“Truth Commissions” Chill Free Speech

Should the government be in the business of regulating speech in any manner? If so, to what degree? These are very heady questions that lie at the heart of how we think about our First Amendment. The American political left has long been seen as an advocate for the notion that the truth will emerge in a robust free exchange of ideas. Recent events have poked holes in this reputation.

In 2012 the Supreme Court considered a federal law that made it a crime for someone to falsely claim receipt of a military honor. They found that such a crime “chilled” free speech. At the time, I wrote:

Justice Kennedy claimed “permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.”

This is the crux of the matter…Slippery slope is taught in college as a fallacy, but First Amendment thought is, and ought to be, filled with slippery slope paranoia.

On Tuesday the Court will hear arguments in a case called Susan B. Anthony List v. DriehausMany10056df14792ef2c9260373acd72ca58 states have adopted laws that allow the government to fine or imprison people who make false statements in political campaigns. This seems perfectly reasonable on its face. We are sick and tired of politicians and special interests lying to or misleading us. However, these states have given “truth commissions” (government bureaucrats) the authority to determine what statements are true or false.

The attorneys for Susan B. Anthony List, who sued under threat of punishment from such a law in Ohio, penned an op-ed in today’s Wall Street Journal:

The relevant question is thus not whether there is a constitutional “right to lie,” but rather whether the state may force citizens to defend the “truth” of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.

The premise of the First Amendment is that the people should decide what is “true” and what is “false” in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political “truth.”

Laws that penalize lying in political campaigns are rooted in noble intentions. But they lead to the creation of government “truth commissions” that belong in an Orwell novel. The Court should err on the side of free speech.

The Grinch on Broadway and Links

1526434_353920764750966_1767807648_nWe came across some last-minute tickets to Dr. Seuss’ How The Grinch Stole Christmas! The Musical at The Majestic Theatre last night. I misplaced my Playbill, but the actor who played the Grinch knocked my socks off.

There’s nothing quite like a night at the theatre followed by a self-indulgent Romeo y Julieta with Angel’s Envy on the Hotel Valencia balcony. Some of our fellow patrons thought I was a server, which amused me. A glass with a dab of bourbon in one hand and a half-smoked cigar in the other. If anyone can find a job where that behavior is acceptable or encouraged on the clock, let me know. Here are some links:

Rachel Held Evans examines why many biblical literalists tend to focus on homosexuality rather than other biblically-condemned acts:

Though it affects more of us than we tend to realize, statistically, homosexuality affects far fewer of us than gluttony, materialism, or divorce. And as Jesus pointed out so often in his ministry, we like to focus on the biblical violations (real or perceived) of the minority rather than our own.

Johns Hopkins professor David Lampton examines a shift in China’s governance in Foreign Affairs:

According to the German sociologist Max Weber, governments can derive their authority from three sources: tradition, the qualities and charisma of an individual leader, and constitutional and legal norms.

China…has gone from being ruled by strongmen with personal credibility to leaders who are constrained by collective decision-making, term limits and other norms, public opinion, and their own technocratic characters. As one senior Chinese diplomat put it…”Mao and Deng could decide; Jiang and the current leaders must consult.”

So I’m a huge fan of The Great Gatsby, The Wolf of Wall Street, and Leonard DiCaprio. Rachel Syme compares the two 2013 films in the New Yorker:

In Fitzgerald’s narrative, Gatsby dies for our sins, for the sins of the men and women floating about like moths through his blue gardens who can hit and run in cold blood and live to play polo another day. In Belfort’s, it is Belfort causing the car accidents (and the helicopter accidents, and the yacht accidents), and he walks away without so much as a scratch. Scorsese leaves it up to the audience to be Carraway, to recoil in horror at the debauched behavior of the rich and run away from the theatre with a nauseous feeling and a raging hangover. And, of course, this is where the whole thing runs into trouble.

robin_hoodUniversity of Arizona professor Lane Kenworthy argues in Foreign Affairs that the political future of the United States is inevitably socially democratic:

There is surely a level beyond which public social spending hurts economic growth. But the evidence indicates that the United States has not yet reached that level. In fact, the country is still probably well below it.

[C]lear thinkers on the right will eventually realize that given Americans’ desire for economic security and fairness, the question is not whether the government should intervene but how it should do so. An expansion of social programs would not necessarily mean more government interference in markets and weaker competition.

George Mason economist Don Boudreaux worries about redistribution, but not because he is greedy:

Do you [proponents of ‘redistribution’] not worry that creating government power today to take from Smith and give to Jones — simply because Smith has more material wealth than Jones — might eventually be abused so that tomorrow, government takes from Jones and gives to Smith simply because Smith is more politically influential than Jones?

I once read a passage in my Constitutional Criminal Procedure seminar that satirized the Court’s interpretation of privacy and the Fourth Amendment. I can’t find it for the life of me. But Rebecca Rosen discusses the gist, albeit far more solemnly, in The Atlantic:

We daily convey our information to third parties — Google, our cell-service provider, Facebook. For most people in America today, eschewing disclosures of this kind would leave them unable to go about their daily business. Can it really be that participating in life, the economy, and society require a forking over of one’s claim to a ‘reasonable’ expectation of privacy?

