118 million Americans have used marijuana, 36 million of them in the last year. Does Sessions honestly think all those people are bad, or that anyone would believe they are? "Educating people and telling them the terrible truth about drugs and addiction will result in better choices," Sessions says. But his terrible truth sounds a lot like a lie. Sessions claims marijuana is "only slightly less awful" than heroin, and in 2014 he strenuously objected after President Obama conceded that marijuana is less dangerous than alcohol. "I'm heartbroken," Sessions said. "It's stunning to me. I find it beyond comprehension." Judging from his response, Sessions literally did not comprehend Obama's point. Sessions tried to rebut Obama's statement about the relative hazards of marijuana and alcohol by declaring that "Lady Gaga says she's addicted to [marijuana] and it is not harmless." Let's put aside the merits of treating Lady Gaga as an expert on the effects of marijuana, or of extrapolating from this sample of one to the experiences of cannabis consumers generally. The most disturbing aspect of Sessions' argument was his failure to grasp that one substance can be less dangerous than another without being harmless. Saying marijuana is less hazardous than alcohol by several important measures—including impairment of driving ability, the risk of a fatal overdose, and the long-term damage caused by heavy use—is not the same as saying marijuana is 100 percent safe. Sessions not only has no patience for such nuance; he considers it a menace to the youth of America. Sessions is especially offended by the suggestion that marijuana legalization could reduce opioid-related harm by providing a safer alternative. "Give me a break," he said in a recent speech to the National Association of Attorneys General. "It's just almost a desperate attempt to defend the harmlessness of marijuana or even its benefits." Uncharacteristically, Sessions conceded that "maybe science will prove I'm wrong." If he bothered to research the subject, he would discover that several studies have found an association between medical marijuana laws and reductions in opioid prescriptions, opioid-related deaths, and fatally injured drivers testing positive for opioids. Sessions plainly is not interested in what the evidence shows. Although he says law enforcement officials have a duty to "speak truth as best we can," he seems to view truth as the enemy in the [...]






The Unjust, Irrational, and Unconstitutional Consequences of Pedophilia Panic

2017-03-15T06:00:00-04:00

"Sounds like you enjoy sex with kids," a reader tweeted at me after seeing a blog post I wrote about former Subway pitchman Jared Fogle. It was 2015, and Fogle had just signed a plea agreement in which he admitted to looking at child pornography and having sex with two 16-year-old prostitutes. "You also look like [a] pervert," the reader added. That's the sort of response you can expect if you write about the broad category known as "sex offenders" and suggest that not all of them are the same or that some of them are punished too severely. In this case, I had noted that the decision to prosecute Fogle under federal law, which had been justified by factors that had little or nothing to do with the gravity of his offenses, had a dramatic impact on the penalty he was likely to receive. Fogle ultimately was sentenced to nearly 16 years in prison, a penalty that was upheld by a federal appeals court in June. Had he been prosecuted under state law for the same actions, his sentence could have been as short as six months (the minimum penalty for possessing child pornography in Indiana, where Fogle lived) or as long as four years (the maximum penalty for an adult 21 or older who has sex with a 16-year-old in New York, where Fogle met the prostitutes). The arbitrariness of Fogle's punishment should trouble anyone who thinks fairness, consistency, and proportionality are essential to a criminal justice system worthy of the name. But the conjunction of two fraught topics—children and sex—makes it hard for people to think clearly about such matters. The fear and disgust triggered by this subject help explain why laws dealing with sex offenses involving minors frequently lead to bizarre results, including wildly disproportionate sentences, punishment disguised as regulation or treatment, and penalties for committing unintentional crimes, recording your own legal behavior, or looking at pictures of nonexistent children. Hidden Cameras Unlike Russell Taylor, who ran Fogle's charitable foundation, Fogle was not accused of producing child pornography. He was instead charged with looking at photographs and video of "minors as young as approximately 13–14 years" who were "secretly filmed in Taylor's current and former residences." According to the government's statement of charges, Taylor produced that material "using multiple hidden cameras concealed in clock radios positioned so that they would capture the minors changing clothes, showering, bathing, or engaging in other activities." He also gave Fogle a thumb drive containing "commercial child pornography" featuring minors as young as 6. Fogle "on one occasion" showed this material to "another person." That became the basis for a distribution charge, which was dropped as part of Fogle's plea agreement. Fogle's lawyers say that incident involved "one individual with whom [he] was then involved romantically, and it occurred in the confines of a locked hotel room." The voyeuristic material that Taylor produced did not involve sexual abuse of children. According to the charges, the guests caught on Taylor's cameras "did not know that they were being secretly filmed." Taylor's actions, which earned him a 27-year prison sentence, were obviously an outrageous invasion of privacy and breach of trust, and Fogle bears responsibility, at the very least, for allowing the secret recordings to continue by failing to report him. (Taylor, seeking leniency, claimed Fogle had actually encouraged him to install the cameras.) But what Taylor did is not the same as forcing children to engage in sexual activity, and what Fogle did is even further removed from such abuse. Under federal law, however, looking at child pornography can be punished as severely as sexually assaulting a child. Receiving child pornography, which could mean viewing a single [...]



