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INDEPENDENCE DAY TRUTH: Equal People Are Not Free and Free People Are Not Equal

“Human beings are born with different capacities. If they are free, they are not equal. And if they are equal, they are not free.” ― Aleksandr Solzhenitsyn

“I look to a day when people will not be judged by the color of their skin, but by the content of their character.” – Dr. Martin Luther King, Jr., from the “I have a dream” speech in Washington, D.C.


Today we are hearing about equality, equity, along with the big lies of “Wokeism.” These words are Marxist false flags that force, via government mandate, the elevation of one group over another group for political purposes.

MAKING PEOPLE EQUAL

The goal of Marxism is to make everyone equal as humans, as workers and as a people. The problem is when this is put into practice the individual is replaced by the state. As the powers of the government increase the freedoms of the individual shrink or disappear completely.

History tells us repeatedly that as government grows the individual shrinks. Just look at the former Soviet Union to understand what is now happening in America.

QUESTION:  Will Independence Day 2021 go down in history as the day we the people lost our freedom?

In The Revolution Betrayed Leon Trotsky wrote:

The old principle: who does not work shall not eat, has been replaced with a new one: who does not obey shall not eat. Exactly how many Bolsheviks have been expelled, arrested, exiled, exterminated, since 1923, when the era of Bonapartism opened, we shall find out when we go through the archives of Stalin’s political police. How many of them remain in the underground will become known when the shipwreck of the bureaucracy begins.

The people are replaced by government bureaucrats. The laws change from defending individual liberties to taking away the individual and replace the people with crushing state mandates, take the Covid pandemic as a recent example.

Covid shifted power from the individual to that state overnight. The pandemic was used by bureaucrats to take away individual freedom to assemble and replaced it with lockdowns and social distancing.

Covid took away the rights of business to remain open and prosper. It took away individual livelihoods and replace it with government hand outs.

Rev. William J. H. Boetcker spoke of the “Seven National Crimes.”

  • I don’t think.
  • I don’t know.
  • I don’t care.
  • I am too busy.
  • I live well enough alone.
  • I have no time to read and find out.
  • I am not interested.

These seven crimes are the fundamental laws of Wokeism writ large. When we stop thinking, understanding, caring and find ourselves alone, bored and uninformed then our freedom is lost!

A FREE PEOPLE ARE NOT EQUAL

In a truly free society people are never equal. They are different and do things differently throughout their lives. From birth people are influenced by both nature and nurture. No two people are exactly the same when born. The same is true about people who have different life experiences. Even biological twins do not have the same life experiences.

It is fundamental that society understand that it must create opportunities that encourage and use these natural inequalities for the good of all.

The following sentiments were created by the Rev. William J. H. Boetcker, who lectured around the United States about industrial relations at the turn of the twentieth century. They are all the truth.

  • You cannot bring prosperity by discouraging thrift.
  • You cannot help small men by tearing down big men.
  • You cannot strengthen the weak by weakening the strong.
  • You cannot lift the wage earner by pulling down the wage payer.
  • You cannot help the poor man by destroying the rich.
  • You cannot keep out of trouble by spending more than your income.
  • You cannot further brotherhood of men by inciting class hatred.
  • You cannot establish security on borrowed money.
  • You cannot build character and courage by taking away man’s initiative and independence.
  • You cannot help men permanently by doing for them what they could and should do for themselves.

There are those who are hell bent on tearing down big men, weakening the strong, destroying the rich, inciting class hatred and taking away man’s initiative and independence.

The founding fathers understood this and that is why they wrote the Declaration of Independence and U.S. Constitution.

CONCLUSION

QUESTION: How many American patriots have been expelled, arrested, exiled, exterminated, since the 2020 election?

As we Americans approach Independence Day 2021, let us reflect on our freedoms and defend our liberties. If we fail to do so then American, as we have known it, will cease to exist as One Nation Under God and become one nation under big government.

Is this what we want for our children and grandchildren?

I think not.

Have a blessed July 4th.

©Dr. Rich Swier. All rights reserved.

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Politics Worsens Racial Divides — Markets Can Mend Them by Jeffrey A. Tucker

Do you know what inspired the great Frederick Douglass finally to escape from slavery? He was working for a man in Baltimore, Maryland, and getting paid at the end of the day. He took his earnings to his master, who then decided how much Douglass could keep. This struck him as inherently unjust, a wicked symbol of servitude.

He fled to freedom because he wanted to realize and retain his full value in the marketplace. Effectively, he cut out the middle man, the coercive hand that presumed to control his life and property. It was then that he truly began to live a full life.

So it has been since slavery finally was finally abolished in the United States. Markets and commercial culture have been the respite from servitude, the enabler of social peace, the means by which justice is realized, and a source of empowerment for all peoples. Markets turn tension to harmony, injustice to personal fulfillment.

But when government intervenes, much like the role of Douglass’s master, it creates conflict, unfairness, and harms people’s capacity to work toward a more peaceful and prosperous world.

This is the message I gain from a poll released last week. It reveals that both blacks and whites think race relations are generally bad, and by wide margins. In general, two-thirds of survey respondents say that people are not getting along and that tension is high.

The striking fact: This is the reverse of what people believed in the days after the election of Barack Obama, the nation’s first black president.

American civic culture has always treated the presidency as some kind of mystical pinnacle, a beautiful bellwether of where we are as a people and where we are headed as a country. The idea is that we all look to the great man to set the tone and shape the character of us as a people.

Surely, then, because most everyone but a few trolls wants peace, understanding, and cooperation between blacks and whites, the best path forward is to elect a person of color. Surely that will fix something. Right?

Of course it did not. It’s one thing to observe little improvement in these poll numbers but it is quite something else to see them flip to reveal more despair than ever.

During Mr. Obama’s 2008 campaign, nearly 60 percent of blacks said race relations were generally bad, but that number was cut in half shortly after he won. It has now soared to 68 percent, the highest level of discontent among African Americans during the Obama years and close to the numbers recorded in the aftermath of the massive riots that followed the 1992 acquittal of Los Angeles police officers charged in the beating of Rodney King.

The presumption that a black presidency would repair the US race problem trivializes the on-the-ground reality. It presumes that people will respond to symbolism, to identity, to the perception of a new form of power-sharing in society, regardless of reality. Something similar is emerging in the case ofHillary Clinton: her womanness will surely bring new forms of gender justice and therefore harmony between the sexes. Based on the experience with Obama, we can look forward to a similar shot of optimism followed by a dramatic reversal of fortunes.

But let’s dig just a bit deeper into the polls, because it reveals something interesting. Though the news was buried in the story, the polls show a huge chasm between people’s macro and micro perceptions. It turns out that when people are asked about their own communities, which is to say their own lives, the picture is much brighter. Fully 77% said that race relations are good at this level — a number that has not changed in 20 years.

In other words, in terms of people’s experiences in daily life, we find evidence that both blacks and whites get along pretty well. And what does this mean? How do the races typically encounter each other in their own lives? Mostly it is through commercial settings. Shopping, trading, working, and engaging in all the normal activities of life, people find common interests despite their differences. Or it takes place in our social lives: at our houses of worship, the community pool, the neighborhood barbecue. On this very human level, it would appear that matters are better.

So in what respect do people perceive problems? It is when they reflect on the larger picture, which usually involves perceptions of politics and official institutions. Here is where differences manifest themselves. And in this respect, what has changed so dramatically over the past six years to signal new levels of racial tension? It is in the new every day: It is the treatment of blacks by civic institutions, meaning cops and criminal justice in particular. Here lies a major source of the problem.

You can see this in the data too. Here are the charts on how police treat people by race.

These are wide disparities. Among whites, 82% feel safe concerning the police, but only 58% of blacks say the same. Only 5% of whites believe that they have been singled out by police because of their race. Among blacks, 41% believe that — which is quite high (though not as high as I might have expected).

The polls are surely affected by the daily barrage of YouTube videos coming out that show horrendous treatment of black people by police. For white Americans, this has been a remarkable parade of injustice, causing a serious consciousness-raising on the part of every white person I know. Everyone has noticed has much more militarized policing has become over the last couple decades, but the problem is felt particularly intensely by blacks, who are disproportionately harmed by harassment and abuse.

My friend T.K. Coleman, who is black, posted a note a few days ago about his own experience. He and his wife were detained, handcuffed, and questioned for absolutely no reason. His account is harrowing.

He concludes:

There’s this naive idea floating around that people should never be afraid of cops as long as they’re innocent and compliant. For a lot of people in this country, that’s simply not true. …

But if we want to have intelligent discussions about authority in this country, we have to stop using a logic that tells us that people in authority always have a fair reason for doing what they do. We do a lot of talking about what people can do to avoid being abused by cops.

We don’t talk as much as we should about the abuse that happens to people who follow all those instructions. If we can’t question authority, we are doomed.

What we can tease out of these polls is the single most striking fact about human relationships. When they are politicized, and when we rely on government to rule our associations with others, the result is less harmony and more tension and injustice. But when we let go and let voluntary human associations take over, letting people trade and keep property and make decisions for themselves and cooperate as equals, we see progress toward what most everyone wants: peace, harmony, and mutually beneficial engagement.

The implications of this realization are epic. For hundreds of years, governments at all levels have been interfering in race relations, favoring or disfavoring one group or another, sometimes in petty ways and other times in egregious ways. In taking this path, governments have done no one any favors. And today, government remains the single biggest obstacle towards a more harmonious social life of inclusion and free association.

In these last days of his presidency, Obama has finally turned his attention to the problem of criminal justice and the horrible problem of prisons. Finally! I have no reason to doubt his sincerity, even if it turns out to be too little and too late. To the extent he manages to reform the system, removing the boot from the neck just a bit, he will have made his greatest contribution toward racial reconciliation.