Yuletide Reading and Links

1495490_352111591598550_810066280_nChristmas is always a good time to catch up on reading. I’ve gotten to sit down with my Kindle for more time in the last week than I had in the previous three weeks. I’ve been making my way through Malcolm Gladwell’s David and Goliath,  The Wall Street Journal had an awesome $12.00 for 12 weeks Christmas subscription special, I’m starting to make my way through the books I received as gifts, and Buzzfeed has some awesome Home Alone articles. Some interesting passages for today.


From David and Goliath:

The psychologist James Grubman uses the wonderful expression “immigrants to wealth” to describe first-generation millionaires—by which he means that they face the same kinds of challenges in relating to their children that immigrants to any new country face.

Zachary Karabell laments the Internet’s hatred of optimism while offering his own defense:

Optimism is simply the certainty that any human progress to date has been a product of our collective ability to understand how things work and to craft solutions. The conviction that the present is a prelude to a bad future negates that collective ability. Yes, we may indeed be at the end of the line, but by angrily dismissing optimistic arguments we are likely to fail more rapidly.

In a TNR cover piece about Syrian dictator Bashar Al Assad, a former advisor gives some perspective:

“He’s more clever than all the Western and U.S. politicians, for sure,” Ayman Abdelnour, a close adviser to Assad before he fell out of favor and fled into exile, told me. Abdelnour then recalled—by way of explaining why Assad was so difficult to take down—something the young president would tell his inner circle about their foreign adversaries. “They are here for a few years,” Assad would say. “My father, seven presidents passed through him.”

Chiara de Blasio, incoming first daughter of New York City, released a Christmas Eve video in which she admitted that she is in recovery for alcohol and drug abuse. Texan-turned-New Yorker Jessica Huseman gave her take:

Admitting drug addiction as self-medication for depression is an obstacle not many successfully hurdle — especially not so publicly. But it is a choice that presents a lot of loaded political questions for the family.

New York City joined other cities by extending its smoking ban to include e-cigarettes. Councilman James Gennaro, who co-sponsored the legislation, gave some insight into why:

Just seeing people smoking things that look identical to cigarettes in subway cars, colleges and public libraries will tend to re-normalize the act of smoking and send the wrong message to kids.

Some Public Health professors at Columbia have a different take:

The evidence, while still thin, suggests that many e-cigarette users, hoping to kick the habit, use e-cigarettes as a safer alternative to tobacco. Research also suggests that e-cigarettes may be better at helping to sustain smoking cessation than pharmaceutical products like nicotine patches or gums.

Speaking of smoking cessation, a really good advertisement for it:

Bootleggers & Baptists

Dr. Bruce Yandle articulated the “bootleggers and Baptists” phenomenon, an interesting insight into political behavior. Here is how Susan Dudley and Jerry Brito summed it up in Regulation: A Primer:

Special interest groups cannot expect politicians to push through legislation that simply raises prices on a few products so that the protected group can get rich at the expense of consumers.  Like the bootleggers in the early-20th-century South, who benefitted from laws that banned the sale of liquor on Sundays, special interests need to justify their efforts to obtain special favors with public interest stories.  In the case of Sunday liquor sales, the Baptists, who supported the Sunday ban on moral grounds, provided that public interest support.  While the Baptists vocally endorsed the ban on Sunday sales, the bootleggers worked behind the scenes and quietly rewarded the politicians with a portion of their Sunday liquor sale profits.

Modern-day stories of bootleggers and Baptists abound.  Large biotechnology companies join with food safety activists to encourage stricter regulation of new foods involving genetic engineering, thus putting smaller competitors who cannot afford the regulatory compliance costs at a disadvantage.  Tobacco companies supported legislation that would have required cigarettes to receive FDA premarketing approval, which would make it harder for new brands to enter the market.  Solar power manufacturers support regulation that inhibits the production of conventional, competing sources of power (oil, coal, and gas).

I would recommend reading Dr. Yandle’s writing on the subject generally, as well how it has played out in the regulation of tobacco and subsidization of biofuels. He was also interviewed on EconTalk several years ago.

PRISM Not Shocking, Still Concerning

It is absurd that everyone is feigning shock over “recent” revelations that the national security apparatus acquires metadata from telecommunications companies and taps into the servers of internet companies. If you are shocked, you haven’t been paying attention.

The Supreme Court decided, in 1979, that we are not entitled to a “reasonable expectation of privacy” regarding the numbers we dial on a telephone and, thus, our phone records:

The Fort Meade, Maryland headquarters for the National Security Agency.
Fort Meade, Maryland

[I]t is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes.

This case essentially held that gathering “metadata” does not constitute an illegal search. Warrantless wiretaps are illegal, but the president made it clear that the government is not engaging in such behavior. The majority of Americans find the government’s use of telephone records at least somewhat acceptable.

The more troubling revelation was the existence of PRISM, the program used by intelligence officials to directly access the servers of large internet companies. This shouldn’t be a surprise either.

Please read the rest at Politically Inclined.