Another Blow Against the Petty Tyranny of Blue Laws

2017-03-15T00:01:00-04:00

I am in Austin this week for the South by Southwest conferences, and I had planned to pick up some whiskey this Sunday before flying back home to Jerusalem, where brown spirits cost much more. Then a friend pointed out that my plan was not feasible in Texas, which is one of 11 states that still prohibit liquor sales on Sunday. Until recently there were 12 such states, but last week Minnesota Gov. Mark Dayton signed a bill allowing liquor stores to operate on Sundays. He thereby eliminated an arbitrary inconvenience that over the years has been justified in the name of piety, paternalism, and protectionism, none of which is a morally acceptable reason to use force against peaceful people. Minnesota's new law, which follows similar moves by 16 other states since 2002, takes effect on July 1. But Jim Surdyk, proprietor of Surdyk's Liquor & Cheese Shop in Minneapolis, did not wait to exercise his new freedom. He was open for business last Sunday, prompting a $3,500 fine and threats against his license. It is not hard to understand Surdyk's impatience. In the 159 years since Minnesota became the 32nd state, it has never deigned to let people buy packaged beer, wine, or liquor on Sunday. Minnesotans who wanted to have drinks at home on the Christian Sabbath had to plan ahead or make a run to neighboring Wisconsin, which has allowed Sunday sales since 1874. You might wonder whether it is constitutional to foist a religious day of rest on people who choose not to observe it. According to the Supreme Court, it is. The Court's reasoning highlights the petty tyranny of blue laws. In the 1961 case McGowan v. Maryland, seven department store employees challenged their criminal convictions for daring to sell people "a loose-leaf binder, a can of floor wax, a stapler, staples and a toy" on a Sunday. The Court rejected their argument that Maryland's blue law violated the First Amendment's ban on "an establishment of religion." "There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces," Chief Justice Earl Warren wrote in the majority opinion. But he added that "as presently written and administered, most of them, at least, are of a secular rather than of a religious character." Warren's secularization of Maryland's blue law was a bit of a stretch, given that the statute explicitly addressed "Sabbath Breaking" and repeatedly referred to the "Lord's day," demanding that people not "profane" it through inappropriate activities. But the chief justice argued that the state had a legitimate interest in promoting "the health, safety, recreation and general well-being" of its residents by mandating not only "a periodic respite from work" but "a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives might spend together." More recently this pious paternalism has given way to a nakedly protectionist argument. The main opponents of Sunday sales nowadays are independent liquor stores whose owners worry that competition will force them to work harder without guaranteeing a commensurate increase in revenue. "Small-business owners argued that allowing Sunday sales would stretch six days of purchases over seven days and increase their operating costs," the St. Paul Pioneer Press reports. "They also worried it would bring more chain and big-box stores," which "can undercut smaller stores on pricing." The point of banning Sunday sales, in other words, is not to protect consumers from themselves but to protect merchants from their competitors. High-handed promotion of "the general well-being" has been replaced by an open conspiracy against consumers. Jim Surdyk, the Minneapolis liquor retailer who dismayed city and state officials by selling on Sunday[...]