In the long run, no one benefits from top-down control. If we are to forge good lives and good communities for ourselves, it is going to be by deferring to the emergent processes of social and economic engagement, one person at a time. Government divides people; markets bring us together.

Frederick Douglass made a courageous decision to seek his own freedom as a path to realizing his highest value in this world. He did this by saying no to the master who presumed to rule his life and property. So must we all.


Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World. Follow on Twitter and Like on Facebook.

Don’t Agree with the Mayor’s Politics? No Permits for You! by Walter Olson

Boston mayor Martin Walsh gives Donald Trump the Chick-Fil-A rush* over his immigration opinions. Via the Boston Herald:

If Donald Trump ever wants to build a hotel in Boston, he’ll need to apologize for his comments about Mexican immigrants first, the Hub’s mayor said.

“I just don’t agree with him at all,” Boston Mayor Martin J. Walsh told the Herald yesterday. “I think his comments are inappropriate. And if he wanted to build a hotel here, he’d have to make some apologies to people in this country.”

More on the use of permitting, licensing, and other levers of power to punish speech and the exercise of other legal rights at Overlawyered’s all-new regulatory retaliation tag. (And no, I’m not exactly thrilled with Mayor Walsh for making me take Trump’s side in an argument.)

* In case you’d forgotten the infamous Chick-Fila-A brouhaha, here’s Overlawyered’s coverage:

The uproar continues, and quite properly so (earlier here and here), over the threats of Boston Mayor Thomas Menino and Chicago alderman Proco (“Joe”) Moreno to exclude the Chick-Fil-A fast-food chain because they disagree (as do I) with some of the views of its owner.

Among the latest commentary, the impeccably liberal Boston Globe has sided with the company in an editorial (“which part of the First Amendment does Menino not understand?…A city in which business owners must pass a political litmus test is the antithesis of what the Freedom Trail represents”), as has my libertarian colleague Tom Palmer at Cato (“Mayor Menino is no friend of human rights.”)

The spectacle of a national business being threatened with denial of local licenses because of its views on a national controversy is bad enough. But “don’t offend well-organized groups” is only Rule #2 for a business that regularly needs licenses, approvals and permissions. Rule #1 is “don’t criticize the officials in charge of granting the permissions.”

Can you imagine if Mr. Dan Cathy had been quoted in an interview as saying “Boston has a mediocre if not incompetent Mayor, and the Chicago Board of Aldermen is an ethics scandal in continuous session.” How long do you think it would take for his construction permits to get approved then?

Thus it is that relatively few businesses are willing to criticize the agencies that regulate them in any outspoken way (see, e.g.: FDA and pharmaceutical industry, the), or to side with pro-business groups that seriously antagonize many wielders of political power (see, e.g., the recent exodus of corporate members from the American Legislative Exchange Council).

A few weeks ago I noted the case of Maryland’s South Mountain Creamery, which contends through an attorney (though the U.S. Attorney for Maryland denies it) that it was offered less favorable terms in a plea deal because it had talked to the press in statements that wound up garnering bad publicity for the prosecutors. After that item, reader Robert V. wrote in as follows:

Your recent article about the [U.S. Attorney for Maryland] going after the dairy farmers reminded me a case in New York state where the Health Department closed down a nursing home in Rochester. They claim is was because of poor care, the owner claims it was because he spoke out against the DOH.

The state just lost a lawsuit where the jury found the DOH targeted the nursing home operator because he spoke out against them.

According to Democrat and Chronicle reporters Gary Craig and Steve Orr, the jury found state health officials had engaged in a “vendetta” against the nursing home owner:

Beechwood attorneys maintained that an email and document trail showed that Department of Health officials singled out Chambery for retribution because he had sparred with them in the past over regulatory issues. The lawsuit hinged on a Constitutional argument — namely that the state violated Chambery’s First Amendment rights by targeting him for his challenges to their operation.

The Second Circuit panel opinion in 2006 permitting Chambery/ Beechwood’s retaliation claim to go forward is here. It took an extremely long time for the nursing home operators to get their case to a jury; the state closed them down in 1999 and the facility was sold at public auction in 2002.

Versions of these posts first appeared at Overlawyered.com, Walter Olson’s indispensable law blog, published by the Cato Institute. 


Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

What Should Libertarians Think about the Civil War? by Phillip Magness

The current national debate over the display and meaning of the Confederate battle flag has reopened a number of longstanding arguments about the meaning of the American Civil War, including within libertarian and classical liberal circles.

Because of its emotional subject matter, lasting political legacies of race and slavery, transformative effects upon American constitutionalism, and sheer magnitude as the most destructive military episode ever to occur on American soil, the Civil War exhibits strong tendencies toward politicization in the modern era.

Unfortunately, bad history often accompanies this politicization, and libertarians are by no means immune from this tendency.

Two common interpretations of the Civil War stand out as particularly problematic:

  1. libertarian support for the Confederacy; and
  2. libertarian support for the Union.

The Problem with Pro-Confederate Libertarianism

The first and perhaps best known “libertarian” approach to the Civil War attempts to find sympathy with the defeated Confederacy because of its resistance to the federal government and northern military authority or its professed cause of free trade and political self-determination.

Some aspects of this position have intuitive appeal that produces sympathy for the Confederate cause: it professes outrage against a Union that is said to have conquered by force, trampled on the rights of states and individuals, unleashed a military invasion, suspended civil liberties, denied government by consent, elevated Lincoln to a “dictator,” and effected a lasting centralization of federal power. In this view, the Union cause and victory is the foundational work for the modern state and all that is anathema to political libertarianism.

This interpretation falters in what it neglects: slavery.

This is no small irony, either, as the anti-slavery cause was arguably the preeminent political occupation of libertarianism’s classical liberal antecedents. A continuum of classical liberal thinkers from Adam Smith to John Stuart Mill and J.E. Cairnes forged the main intellectual case against the slave system.

Abolitionism was also always a preeminent political cause of liberalism, extending from 18th-century statesman Charles James Fox to the 19th century’s Richard Cobden in Great Britain and strongly influencing such figures as William Lloyd Garrison, Lysander Spooner, and Frederick Douglass in the United States.

This is no small matter for the libertarian intellectual tradition either, for in sidestepping the slave question’s intimate connection to the Confederacy, pro-Confederate libertarians also inadvertently abandon what is perhaps the single most important and beneficial contribution that classical liberalism has made to the human condition: the abolition of slavery.

This is not to suggest that libertarian defenders of the Confederacy share its historical affinity for chattel slavery or the plantation system. Rather, they are guilty of turning a tin ear to the one unequivocally beneficial outcome of the war in the permanent destruction of American slavery.

The Problem with Libertarian Unionism

A smaller set of libertarians gravitate to a second common interpretation of the Civil War, defined primarily by its consequential outcome.

Unlike the pro-Confederate position, these libertarian defenders of the North are keenly aware of both the centrality of slavery to the conflict as well as the importance of the abolitionist cause to the liberal intellectual tradition. Standing as a direct antithesis to the pro-Confederate arguments, these faute de mieux Unionists recognize the inherent and fundamental contradiction between slavery and human liberty.

Their position embraces the Union victory on a consequentialist acceptance of the resulting emancipation of the slaves, and disavows any conceivable association between libertarian thought and a brutish Southern slavocracy, born of no other motive or purpose but to entrench and expand that pernicious institution — and deserving of nothing short of a violent and warring elimination by any means or justification.

The argument is both morally appealing and marked by its clarity, but it also suffers from its Manichean simplicity and a tendency to read an inevitable “irrepressible conflict” into the hindsight of the Civil War’s destruction.

This view recognizes slavery and celebrates its abolition, but it tends to neglect or even rationalize the war’s uglier features and consequences: a dramatic weakening of the constitutional federalism laid out in 1787, a rapid acceleration of the scope and power of the federal government, a precedent-setting assault on habeas corpus and expansion of presidential war powers that persists to the present day — and the horrendous destruction itself.

Measured by deaths alone, current estimates place the war’s military toll at 750,000 soldiers. Civilian deaths are more difficult to estimate, though the most common number given is 50,000. And perhaps most telling of all, between 60,000 and 200,000 slaves likely perished as a result of disease and displacement caused by the war.

Why a New Interpretation Is Necessary

Where then does this leave the conscientious libertarian in assessing the Civil War’s legacy?

To address the faults of both the pro-Confederate and pro-Union positions, I’ll offer two propositions for libertarians to consider:

  1. One needn’t be for the Union to be against slavery.
  2. One needn’t be for the Confederacy to object to the North’s prosecution of the war.

Stated differently, a morally consistent libertarian view of the war should strive to dissociate itself from the political actors that waged it, while also seeking to recognize its consequences, both positive and negative.

This much may be seen in the faults of the two views described above. Libertarians who embrace the Confederacy are more often than not reasonably aware of both the evils of slavery and the distinction between the abolitionist cause and the Union.

But they neglect the second rule; because of their distaste for the Union’s wartime policies, they stake their claim to a Confederate cause that, whether they admit it or not, thoroughly attached itself to the moral abomination of slavery.

And libertarians who embrace the Union are also usually aware of the objections one might lodge against its indulgences in unrestricted warfare, suspension of civil liberties, centralization of power, or any of the other charges often made against the Union’s wartime cause or its outcome.

But they thoroughly subordinate these objections to the greater moral purpose of emancipation — a focus that obscures all but the most simplistic reading of the war’s other political and constitutional consequences.

In each argument, the problem is not its primary emphasis, but the complexities it obscures or leaves out.

In place of both views, and in recognition of their deficiencies, libertarians might develop a better appreciation for the Civil War’s complexity by turning their analysis to the nature of the ruinous agency of the conflict itself.