Trump Defends Due Process

2017-03-08T00:01:00-05:00

What do you call a regulation that summarily deprives law-abiding Americans of their Second Amendment rights without any evidence that they pose a danger to others? If you are a New York Times editorialist, you call it "sensible." That was the newspaper's take on a Social Security Administration (SSA) rule that Congress canceled with a bill President Trump signed last week. The objections aroused by the rule's demise show that its supporters do not understand it, do not value the constitutional right to arms, or both. The SSA rule would have blocked gun purchases by anyone who receives Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) benefits and who, because of a mental impairment, has been assigned a representative payee to handle the money. According to the SSA, such an individual has been "adjudicated as a mental defective" and is therefore prohibited from owning firearms by the Gun Control Act of 1968. But as the American Civil Liberties Union (ACLU) pointed out, "the determination by SSA line staff that a beneficiary needs a representative payee to manage their money benefit is simply not an 'adjudication' in any ordinary meaning of the word." The beneficiary has no right to a hearing where he could contest that determination with the help of a lawyer, as he would if a court were deciding whether he is legally competent or whether he should be committed to a psychiatric facility (another disqualifying criterion under the Gun Control Act). Furthermore, the ACLU noted, "the rule automatically conflates one disability-related characteristic, that is, difficulty managing money, with the inability to safely possess a firearm." In doing so, "it advances and reinforces the harmful stereotype that people with mental disabilities, a vast and diverse group of citizens, are violent." There is no evidence that the SSI and SSDI beneficiaries covered by the rule are especially prone to violence. The SSA conceded as much, saying, "We are not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence." Supporters of the SSA rule glided over the lack of due process, noting that beneficiaries could appeal the loss of their constitutional rights after the fact by trying to show they pose no threat to public safety. In other words, they would be presumed guilty unless they could prove themselves innocent, and in the meantime they would be deprived of the basic human right to armed self-defense. The rule's defenders also ignored its weak empirical basis. The Times simply asserted that letting disabled people with representative payees buy guns "poses an inordinate and needless risk to public safety," while a Bloomberg View editorial said "America's tragic experience with mentally ill gunmen―from Virginia Tech in 2007 to Newtown, Connecticut, in 2012—shows the folly of simply dismissing the danger." Neither of those killers would have been covered by the SSA rule. Many press reports misrepresented the rule's scope, saying it would affect a total of 75,000 people. The Obama administration estimated that the rule, applied prospectively, would have affected about 75,000 people each year. The SSA rule, which was finalized in December, never actually took effect, so withdrawing it merely maintains the status quo. Yet editorials and news stories implied that the congressional override would expose Americans to new dangers. A New York Daily News editorial (tactfully titled "Gun Crazy") claimed the vote against the SSA rule would "liberalize access to weapons," "making it easier for the mentally troubled to get guns." Bloomberg said it would "weaken" background checks for gun owners, while BBC News said it would "loosen" them. NBC News said Congres[...]



Trump's Troubling Attorney General Pick

2017-03-01T12:00:00-05:00

When Jeff Sessions, Donald Trump's choice for attorney general, was nominated as a federal judge in 1986, one comment that got him into trouble was a joke about the Ku Klux Klan. A federal prosecutor testified that Sessions, when he was the U.S. attorney for the Southern District of Alabama, had said he thought the KKK "was OK until I found out they smoked pot."