War, whether waged to hold human beings in bondage or subjugate a political rebellion, is a consciously coercive action of the political state in its most expansive and direct form. And armed warfare, as both the Union and Confederacy came to discover across four destructive years, is horrifically messy, unpredictable, and destructive of human life and human liberty.

Military goals and political motives also matter, as they define the objectives of the armies and prioritize their execution. Thus, a military maneuver to capture an opposing political capital will take a very different form from one that eschews political objectives and seeks to maximize the liberation of slaves or the protection of civilians.

There may also be small glimpses of just action amongst individual participants in a far more ambiguous conflict. When the abolitionist Thomas Wentworth Higginson raised the 1st South Carolina Volunteers, an all-black unit composed of escaped slaves, there is little doubt that they were fighting for emancipation, even as larger Union war goals moved far more slowly on this objective.

There is similarly little doubt about the motive of some Southerners who fought for their homes and families as hostile armies marched through their states; even a handful of Confederates — Patrick Cleburne, Duncan Kenner — pressed their government (in vain) to consider emancipation as a means of securing independence.

These graces on the periphery tell us more about the conflict’s moral complexity than anything that may be found in its political objectives. History is not a Manichean struggle between pure good and evil; we are not served by filtering its conflicts through a dualistic moral lens.

Instead of looking for a “side” to champion, we are better served by recognizing that even amid the unbridled horrors of slavery and the devastation of war, there may still be a few who are fighting for something better than their country’s cause.

Phillip Magness

Phil Magness is a policy historian and academic program director at the Institute for Humane Studies.

Did Oregon Gag the Anti-Gay Marriage Bakers? by Walter Olson

Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice.

Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.

That such fears might not be without foundation is illustrated by last week’s widely publicized Oregon cake ruling, in which a Gresham, Oregon couple was ordered to pay $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony.

Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.”

Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued — and its commissioner agreed — that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”

That ought to bother anyone who cares about free speech. I’ve got a piece up at Ricochet.com, my first there, exploring the question in more detail:

Suppose someone began a sentence with the words “I don’t think I should have to serve [group X] at my shop….”

If they follow with the words “but since it’s the law, I’ll comply,” the sentence as a whole would clearly count as protected speech under current law. If they follow with the words “and I won’t, law or no law,” it loses protection.

But suppose the speaker were to end the sentence at “…my shop.” Up to that point, the speaker has expressed only an essentially political opinion, not a forward-looking intention to defy the law.

Such speech is all the more of core First Amendment interest when it takes place not in a local, commercial context but as part of broader political discussions between citizens as to whether laws are unjust or government too heavy-handed.

Read the rest here.

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

RELATED ARTICLE: Hypocrisy ALERT: Gay Bakeries Refuse to Make Pro-Christian Cakes [+Videos]

EDITORS NOTE: This piece cross-posted from Cato at Liberty and Overlawyered.

Gays Need the Freedom to Discriminate by Jeffrey A. Tucker

Gaining the right to be married is a win for liberty because it removes a barrier to free association. But how easily a movement for more freedom turns to the cause of taking away other freedoms!

Following the Supreme Court decision mandating legal same-sex marriage nationwide, the New York Times tells us that, “gay rights leaders have turned their sights to what they see as the next big battle: obtaining federal, state and local legal protections in employment, housing, commerce and other arenas.”

In other words, the state will erect new barriers to freedom of choice in place of the old ones that just came down!

To make the case against such laws, it ought to be enough to refer to the freedom to associate and the freedom to use your property as you see fit. These are fundamental principles of liberalism. A free society permits anything peaceful, and that includes the right to disassociate. Alas, such arguments seem dead on arrival today.

So let us dig a bit deeper to understand why anti-discrimination laws are not in the best interests of gay men and women, or anyone else. Preserving the ability to discriminate permits the market system to provide crucial information feedback to a community seeking to use its buying power to reward its friends and noncoercively, nonviolently punish those who do not share its values.

Ever more, consumers are making choices based on core values. Does this institution protect the environment, treat its workers fairly, support the right political causes? In order to make those choices — which is to say, in order to discriminate — consumers need information.

In the case of gay rights, consumers need to know who supports inclusion and who supports exclusion. Shutting down that information flow through anti-discrimination law robs people of crucial data to make intelligent buying decisions. Moreover, such laws remove the competitive pressure of businesses to prove (and improve) their commitment to community values, because all businesses are ostensibly bound by them.

A market that permits discrimination, even of the invidious sort, allows money and therefore success and profits to be directed toward those who think broadly, while denying money and profitability to those who do not. In this way, a free market nudges society toward ever more tolerant and inclusive attitudes. Money speaks far more persuasively than laws.

Notice that these proposed laws only pertain to the producer and not the consumer. But discrimination is a two-edged sword. The right can be exercised by those who do not like some groups, and it can be exercised by those groups against those who do not like them.

Both are necessary and serve an important social function. They represent peaceful ways of providing social and economic rewards to those who put aside biases in favor of inclusive decision making.

If I’m Catholic and want to support pro-Catholic businesses, I also need to know what businesses don’t like Catholics. If I’m Muslim and only want my dollars supporting my faith, I need to know who won’t serve Muslims (or who will put my dollars to bad use). If a law that prohibits business from refusing to serve or hire people based on religion, how am I supposed to know which businesses deserve my support?

It’s the same with many gay people. They don’t want to trade with companies that discriminate. To act out those values requires some knowledge of business behavior and, in turn, the freedom to discriminate. There is no gain for anyone by passing a universal law mandating only one way of doing business. Mandates drain the virtue out of good behavior and permit bad motivations to hide under the cover of law.

Here is an example from a recent experience. I was using AirBnB to find a place to stay for a friend. He needed a place for a full week, so $1,000 was at stake. The first potential provider I contacted hesitated and began to ask a series of questions that revolved around my friend’s country of origin, ethnicity, and religion. The rental owner was perfectly in his rights to do this. It is his home, and he faces no obligation to open it to all comers.

On the other hand, I found the questions annoying, even offensive. I decided that I didn’t want to do business with this person. I made a few more clicks, cancelled that query, and found another place within a few minutes. The new renter was overjoyed to take in my friend.

I was delighted for two reasons. First, my friend was going to stay at a home that truly wanted him there, and that’s important. Force is never a good basis for commercial relationships. Second, I was able to deny $1K to a man who was, at best, a risk averse and narrow thinker or, at worst, an outright bigot.

Declining to do business with him was my little protest, and it felt good. I wouldn’t want my friend staying with someone who didn’t really want him there, and I was happy not to see resources going toward someone whose values I distrusted.

In this transaction, I was able to provide a reward to the inclusive and broad-minded home owner. It really worked out too: the winning rental property turned out to be perfect for my friend.

This was only possible because the right to discriminate is protected in such transactions (for now). I like to think that the man who asked too many questions felt a bit of remorse after the fact (he lost a lot of money), and even perhaps is right now undergoing a reconsideration of his exclusionary attitudes. Through my own buyer decisions I was actually able to make a contribution toward improving cultural values.

What if anti-discrimination laws had pertained? The man would not have been allowed to ask about national origin, religion, and ethnicity. Presuming he kept his room on the open market, he would have been required under law to accept my bid, regardless of his own values.

As a result, my money would have gone to someone who didn’t have a high regard for my friend, my friend would have been denied crucial information about what he was getting into, and I would not be able to reward people for values I hold dear.

This is precisely why gay rights leaders should be for, not against, the right to discriminate. If you are seeking to create a more tolerant society, you need information that only a free society can provide.

You need to know who is ready to serve and hire gay men and women, so they can be rewarded for their liberality. You also need to know who is unwilling to hire and serve so that the loss part of profit-and-loss can be directed against ill-liberality. Potential employees and customers need to know how they are likely to be treated by a business. Potential new producers need to know about business opportunities in under-served niche markets.

If everyone is forced to serve and hire gays, society is denied important knowledge about who does and does not support enlightened thinking on this topic.

Consider the prototypical case of the baker who doesn’t want to make a wedding cake for a same-sex couple. He is within his rights. His loss of a potential customer base is his own loss. It is also the right of the couple to refuse to give this baker business. The money he would have otherwise made can be redirected towards a baker who is willing to do this. It is equally true that some people would rather trade with a baker who is against gay marriage, and they are within their rights as well.

Every act of discrimination, provided it is open and legal, provides a business opportunity to someone else.

How does all this work itself out in the long run? Commerce tends toward rewarding inclusion, broadness, and liberality. Tribal loyalties, ethnic and religious bigotries, and irrational prejudices are bad for business. The merchant class has been conventionally distrusted by tribalist leaders — from the ancient to the modern world — precisely because merchantcraft tends to break down barriers between groups.

We can see this in American history following the end of slavery. Blacks and whites were ever more integrated through commercial exchange, especially with the advance of transportation technology and rising incomes. This is why the racists turned increasingly toward the state to forbid it. Zoning laws, minimum wage regulation, mandatory segregation, and occupational licensing were all strategies used to keep the races separate even as the market was working toward integration.

The overwhelming tendency of markets is to bring people together, break down prejudices, and persuade people of the benefits of cooperation regardless of class, race, religion, sex/gender, or other arbitrary distinctions. The same is obviously and especially true of sexual orientation. It is the market that rewards people who put aside their biases and seek gains through trade.

This is why states devoted to racialist and hateful policies always resort to violence in control of the marketplace. Ludwig von Mises, himself Jewish and very much the victim of discrimination his entire life, explained that this was the basis for Nazi economic policy. The market was the target of the Nazis because market forces know no race, religion, or nationality.

“Many decades of intensive anti-Semitic propaganda,” Mises  wrote in 1944, “did not succeed in preventing German ‘Aryans’ from buying in shops owned by Jews, from consulting Jewish doctors and lawyers, and from reading books by Jewish authors.” So the racists turned to the totalitarian state — closing and confiscating Jewish business, turning out Jewish academics, and burning Jewish books — in order to severe the social and economic ties between races in Germany.

The biggest enemy of marginal and discriminated-against populations is and has always been the state. The best hope for promoting universal rights and a culture of tolerance is the market economy. The market is the greatest weapon ever devised against bigotry — but, in order to work properly, the market needs to signaling systems rooted in individuals’ freedom of choice to act on their values.

And, to be sure, the market can also provide an outlet for people who desire to push back for a different set of values, perhaps rooted in traditional religious concerns. Hobby Lobby, Chick-Fil-A, In-and-Out Burger, among many others, openly push their religious mission alongside their business, and their customer base is drawn to them for this reason. This is also a good thing. It is far better for these struggles to take place in the market (where choice rules) rather than through politics (where force does).

Trying to game that market by taking away consumer and producer choice harms everyone. Anti-discrimination laws will provide more choices at the expense of more informed choices. Such laws force bigotry underground, shut down opportunities to provide special rewards for tolerance, and disable the social learning process that leads to an ever more inclusive society.

New laws do not fast-track fairness and justice; they take away opportunities to make the world a better place one step at a time.


Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.

Is Michelle Obama a Brilliant Experimental Economist? by B.K. Marcus

A consensus is emerging among advocates of personal freedom and economic literacy that the Healthy, Hunger-Free Kids Act, passed in 2010 with the support of Michelle Obama, is a typical failure of the nanny state.

Reason’s Robby Soave writes, “Like so many other clumsy government attempts to make people healthier by forbidding the consumption of things they like, the initiative is a costly failure.”

But I’d rather imagine the first lady is conducting a sophisticated empirical test of economic theory. All she needs are a few more interventions to correct the “unintended consequences” of the 2010 law, and we’ll be swimming in data.

As Ludwig von Mises explained in “Middle-of-the-Road Policy Leads to Socialism,” each round of intervention into voluntary exchange leads to consequences the interventionists find undesirable. Over and over, the officials are confronted with a choice: undo the initial intervention or initiate the next round of laws and regulations in an attempt to undo the effects of the previous round. Rinse, lather, repeat.

Testifying before the House Subcommittee on Early Childhood, Elementary, and Secondary Education, school administrator John S. Payne from Hartford City, Indiana, told Congress about some of the supposedly unintended consequences in evidence at his area’s public schools.

“Perhaps the most colorful example in my district is that students have been caught bringing — and even selling — salt, pepper, and sugar in school to add taste to perceived bland and tasteless cafeteria food.”

“This ‘contraband’ economy,” says Payne, “is just one example of many that reinforce the call for flexibility” on the part of local government officials.

While laissez-faire liberals may call for the scrapping of government-managed school lunches altogether, and federalists might join Payne in advocating the efficacy of decentralized, local authority over dietary central planning from Washington, DC, those who care more about economic science than nutrition or freedom should look forward to the next several rounds of loophole-closing, ratcheting coercion, and other adjustments needed to isolate students from their remaining lunchtime alternatives.

Currently, according to Payne, some of the parents in his district are signing their children out in the middle of the school day and taking them out for a quick fast-food meal. Those without the option of escape simply choose to eat less during the day. “Whole-grain items and most of the broccoli end up in the trash,” Payne told the subcommittee.

While exit and abstention are of some interest to economic theorists, the real intellectual treat is in seeing what happens when an isolated and otherwise powerless community is reduced to black markets and barter.

In “The Economic Organisation of a POW Camp” in the November 1945 issue of Economica, former prisoner of war R.A. Radford described the economic laboratory of German prison camps:

POW camp provides a living example of a simple economy which might be used as an alternative to the Robinson Crusoe economy beloved by the text-books, and its simplicity renders the demonstration of certain economic hypotheses both amusing and instructive.

In Radford’s camp, everyone received the same rations from both the prison and the Red Cross. Some prisoners also received private parcels, but these were less reliable. At first, barter exchange among the prisoners made them all subjectively better off: the lactose-intolerant smoker will feel richer from trading his tinned milk for the nonsmoker’s cigarettes.

While those who weren’t hooked on tobacco were at first happy to trade their extra smokes for more appealing products, over time, “cigarettes rose from the status of a normal commodity to that of currency.”

This means that all goods could be exchanged directly for cigarettes. There was no longer any need to find another prisoner who both (1) had a surplus of exactly what you needed and (2) wanted just what you had in excess. Everything took on a “price” in cigarettes, eventually listed on “an Exchange and Mart notice board in every bungalow, where under the headings ‘name,’ ‘room number,’ ‘wanted’ and ‘offered’ sales and wants were advertised.”

The public and semi-permanent records of transactions led to cigarette prices being well known and thus tending to equality throughout the camp, although there were always opportunities for an astute trader to make a profit from arbitrage.

Cigarettes were the best money in the context of a POW camp. A good commodity money is valuable, countable, and fungible — divisible in such a way that it retains proportional value. A half an ounce of gold, for example, is worth about half the value of a full ounce of gold. Cutting a diamond in half is not only difficult; it could render two smaller stones whose combined value is far lower than the one you began with.

Cigarettes are somewhere in between gold and diamonds: a single cigarette isn’t as easily divisible, but a half carton probably trades for half the value of a full carton. And the cigarette itself plays the same role with its tobacco contents as coinage does with precious metals: it establishes a countable unit that makes trade more convenient and prices easier to establish and track. And in a POW camp, where the supply is limited and relatively predictable, price inflation isn’t a problem.

Today’s Hartford City schools have not yet developed the economic sophistication of Radford’s German stalag. Students smuggle in packets of salt, pepper, and sugar, and trade them directly for consumption. But if a few more rounds of intervention can reduce students’ lunch options, we can expect to see a new medium of exchange emerge. I’m betting on salt, which already has a long history as commodity money throughout the ancient world.

But if the nanny-state nutritionists are forced to back off and allow either more flexibility or more freedom, we will lose an excellent opportunity to study the evolution of basic monetary economics in a controlled setting.

Won’t someone please think of the science?

B.K. Marcus

B.K. Marcus is managing editor of the Freeman.

Neoliberalism: Making a Boogeyman Out of a Buzzword by Max Borders

After Salon.com stopped being interesting, they needed a way to drive traffic. Competition for eyeballs is tough, after all. In the dog-eat-dog world of attracting eyeballs, you’ve got to find clever ways to pull in new readers.

One way to drive traffic is to poke people you know disagree with you. And by poking, I mean turning them into a Voodoo Doll.

This variation on beating up a Straw Man has the benefit of the Internet’s sharing magic. That is, if you pick on some group they will feel it. Then they will turn around and express their outrage by sharing your stuff! Voila: instant Internet gold.

In making Voodoo Dolls, you don’t always have to pick on a specific person. You can go for a worldview. Salon has given libertarianism a lot of flak, of course. But now they’re going for an even bigger boogeyman, because the idea is to paint as many people as you can with the same tarbrush.

What better place to go for a big, sweeping label than the academy?

Here’s UC-Berkeley political science professor Wendy Brown talking “neoliberalism” in a Salon interview.

And how do you define neoliberalism? It’s not uncommon for me to experience people I’d consider neoliberals telling me the term is meaningless.

I think most Salon readers would know neoliberalism as that radical free-marketeering that comes to us in the ‘70s and ‘80s, with the Reagan-Thatcher revolution being the real marker of that turn in Euro-Atlantic world. It means the dismantling of publicly owned industry and deregulation of capital, especially finance capital; the elimination of public provisions and the idea of public goods; and the most basic submission of everything to markets and to unregulated markets.

So free enterprise is its clarion call, and even though it requires a lot of state intervention and state support, the idea that goes with it is usually also minimal state intervention in markets. Even if states are needed to prop or support or sometimes bail out markets, they shouldn’t get into the middle of them and redistribute [wealth]. That’s all true. That’s certainly part of what neoliberalism is.

Okay, let’s see if we can make heads or tails of this magician’s patter.

Start with Professor Brown’s concern that people have criticized the term neoliberalism as being meaningless. This doctrine, Brown says, “requires a lot of state intervention and state support, the idea that goes with it is usually also minimal state intervention in markets.”

Huh? If neoliberalism isn’t exactly libertarianism or anarcho-capitalism — because these doctrines certainly do not include or require state intervention and support of markets — then we might say she’s talking about cronyism. And certainly if someone were to build a doctrine around cronyism, that would not be meaningless.

It turns out such a doctrine does exist. But it’s not neoliberalism; it’s corporatism — and it’s a progressivist ideology.

According to Nobel laureate Edmund S. Phelps, quoted in the Freeman:

The managerial state has assumed responsibility for looking after everything from the incomes of the middle class to the profitability of large corporations to industrial advancement. This system . . . is . . . an economic order that harks back to Bismarck in the late nineteenth century and Mussolini in the twentieth: corporatism.

Phelps says,

In various ways, corporatism chokes off the dynamism that makes for engaging work, faster economic growth, and greater opportunity and inclusiveness. It maintains lethargic, wasteful, unproductive, and well-connected firms at the expense of dynamic newcomers and outsiders, and favors declared goals such as industrialization, economic development, and national greatness over individuals’ economic freedom and responsibility.

Today, airlines, auto manufacturers, agricultural companies, media, investment banks, hedge funds, and much more has [sic] at some point been deemed too important to weather the free market on its own, receiving a helping hand from government in the name of the “public good.”