In light of the Alabama senator's longtime obsession with the evils of marijuana, the anecdote reads like a joke about him. After all, this is the same man who thinks "good people don't smoke marijuana" and who was outraged when President Barack Obama conceded that cannabis is less dangerous than alcohol. Sessions' retrograde opinions about marijuana cast doubt on Donald Trump's commitment to respect state laws allowing production, distribution, and consumption of the drug.

Trump has said he supports medical marijuana but has concerns about broader legalization, a policy he nevertheless thinks states should be free to adopt. "I really believe you should leave it up to the states," he said at a rally in 2015. "I think that should be a state issue, state by state."

Sessions, an old-fashioned drug warrior who pines for the days when Nancy Reagan's Just Say No campaign helped "create a hostility to drug use," seems to disagree. During a 2009 Senate hearing, he complained that "Attorney General [Eric] Holder has said federal authorities will no longer raid medical marijuana facilities in California." At a hearing last April, he declared that "marijuana is not the kind of thing that ought to be legalized," saying "the Department of Justice needs to be clear."

Every state-licensed marijuana business remains a criminal enterprise under federal law, subjecting its owners to the risk of prosecution and forfeiture. An anti-pot crusader at the helm of the Justice Department could make that risk salient by going after growers, manufacturers, and retailers, or just by threatening to do so.

Sessions also could challenge state marijuana laws in federal court, although he might not like the result. While judges might agree that state regulation of marijuana suppliers conflicts with federal law, the Justice Department cannot force states to recriminalize what those businesses do.

Such federal interference would be inconsistent with public opinion as well as Trump's promises. Recent polls indicate that most Americans think pot should be legal, although most Republicans continue to oppose legalization. But even among Republicans, most—70 percent, according to a CBS News poll conducted last April—think the feds should not try to override state decisions in this area.




The Marijuana Exception to Federalism

2017-03-01T00:01:00-05:00

Last week White House Press Secretary Sean Spicer predicted "greater enforcement" of the federal ban on marijuana in the eight states that have legalized the drug for recreational use. This week Attorney General Jeff Sessions, an old-fashioned drug warrior who thinks "good people don't smoke marijuana," seemed to confirm Spicer's warning, telling reporters, "We're going to look at it...and try to adopt responsible policies." If those "responsible policies" involve legal action aimed at shutting down state-licensed marijuana businesses, they will be contrary to public opinion, President Trump's campaign promises, and Sessions' own avowed support for federalism. As most Republicans seem to recognize, attempts to force marijuana prohibition on states that have opted out of it are inconsistent with the decentralized system of government established by the Constitution. According to a recent Quinnipiac University survey, 59 percent of Americans think marijuana "should be made legal in the United States," while 71 percent "oppose the government enforcing federal laws against marijuana in states that have already legalized medical or recreational marijuana." Among Republicans, only 35 percent favored legalization, but 55 percent opposed federal interference with it. Last April a CBS News poll found even stronger Republican opposition to federal meddling. Asked if "laws regarding whether the use of marijuana is legal" should be "determined by the federal government" or "left to each individual state government to decide," 70 percent of Republicans said the latter, compared to 55 percent of Democrats (who as usual were more likely to favor legalization). These results suggest many conservatives, whatever they think of marijuana, take seriously their commitment to federalism, which Trump also claims to support. At the Conservative Political Action Conference in 2015, Trump said he favored medical marijuana but had concerns about broader legalization, a decision he nevertheless said should be left to the states. "In terms of marijuana and legalization," he said at a 2015 rally in Nevada, "I think that should be a state issue, state by state." Sessions, a former Alabama senator, also claims to believe in federalism. After the death of William Rehnquist in 2005, Sessions gave a floor speech in which he praised the chief justice for "reestablish[ing] a respect for state law and state sovereignty." Sessions noted that the federal government, under its authority to regulate interstate commerce, "has broad power, but there are limits to the reach of the Commerce Clause." When it comes to marijuana, however, Sessions has little patience for those limits. "It does remain a violation of federal law to distribute marijuana throughout any place in the United States," he observed on Monday, "whether a state legalizes it or not." In 2005 the Supreme Court upheld continued enforcement of the federal ban on marijuana in states that have legalized the drug. But the Court did so based on a very broad reading of the Commerce Clause—the sort of interpretation that usually irks conservative constitutionalists. The case involved homegrown marijuana used by patients in states that recognize the plant as a medicine. "If Congress can regulate this under the Commerce Clause," observed dissenting Justice Clarence Thomas, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers." In relying on an understanding of the Commerce Clause that lets Congress do pretty much whatever it wants, Sessions outdoes one of the most famous anti-marijuana crusaders in U.S. history. Harry Anslinger, head of the Federal Bureau of Narcotics from 1930 to [...]