But where does this idea come from? Contra Brown, it’s not from the “free marketeers”. Economist Thayer Watkins says:

In the last half of the 19th century people of the working class in Europe were beginning to show interest in the ideas of socialism and syndicalism. Some members of the intelligentsia, particularly the Catholic intelligentsia, decided to formulate an alternative to socialism which would emphasize social justice without the radical solution of the abolition of private property.

The result was called Corporatism. The name had nothing to do with the notion of a business corporation except that both words are derived from the Latin word for body, corpus.

To be fair, Brown might protest, arguing that she would subsidize, cartelize, and manage the right industries, such as finance. At least she laments the liberalization of these industries, citing Thatcher as an example of neoliberal excess, despite what a basket case Britain had been under prior governments.

So which industries would she leave private and which “require a lot of state intervention”? And what sort of magic makes any such scheme immune to rent-seeking and capture?

It appears state support of business originated among certain less-communist advocates of social justice. But surely this is not something the more moderate progressives had in mind.

After all, says Brown, “What’s more, if those of us who oppose neoliberalism misinterpret it as simply another word for capitalism, we make the job of fighting it even more difficult. Franklin Delano Roosevelt was a capitalist, after all. But a neoliberal, he most certainly was not.”

Libertarian philosopher Jason Brennan says it’s time to point fingers and name names. In a rare polemic called “Dear Left: Corporatism is Your Fault” he writes,

America is suffering from rampant, run-away corporatism and crony capitalism. We are increasingly a plutocracy in which government serves the interests of elite financiers and CEOs at the expense of everyone else.

You know this and you complain loudly about it. But the problem is your fault. You caused this state of affairs. Stop it.

But the moderate left didn’t want radical socialism. They just wanted regulatory agencies to rein in the excesses of the market. They wanted the government to subsidize or own areas that ought to be considered public goods, like healthcare, transportation, education, and the environment. But good intentions are not enough, writes Brennan.

We told you this would happen, but you wouldn’t listen. You complain, rightly, that regulatory agencies are controlled by the very corporations they are supposed to constrain. Well, yeah, we told you that would happen. When you create power—and you people love to create power—the unscrupulous seek to capture that power for their personal benefit. Time and time again, they succeed. We told you that would happen, and we gave you an accurate account of how it would happen.

You complain, perhaps rightly, that corporations are just too big. Well, yeah, we told you that would happen. When you create complicated tax codes, complicated regulatory regimes, and complicated licensing rules, these regulations naturally select for larger and larger corporations. We told you that would happen. Of course, these increasingly large corporations then capture these rules, codes, and regulations to disadvantage their competitors and exploit the rest of us. We told you that would happen.

Brennan was probably a little upset when he wrote this, but fairly so. People like Wendy Brown have been trying to emblazon corporatism on the tunics of free marketeers and liberalizers for a while now. And they’re generally pontificating from the academy, rather than from the brothels of K St. in Washington, or Venezuela’s Ministry of Planning and Finance.

No one who calls herself a political science professor should have earned her letters without having read public choice theory. No, it’s time to admit that all progressive attempts to stitch together old scraps of socialism with markets will create perverse effects and corruption of one form or another.

Maybe Prof. Brown is okay with “corporatizing” some industries while leaving others in private hands, a la FDR. Hers seems to be an attempt to synthesize the heart of Marx with the will of the people. She says:

“Demos kratia” — “people rule” — is really the term that, however differently it’s been interpreted over different variations of democracy and different centuries, is one that we all cherish on some level. Demos is important because it’s the body, it’s the people, that we imagine are in control of the basic conditions and laws that govern our lives.

Ah, yes “the body,” the corpus. Haven’t we heard that one before? We’re supposed to cherish democracy, because, well, it’s as American as apple pie. Any more reflection would require admitting that the “demos” disagrees about stuff. And that’s a slippery slope to individualism and recognizing the need for tolerance and personal autonomy. This is the fact of pluralism that even the liberal philosopher John Rawls starts with.

Whenever you hear the world neoliberalism, be wary. It could be completely meaningless filler, but it’s always as squishy as silly putty. It’s a label that’s designed to demonize those who would never support it — a word to be accompanied by a sneer. It is a means of defining oneself as against something — preferably a nice soft Straw Man — rather than doing the hard business of coming out ideologically and defending your ideas.

When you realize that accepting degrees of state intervention is a problem of degree and not of kind, it becomes clear the Wendy Browns have nowhere to run but to nebulous concepts like “demos.” That is because between corporatism and communism there is no magical third way, only shades of state coercion, justified by a flimsy majoritarian facade. The choice between nationalized or regulated industries is binary, so the ideological choice set is really only between communism and corporatism. But communism screwed things up. Corporatism screws things up. All the variations screw things up because each permutation involves power and business forming unholy alliances.

People like Wendy Brown and her Salon interviewer Elias Isquith aren’t stupid. And like most people, they have good intentions. They are committed to a particular theory of angels. Demos, that golden calf, is the tired old notion that if we could just blur the peculiarities, individuality, and desires of 300 million people into a single prayer and send it up through the voting booth, what will come out the other side — in Washington, D.C. — is a kind of secular salvation. But this sort of thinking turns on hypostatization, that timeless fallacy of ambiguity that seduces people into collectivism.

We have to look them squarely in the face and say: “You caused this state of affairs. Stop it.”


Max Borders

Max Borders is the editor of the Freeman and director of content for FEE. He is also co-founder of the event experience Voice & Exit and author of Superwealth: Why we should stop worrying about the gap between rich and poor.

Blurred Lines: The Humanitarian Threat to Free Speech by Aaron Tao

“Think of liberalism … as a collection of ideas or principles which go to make up an attitude or ‘habit of mind.’” – Arthur A. Ekirch

In Democracy in America, Alexis de Tocqueville was keen to observe that “once the Americans have taken up an idea, whether it be well or ill founded, nothing is more difficult than to eradicate it from their minds.”

Reflecting upon my experience as a first-generation immigrant who grew up in the United States, I concur with Tocqueville; this inherent feature of the culture and character of the American people holds true even today.

In America, there are no sacred cows, no one is above criticism, and no one has the final say on any issue. It is worth emphasizing that today, the United States stands virtually alone in the international community in upholding near-absolute freedom of personal expression, largely thanks to the constitutional protections provided by the First Amendment.

But without certain internalized values and principles, the legal bulwark of the First Amendment is nothing more than a parchment barrier.

As cliché as it may sound, it is important to recognize that our cherished freedom to think, speak, write, and express ourselves should not be taken for granted. Defending the principle of free speech is a perennial conflict that has to be fought in the court of public opinion here and abroad.

Unfortunately, a number of recent developments have greatly alarmed civil libertarians and may very well carry long-term negative repercussions for the United States as a free and open society.

In his new book, Freedom from Speech, Greg Lukianoff, the president of the Foundation for Individual Rights in Education (FIRE) and tireless free speech advocate, highlights a troubling cultural phenomenon: the blurring of physical safety with psychological and ideological comfort.

It is a disturbing trend that is not limited to the United States:

People all over the globe are coming to expect emotional and intellectual comfort as though it were a right. This is precisely what you would expect when you train a generation to believe that they have a right not to be offended. Eventually, they stop demanding freedom of speech and start demanding freedom from speech.

On the other side of Atlantic, Great Britain is undergoing what one writer describes as a “slow death of free speech.” The land of Milton is now home to luminaries who wish to reinstate Crown licensing of the press (not seen since 1695!).

Meanwhile, ordinary people face jail time for callous tweeting. In British universities, student-driven campaigns have successfully shut down debates and banned pop songs, newspapers, and even philosophy clubs.

While the United States is fortunate enough to have the First Amendment [to] prevent outright government regulation of the press, cultural attitudes play a greater role in maintaining a healthy civil society.

Lukianoff reserves special criticism for American higher education for “neglecting to teach the intellectual habits that promote debate and discussion, tolerance for views we hate, epistemic humility, and genuine pluralism.”

Within academia, “trigger warnings” and “safe places” are proliferating. In a truly Bizarro twist, it has now come to the point that faculty members are defending individual rights and due process and decrying mob rule, while their students run off in the opposite direction.

We now hear on a regular basis of campus outrages involving a controversial speaker or perceived injustice, and the “offended” parties responding with a frenzied social media crusade or a real-world attempt to shame, bully, browbeat, censor, or otherwise punish the offender.

A small sampling from this season include attempts to ban screenings of American Sniper at the University of Michigan and the University of Maryland, resolutions to create a Stasi-like “microaggression” reporting system at Ithaca College, and the controversy involving AEI scholar Christina Hoff Sommers speaking at Oberlin College.

These incidents are just the tip of the iceberg.

With the endless stream of manufactured outrages, perhaps it is fitting that George Mason University law professor David Bernstein would raise the question, “Where and when did this ‘makes me feel unsafe’ thing start?”

My personal hypothesis: When postmodernism found itself a new home on Tumblr, spread across the left-wing blogosphere, became reinforced by mobs and echo-chambers, and spilled into the real world.

Luckily, not all progressives have sacrificed the basic principles of liberalism to the altar of radical identity politics and political correctness. One liberal student at NYU courageously pointed out the grave dangers posed by the ideology embraced by many of his peers:

This particular brand of millennial social justice advocacy is destructive to academia, intellectual honesty, and true critical thinking and open mindedness. We see it already having a profound impact on the way universities act and how they approach curriculum. …

The version of millennial social justice advocacy that I have spoken about — one that uses Identity Politics to balkanize groups of people, engenders hatred between groups, willingly lies to push agendas, manipulates language to provide immunity from criticism, and that publicly shames anyone who remotely speaks some sort of dissent from the overarching narrative of the orthodoxy — is not admirable.

It is deplorable. It appeals to the basest of human instincts: fear and hatred. It is not an enlightened or educated position to take. History will not look kindly on this Orwellian, authoritarian perversion of social justice that has taken social media and millennials by storm over the past few years.

I, too, am convinced that these activists, with their MO of hysterical crusades, are one of today’s biggest threats to free speech, open inquiry, and genuine tolerance, at least on college campuses. The illiberal climate fostered by these their ideologues seems to be spreading throughout academia and is continuing to dominate the headlines.

As of this writing, Northwestern professor (and self-described feminist) Laura Kipnis is undergoing a Kafkaesque Title IX inquisition for writing a column in the Chronicle of Higher Education and making comments on Twitter that offended a number of students. The aggrieved mobilized in full force to have her punished under the federal sex discrimination law.

These groups and their tactics represent what Jonathan Rauch would describe as the “humanitarian” challenge to free speech. In his must-read book, Kindly Inquisitors: The New Attacks on Free Thought, Rauch identified how these “humanitarians” sought to prevent “offense” to “oppressed and historically marginalized” peoples. In the name of “compassion,” words became conflated with physical action.

As speech codes spread and the definition of “harassment” (reading a book in public, for instance) became broader within the bureaucracy of academia, an “offendedness sweepstakes” was cultivated and turned into the norm.

Rauch’s book was published in 1993, but his diagnosis and arguments still apply today, if not more, in the age of social media when the “offendedness sweepstakes” are amplified to new levels.

Nowadays, PC grievance mongers can organize much more effectively and more often than not, get rewarded for their efforts. The future of a free society looks very bleak should these types become a dominant force on the political landscape. I can’t help but shiver at the prospect of seeing the chronically-offended eggshells of my generation becoming tomorrow’s legislators and judges. The chilling effects are already being felt.

Even as numerous challenges emerge from all corners, free speech has unparalleled potential for human liberation in the Digital Age. The eternal battle is still that of liberty versus power, and the individual versus the collective. I remain confident that truth can still prevail in the marketplace of ideas. It is for this reason we should treasure and defend the principles, practices, and institutions that make it possible.

Last month marked the birthday of the brilliant F.A. Hayek, the gentleman-scholar who made landmark contributions to fields of economics, philosophypolitical science, and law, and established his name as the twentieth century’s most eminent defender of classical liberalism in the face of the collectivist zeitgeist.

For all his accomplishments, Hayek practiced and urged epistemological humility (a position that should be natural to any defender of free speech) in his Nobel lecture. Looking back on his life’s work, Hayek was highly skeptical of the nebulous concept of “social justice” and its totalitarian implications. He even went as far as to devote an entire volume of his magnum opus, Law, Legislation, and Liberty, to completely demolish The Mirage of Social Justice.

Hayek concluded:

What we have to deal with in the case of “social justice” is simply a quasireligious superstition of the kind which we should respectfully leave in peace so long as it merely makes those happy who hold it, but which we must fight when it becomes the pretext of coercing other men [emphasis added].

And the prevailing belief in “social justice” is at present probably the gravest threat to most other values of a free civilization.

Hayek did not predict that “social justice” would be first used to silence dissent before moving on to its long-term agenda, but it would not have surprised him. Weak ideas always grasp for the censor in the face of sustained criticism — and feeble ideas made strong by politics are the most dangerous of all.

Humanitarians with guillotines can be found from the French Revolution to present day. Modern day defenders of individual liberty would do well to heed Hayek’s warning and resist the Siren song of “social justice,” the rallying cry of collectivists who cannot realize their vision without coercion.


Aaron Tao

Aaron Tao is the Marketing Coordinator and Assistant Editor of The Beacon at the Independent Institute.

Texas Will Stop Putting Kids in Prison for Skipping School by Jason Bedrick

The AP reports some good news out of Texas over the weekend:

A long-standing Texas law that has sent about 100,000 students a year to criminal court – and some to jail – for missing school is off the books, though a Justice Department investigation into one county’s truancy courts continues.

Gov. Greg Abbott has signed into law a measure to decriminalize unexcused absences and require school districts to implement preventive measures. It will take effect Sept. 1.

Reform advocates say the threat of a heavy fine – up to $500 plus court costs – and a criminal record wasn’t keeping children in school and was sending those who couldn’t pay into a criminal justice system spiral.

Under the old law, students as young as 12 could be ordered to court for three unexcused absences in four weeks. Schools were required to file a misdemeanor failure to attend school charge against students with more than 10 unexcused absences in six months. And unpaid fines landed some students behind bars when they turned 17.

Unsurprisingly, the truancy law had negatively impacted low-income and minority students the most.

In the wake of the arrest of a Georgia mother whose honor role student accumulated three unexcused absences more than the law allowed, Walter Olson noted that several states still have compulsory school attendance laws that carry criminal penalties:

Texas not only criminalized truancy but has provided for young offenders to be tried in adult courts, leading to extraordinarily harsh results especially for poorer families.

But truancy-law horror stories now come in regularly from all over the country, from Virginia to California. In Pennsylvania a woman died in jail after failing to pay truancy fines; “More than 1,600 people have been jailed in Berks County alone — where Reading is the county seat — over truancy fines since 2000.”)

The criminal penalties, combined with the serious consequences that can follow non-payment of civil penalties, are now an important component of what has been called carceral liberalism: we’re finding ever more ways to menace you with imprisonment, but don’t worry, it’s for your own good.

Yet jailing parents hardly seems a promising way to stabilize the lives of wavering students.

And as Colorado state Sen. Chris Holbert, sponsor of a decriminalization bill, has said, “Sending kids to jail — juvenile detention — for nothing more than truancy just didn’t make sense. When a student is referred to juvenile detention, he or she is co-mingling with criminals — juveniles who’ve committed theft or assault or drug dealing.”

It’s encouraging to see movement away from criminalized truancy, but it’s not enough. As Neal McCluskey has noted, compulsory government schooling is as American as Bavarian cream pie.

We shouldn’t be surprised when the one-size-fits-some district schools don’t work out for some of the students assigned to them. Instead, states should empower parents to choose the education that meets their child’s individual needs.


Jason Bedrick

Jason Bedrick is a policy analyst with the Cato Institute’s Center for Educational Freedom.

EDITORS NOTE: This post first appeared at Cato.org.

What Can the Government Steal? Anything It Pays For! by Daniel Bier

“…Nor shall private property be taken for public use, without just compensation.” – Fifth Amendment to the U.S. Constitution 

On Monday, I wrote about the Supreme Court’s decision in the case of Horne v. USDA, in which the Court ruled almost unanimously against the government’s attempt to confiscate a third of California raisin farmers’ crops without paying them a dime for it.

The confiscation was part of an absurd FDR-era program meant to increase the price of food crops by restricting the supply; the government would then sell or give away the raisins to foreign countries or other groups.

Overall, this ruling was a big win for property rights (or, at least, not the huge loss it could have been).

But there’s one issue that’s been overlooked here, and it relates to the Court’s previous decision in Kelo v. City of New London, the eminent domain case that also just turned 10 horrible years old yesterday.

In Horne, eight justices concluded that physically taking the farmers’ raisins and carting them away in trucks was, in fact, a “taking” under the Fifth Amendment that requires “just compensation.”

That sounds like common sense, but the Ninth Circuit Court of Appeals had ruled that the seizure wasn’t a taking that required compensation because, in their view, the Fifth Amendment gives less protection to “personal property” (i.e., stuff, like raisins or cars) than to “real property” (i.e., land).

The Court thankfully rejected this dangerous and illogical premise.

But while eight justices agreed on the basic question of the taking, only five agreed on the matter of just compensation.

The majority concluded that the government had to pay the farmers the current market value of the crops they wanted to take, which is standard procedure in a takings case (like when the government wants to take your home to build a road).

Justices Breyer (joined by Ginsburg and Kagan) wrote a partial dissent, arguing the federal government’s claim that the question of how much the farmers were owed should be sent back to the lower court to calculate what the farmers were owed.

Their curious reasoning was that, since the government was distorting the market and pushing up the market price of raisins, they should be able to subtract the value the farmers were getting from the artificially inflated price from the value of the raisins that were taken. The government argued that the farmers would actually end up getting more value than was taken from them, under this calculation.

Chief Justice Roberts, writing for the majority, derided this argument: “The best defense may be a good offense, but the Government cites no support for its hypothetical-based approach.”

But the most interesting part of this subplot came from Justice Thomas. Thomas fully agreed with Roberts’ majority opinion, but he wrote his own a one-page concurrence on the question of how to calculate “just compensation,” and it went right at the heart of Kelo.

In Kelo, a bare majority of the Court ruled that the government could seize people’s homes and give them to private developers, on the grounds that the government expected more taxes from the new development.

Marc Scribner explains how the Court managed to dilute the Fifth Amendment’s “public use” requirement into a “public purpose” excuse that allows the government to take property for almost any reason it can dream up.

Thomas’s concurrence disputes Breyer’s argument about calculating “just compensation” by pointing out that, had Kelo had been correctly decided, the government wouldn’t be allowed to take the farmers’ crops at all — even if it paid for them.

Thomas wrote (emphasis mine),

The Takings Clause prohibits the government from taking private property except “for public use,” even when it offers “just compensation.”

And quoting his dissent in Kelo:

That requirement, as originally understood, imposes a meaningful constraint on the power of the state — ”the government may take property only if it actually uses or gives the public a legal right to use the property.”

It is far from clear that the Raisin Administrative Committee’s conduct meets that standard. It takes the raisins of citizens and, among other things, gives them away or sells them to exporters, foreign importers, and foreign governments.