The NEA Today, Entitlements Tomorrow

2017-02-22T00:01:00-05:00

Robert Redford says an Office of Management and Budget memo suggesting the Trump administration might try to eliminate the National Endowment for the Arts is "another example of our democracy being threatened." The actor, director, and independent-film booster explains that "arts are essential" because "they describe and critique our society." Democracy probably would survive the demise of the NEA, which was created in 1965 and accounts for a tiny share of arts funding in the United States. But by the same token, getting rid of the NEA would have a negligible impact on federal spending, and there are strong reasons to doubt that the president's commitment to fiscal restraint goes beyond such gestures. Grants from the NEA and every other federal agency that funds the arts account for about 1 percent of revenue received by not-for-profit museums and performing arts groups in the U.S. So even if we arbitrarily exclude money-making enterprises from "the arts," the describing and critiquing of society that Redford values hardly depend on federal largess—a good thing, since it seems unwise to make this subversive function contingent on the good will of politicians. The NEA's fiscal significance is even slighter: Its $146 million budget amounts to 0.004 percent of federal spending. If we throw in the National Endowment for the Humanities and the Corporation for Public Broadcasting—two other culture-related targets on the OMB's hit list that are favorite targets of conservatives—we are talking about 0.02 percent of federal spending, a barely perceptible bit of skin from a small potato. According to The New York Times, which reported the highlights of the OMB memo last week, most of the targets have budgets of less than $500 million, "a pittance for a government that is projected to spend about $4 trillion this year." But judging from the examples cited by the Times, the programs on the OMB's list deserve to be zeroed out, since they are either unnecessary (e.g., AmeriCorps, Bill Clinton's attempt to co-opt and take credit for local volunteer work) or positively pernicious (e.g., the Export-Import Bank, which subsidizes deals by big corporations like Boeing, and the Office of National Drug Control Policy, which tries to put a happy face on the government's immoral war against consumers of arbitrarily proscribed intoxicants). Whether these proposed cuts are a sign of seriousness or the opposite will depend on the Trump administration's approach to big-ticket items. Fortunately, the newly confirmed director of the OMB, former South Carolina congressman Mick Mulvaney, is a fiscal conservative who understands the need for entitlement reform, favors restraint on military spending, and takes a dim view of the grand infrastructure initiatives that Democrats tend to push. Unfortunately, Mulvaney's boss disagrees with him on each of these points. During his presidential campaign, Donald Trump promised to leave Medicare and Social Security alone, expand an already bloated military budget, and spend as much as $1 trillion on infrastructure improvements. "I have to imagine that the president knew what he was getting when he asked me to fill this role," Mulvaney told the Senate Budget Committee during a confirmation hearing last month. But he added that "I have no reason to believe that the president has changed his mind from the statements he made during the campaign." Will Mulvaney go along with the fiscal recklessness signaled by Trump's campaign promises, or will he persuade the president to change his positions? The response to Mulvaney's nomination from supporters of Trump's gratuitous military buildup (which seems inconsistent with the presid[...]