To the extent that the Committee is not taking the raisins “for public use,” having the Court of Appeals calculate “just compensation” in this case would be a fruitless exercise.

Unfortunately, Chief Justice Roberts is already writing as though the “public use” requirement was a dead letter, writing at one point in his opinion: “The Government correctly points out that a taking does not violate the Fifth Amendment unless there is no just compensation.”

But that isn’t true. A taking violates the Fifth Amendment, first and foremost, if it is not taken for “public use.” And confiscating raisins and giving them to foreign governments in order to keep the price of raisins in the United States artificially high does not, in any sane world, meet that standard.

What Thomas didn’t say, but clearly implied, was that the Court should have struck down the raisin-stealing scheme entirely, rather than just forcing the government pay for the crops it takes.

The Horne decision was good news, but it didn’t go far enough by actually imposing a meaningful limit on what counts as “public use.” The Court could have done that in this case, by overturning Kelo or at least adding somelimitations about what governments can lawfully take private property for.

Happily, Justice Thomas isn’t throwing in the towel on Kelo, and Justice Scalia has predicted that the decision will eventually be overturned.

So can the government still take your property for no good reason? Yes, for now. But at least they have to pay for it.

That’s not nothing. And for raisin farmers in California, it’s a whole lot.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

California Government Puts Uber on Blocks by Jeffrey A. Tucker

The California Labor Commission, with its expansive power to categorize and codify what it is that workers do, has dealt a terrible blow to Uber, the disruptive ride-sharing service. In one administrative edict, it has managed to do what hundreds of local governments haven’t.

Every rapacious municipal taxi monopoly in the state has to be celebrating today. It also provides a model for how these companies will be treated at the federal level. This could be a crushing blow. It’s not only the fate of Uber that is at stake. The entire peer-to-peer economy could be damaged by these administrative edicts.

The change in how the income of Uber drivers is treated by the law seems innocuous. Instead of being regarded as “independent contractors,” they are now to be regarded as “employees.”

Why does it matter? You find out only way down in the New York Times story on the issue. This “could change Uber’s cost structure, requiring it to offer health insurance and other benefits, as well as paying salaries.”

That’s just the start of it. Suddenly, Uber drivers will be subject to a huge range of federal tax laws that involve withholding, maximum working hours, and the entire labor code at all levels as it affects the market for employees. Oh, and Obamacare.

This is a devastating turn for the company and those who drive for it.

Just ask the drivers:

Indeed, there seems to be no justification for calling Uber drivers employees. I can recall being picked up at airport once. Uber was not allowed to serve that airport. I asked the man if he worked for Uber. He said he used to but not anymore.

“When did you quit?”

“Just now,” he said. Wink, wink. He was driving for himself on my trip.

“When do you think you will work for Uber again?”

“After I drop you off.”

That’s exactly the kind of independence that Uber drivers value. They don’t have to answer any particular call that comes in. They set their own hours. They drive their own cars. When an airport bans Uber, they simply redefine themselves.

They can do this because they are their own boss; Uber only cuts them off if they don’t answer a call on their mobile apps for 180 days. But it is precisely that rule that led the commission to call them “employees.”

That’s a pretty thin basis on which to call someone an employee. And it’s also solid proof that the point of this decision is not to clarify some labor designation but rather to shore up the old monopolies that want to continue to rip off consumers with high prices and poor service. No surprise, government here is using its power to serve the ruling class and established interests.

This is exactly the problem with government regulations that purport to define and codify every job. Such regulations tend to restrict the types and speed of innovation that can occur in enterprises.

The app economy and peer-to-peer network are huge growth areas precisely because they have so far manage to evade being codified and controlled and shoe-horned into the old stultifying rules.

If everyone earning a piecemeal stream of income is called an employee — and regulated by relevant tax, workplace, and labor laws — many of these companies immediately become unviable.

There will be no more on-demand hair stylists, plumbers, tennis coaches, and piano teachers. The fate of a vast number of companies is at stake. The future is at stake.

For now, Uber is saying that this decision pertains to this one employee only. I hope that this claim is sustainable. If it is not, the regulators will use this decision to inflict a terrible blow on the brightest and fastest growing sector of American economic life.


Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.

5 Reasons the FDA’s Ban on Trans Fat Is a Big Deal by Walter Olson

The Obama administration’s Food and Drug Administration today announced a near-ban, in the making since 2013, on the use of partially hydrogenated vegetable fats (“trans fats”) in American food manufacturing.

Specifically, the FDA is knocking trans fats off the Generally Recognized as Safe (GRAS) list. This is a big deal and here are some reasons why:

1. It’s frank paternalism. Like high-calorie foods or alcoholic beverages, trans fats have marked risks when consumed in quantity over long periods, smaller risks in moderate and occasional use, and tiny risks when used in tiny quantities. The FDA intends to forbid the taking of even tiny risks, no matter how well disclosed.

2. The public doesn’t agree.2013 Reason-RUPE poll found majorities of all political groups felt consumers should be left free to choose on trans fats.  Even in heavily governed places like New York City and California, where the political class bulldozed through restaurant bans some years back, there was plenty of resentment.

3. The public is also perfectly capable of recognizing and acting on nutritional advances on its own. Trans fats have gone out of style and consumption has dropped by 85 percent as consumers have shunned them.

But while many products have been reformulated to omit trans fats, their versatile qualities still give them an edge in such specialty applications as frozen pizza crusts, microwave popcorn, and the sprinkles used atop cupcakes and ice cream. Food companies tried to negotiate to keep some of these uses available, especially in small quantities, but apparently mostly failed.

4. Government doesn’t always know best, nor do its friends in “public health.” The story has often been told of how dietary reformers touted trans fats from the 1950s onward as a safer alternative to animal fats and butter.

Public health activists and various levels of government hectored consumers and restaurants to embrace the new substitutes. We now know this was a bad idea: trans fats appear worse for cardiovascular health than what they replaced. And the ingredients that will replace minor uses of trans fats – tropical palm oil is one – have problems of their own.

5. Even if you never plan to consume a smidgen of trans fat ever again, note well: many public health advocates are itching for the FDA to limit allowable amounts of salt, sugar, caffeine, and so forth in food products. Many see this as their big pilot project and test case.

But when it winds up in court, don’t be surprised if some courtroom spectators show up wearing buttons with the old Sixties slogan: Keep Your Laws Off My Body.


Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

EDITORS NOTE: This post first appeared at Cato.org.

There Is No “Nationwide Crime Wave” — But Baltimore Is in Trouble by Daniel Bier

Heather McDonald’s Wall Street Journal op-ed “The New Nationwide Crime Wave” has exploded into the debate over police misconduct and criminal justice reform like a flash-bang grenade. It’s been discussed on numerous talk radio and cable news shows, and it’s been shared nearly 40,000 times on social media.

It’s a story engineered to go viral: It has a terrifying premise (crime everywhere is spiraling out of control!), a topical news hook (it’s all because of protesters!), a partisan bad guy (it’s all liberals’ fault!), and a weapons-grade dose of confirmation bias.

But there is no nationwide crime wave. It is completely manufactured by cherry picking data and misleading stats.

McDonald selects a handful of cities and quotes statistics to show that crime is exploding in “cities across America” this year:

In Baltimore… Gun violence is up more than 60% compared with this time last year, according to Baltimore police, with 32 shootings over Memorial Day weekend. May has been the most violent month the city has seen in 15 years.

In Milwaukee, homicides were up 180% by May 17 over the same period the previous year. Through April, shootings in St. Louis were up 39%, robberies 43%, and homicides 25%. …

Murders in Atlanta were up 32% as of mid-May. Shootings in Chicago had increased 24% and homicides 17%. Shootings and other violent felonies in Los Angeles had spiked by 25%; in New York, murder was up nearly 13%, and gun violence 7%.

Does this blizzard of numbers show a “nationwide crime wave”? No.

As John Lott points out at FoxNews.com,

Overall, the 15 largest cities have actually experienced a slight decrease in murders. There has been a 2 percent drop from the first five months of 2014 to the first five months of this year. Murder rates rose in eight cities and fell in seven. There is no nationwide murder wave.

Murder rates fell dramatically in some of these cities. Comparing this year’s January-to-May murder data with last year’s, we find that San Jose’s murder rate fell by a whopping 59 percent; Jacksonville’s fell by 31 percent; Indianapolis’ by 28 percent; San Antonio’s by 25 percent; and Los Angeles’ by 15 percent.

Even in the cities where murder is up compared to 2014, other categories of crime are down. New York, for instance, has had more murders but fewer burglaries and robberies. LA’s other violent crimes may be up, but murder is down.

She also implies that police are being attacked and killed more than ever: “Murders of officers jumped 89% in 2014, to 51 from 27.”

This 89% statistic is a deeply misleading view of the facts. Yes, 51 officers were murdered in 2014, compared to 27 in 2013. But 2013 was the safest year for police since World War II. It had the fewest shooting deaths for police since1887.

If you compare 2014’s 51 murders to other recent years, it’s not exceptional. In 2012, there were 48 officers killed. In 2011, it was 72. Over the last couple decades, the rate of police murders (and indeed work-related deaths from all causes) have fallen by nearly half, as have assault and injuries of police.

There’s another reason why McDonald quoted last year’s statistics for officer deaths when all of her other figures come from this year: officer shootings are down 27% so far this year.

Just like her other statistics, if she had given any context at all to the 89% figure, it wouldn’t have fit with her narrative of rising violence.

But never mind — as the author of this story, McDonald knows the cause of this fictitious trend: the “Ferguson Effect.”

The most plausible explanation of the current surge in lawlessness is the intense agitation against American police departments over the past nine months.

By her account, an “incessant drumbeat against the police” is behind the nonexistent “wave” of crime and violence against cops.

But this is also a myth. Public support for police has not waned. Gallup’s polling shows that confidence in law enforcement has been steady since the early 1990s.

That hasn’t changed, even after the protests against police abuse around the country. A Huffington Post/YouGov survey from April 2015 showed that 61% of Americans have a “great deal” or a “fair amount” of trust in their local department; 21% said “not very much,” and only 14% had “none.”

There is no national crime wave. Big cities are not facing a “surge of lawlessness.” There is no “war on cops.” The public hasn’t turned against the police.

So what’s going on in Baltimore? McDonald isn’t wrong about the spike in crime there. Baltimore City really is facing a breakdown in law and order.

Alex Tabarrok notes that police have made 40% fewer arrests since the start of the protests and the filing of criminal charges against six cops involved in Freddie Gray’s death.

As arrests have declined, crime has soared.

Tabarrok writes,

Not all arrests are good arrests, of course, but the strain is cutting policing across the board and the criminals are responding to incentives.

Fewer police mean more crime. As arrests have fallen, homicides, shootings, robberies and auto thefts have all spiked upwards.

Homicides, for example, have more than doubled from .53 a day on average before the unrest to 1.35 a day after (up to June 6, most recent data) – this is an unprecedented increase – and the highest homicide rate Baltimore has ever seen.

It’s not just murder. Shootings are up over 250%. Robberies are up 64%. Car thefts are up 42%.

It’s reasonable to assume that the increase in crime is at least partially related to the decline in police activity — criminals respond to incentives just like everyone else — but why aren’t police making arrests?

The answer might be found in the “De Blasio Effect.”

New York saw a similar “work stoppage” — that is, an unofficial strike — by the NYPD during its feud with Mayor De Blasio over his critical comments about the death of Eric Garner.

The NYPD retaliated: Arrests fell by 56% and criminal summonses fell by 92%, until the mayor made up with the department and police work resumed.

Kevin Drum speculates that BPD’s precipitous decline in arrests is a similar reprisal against the indictment of the officers involved in Freddie Gray’s death.

It’s certainly possible that has something to do with it, but officers appear to be genuinely spooked. About 130 cops were injured in the riots — that’s about 4.5% of the city’s officers down over the course of a week. That’s almost twice the rate of injury the average department sustains in a whole year.

Cops are understandably worried. Peter Moskos, a former BPD officer, says, “In Baltimore today, several police officers need to respond to situations where formerly one could do the job. This stretches resources and prevents proactive policing.”

There’s another issue: when crime spikes, police can be overwhelmed. Cases build up, and as new reports pour in, less and less time can be devoted to the old ones.

Most murders in Baltimore this year have gone unsolved. BPD’s clearance rate for homicides has fallen to just 40%, and the surge in killings can only make things worse.

Police Commissioner Anthony W. Batts said the rise in killings is “backlogging” investigators, just as the community has become less engaged with police, providing fewer tips.

Tabarrok is worried that a new equilibrium for crime could emerge in Baltimore. If crime continues to rise, clearance rates will fall further, detectives will get more backlogged, and it gets even harder to solve the next case. And if the probability of being caught and punished goes down, criminals will commit more crimes.

With luck the crime wave will subside quickly but the longer-term fear is that the increase in crime could push arrest and clearance rates down so far that the increase in crime becomes self-fulfilling. The higher crime rate itself generates the lower punishment that supports the higher crime rate

It’s possible that a temporary shift could push Baltimore into a permanently higher high-crime equilibrium. Once the high-crime equilibrium is entered it may be very difficult to exit without a lot of resources that Baltimore doesn’t have.

Some people see criminal justice reform as being anti-cop or “soft on crime,” but it’s not. Reform enables police to do a better job, which reduces crime — and that makes them and their citizens safer.

The best thing that Baltimore can hope for is that cops get back to work and start solving crimes. The best way to do that is for the community to engage with law enforcement.

Communities’ trust in police is key to fighting crime, and right now the BPD doesn’t have it. The Baltimore Sun has documented in excruciating detail the department’s history of corruption and excessive force, writing: “The perception that officers are violent can poison the relationship between residents and police.” And that leads to tips not given, 911 calls not dialed, and witnesses failing to come forward.

Real, credible reform, combined with accountability for misconduct and a strong commitment to community safety, is the best and probably only way to rebuild the relationship between citizen and cop and to turn crime around in Baltimore. The city and the police must embrace the task; they won’t accomplish it without each other.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

The Feds vs. Reason.com Commenters by Ryan Radia

Our friends over at the Reason Foundation, a venerable libertarian think tank and publisher of Reason magazine, recently received a grand jury subpoena from a federal prosecutor in New York, reports Ken White at Popehat.

The subpoena demands that Reason disclose “all identifying information” it has regarding six pseudonymous users who posted comments about the death and afterlife of a federal judge on Reason’s Hit & Run blog.

These comments came in response to a May 31 post by Nick Gillespie about the trial and sentencing of Ross Ulbricht, who was convicted in February of running an Internet-based narcotics and money laundering platform known as Silk Road.

In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.

A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.

One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”

Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”

This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.

The subpoena demands from Reason information about the six users, including their email and Internet Protocol (IP) addresses — which, if disclosed, could enable the government to uncover the true identities of the commenters, perhaps after another round of subpoenas are sent to the users’ respective Internet Service Providers.

Popehat’s Ken White is quite troubled by the government’s decision to issue this subpoena. Ilya Somin, writing at The Volokh Conspiracy, also objects to the subpoena. So do the Cato Institute’s Tim Lynch and Techdirt’s Mike Masnick, among many others.

I too find it quite concerning. Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.

Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.

And if Reason decides to stand up for its users’ rights, the resulting court battle will amount to a waste of federal law enforcement resources that could instead help bring actual criminals to justice, as Tim Lynch reminds us.

To be sure, I have no problem with the feds seeking to locate and prosecute people who actually threaten to commit murder — which, if transmitted in interstate commerce, is a federal crime under Title 18 USC. § 875.

Threatening to kill a federal judge is especially problematic; assassinations of federal judges do happen from time to time. As such, it’s only natural that law enforcement takes such threats seriously.

Yet, while the comments identified in the subpoena are undeniably vile, they’re also protected by the First Amendment, and rightly so. Hyperbolic political statements have a long history in the United States.

For instance, Ken Shultz notes that Martin Luther King, Jr., once said that “the hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.” Sound familiar?

As for the comments about shooting a federal judge, consider the Vietnam War-era prosecution of Robert Watts for “knowingly and willfully threatening the President.”

At age eighteen, Watts said that if he were forced to join the military and “carry a rifle,” then the “first man I want to get in my sights is L.B.J.” The Supreme Court reversed his conviction, finding that Watts had merely “indulged” in a “kind of political hyperbole.” Id. at 708.

Although these statements, like the Reason comments quoted above, are understandably offensive to many listeners, causing offense alone is no basis for outlawing speech. To the contrary, “a function of free speech under our system of government is to invite dispute,” as the Supreme Court has noted. Indeed, speech can sometimes “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

As for the hyperbolic comments posted on Reason about Judge Forrest, they are plainly not “true threats,” but mere “angry bluster,” as Ken White explains in detail.

The remarks, he notes, were not directed to the Judge, or reasonably calculated to reach her; instead, they appeared on a libertarian political blog notorious for its trash-talking commentariat. The comments lacked any specifics about a specific person’s plans to actually carry out an act of violence; instead, they merely expressed a general desire that a particular person be killed.

And while courts have held on occasion that hoping for someone’s death without evincing a desire to personally kill them can be a true threat, this requires some “causal connection” between the statement and the desired outcome. Again, the Reason comments don’t come close to meeting this threshold.

In short, even if the six Reason users are indicted on federal criminal charges, the First Amendment means the government is all but guaranteed to lose (barring the unlikely scenario the US Attorney’s office is sitting on some damning evidence it hasn’t disclosed).

If the commenters didn’t break the law, then, why can the government use its subpoena power to force Reason to hand over whatever personal information it’s collected about them? Because, as Ken White frets, the US Attorney’s power to issue grand jury subpoenas is so broad that, in most cases, they can be quashed only “when they are irrationally burdensome … or for an improper purpose.”

Moreover, a grand jury — which, again, is typically just another word for “federal prosecutor” — is afforded “wide latitude” in investigating potential crimes, and the “law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.”

And when a grand jury subpoena is “challenged on relevancy grounds the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.”

What about a grand jury subpoena that implicates First Amendment interests?

In theory, “where values of expression are potentially implicated,” a district court should act with “special sensitivity” to “prevent the chilling effect” of “prosecutorial abuse,” in the words of the Fourth Circuit.

In practice, however, courts are extremely reluctant to quash a federal grand jury subpoena on First Amendment grounds. For instance, the District Court for the District of Columbia held in 2011 that “merely issuing a subpoena to uncover the identity of the speaker so that the police can ascertain whether a threat is valid cannot be deemed a Constitutional violation.”

Where does all of this leave us? Reason could move to quash the subpoena — or at least petition the court to limit its scope to identifying information about the more threatening commenters — on the basis that, absent additional evidence that its commenters’ identities are related in any way to some criminally actionable threat, enforcing the subpoena would undermine Reason commenters’ constitutional interest in anonymity while generating information of “negligible value to the government.”

However, because Reason probably could not show the US Attorney is acting in bad faith, or that complying with the subpoena would be unduly burdensome, Reason’s chances of prevailing if it chooses to fight back are not good. That’s a problem for all of us.

This piece first appeared at CEI.org.


Ryan Radia

Ryan Radia is an Associate Director of Technology Studies at the Competitive Enterprise Institute. He focuses on adapting law and public policy to the unique challenges of the information age.