Of all the places to argue that only the government should be trusted with guns, Beto O’Rourke picked…Kent State University.

Kent State is, of course, the location of the infamous 1970 shooting that left four students dead and nine others injured. The shots were fired not by private citizens but by members of the Ohio National Guard, who shot at a crowd protesting America’s involvement in the Vietnam War.

Invoking armed agents of the state gunning down unarmed civilians is an interesting way to argue that Americans would be better off if the government forcefully disarmed private citizens. But hey, I guess that’s why we keep being told Beto’s an “unconventional” candidate.

Since the mass shooting at a Walmart in his hometown of El Paso, Texas, former congressman O’Rourke has tried to jump-start his flailing presidential campaign by being the candidate who is most gung-ho about gun control. He made headlines at the most recent Democratic debate by promising, “Hell yes, we’re going to take your AR-15.” More specifically, he is proposing a ban on “the manufacturing, sale, and possession of military-style assault weapons”—that is, semiautomatic rifles with certain cosmetic characteristics.

“Americans who own AR-15s [or] AK-47s will have to sell them to the government,” O’Rourke has explained. “We’re not going to allow them to stay on our streets, to show up in our communities, to be used against us in our synagogues, our churches, our mosques, our Walmarts, our public places.”

As J.D. Tuccille pointed out last month, there’s scant evidence to suggest that such a policy could be implemented effectively, and it’s pretty unclear how O’Rourke would get gun owners to comply with the law.

When New Jersey implemented a similar policy in the early 1990s, the state obtained a mere 18 guns of the estimated 100,000 to 300,000 firearms owned by Garden State residents—and only four were turned over voluntarily. Australia’s much ballyhooed gun buyback program netted between 650,000 and 1 million firearms, about a quarter of the estimated number of guns owned by Australians at time. There are believed to be more than 350 million privately owned guns in the United States.

Taking the rest would require a massive mobilization of federal, state, and local law enforcement.

O’Rourke’s plan to take guns out of private citizens’ hands would not have prevented the Kent State massacre. But it would create lots of new opportunities for agents of the state to point guns at Americans who aren’t a threat to anyone.

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2019-09-27 20:04:00

The prison staff carted the books away in late January, removing more than 200 titles from a small library inside the Danville Correctional Center in Illinois.

The library was part of the Education Justice Project (EJP), a college education program for inmates run by the University of Illinois. The prison removed the books without notice; Rebecca Ginsburg, director of the program, says it took weeks to get an answer about why the library had been pillaged. She was eventually told that prison officials had decided the books hadn’t gone through the proper review process. Emails obtained through public records requests later revealed that they had been concerned about “racially motivated” materials in the library.

According to Ginsburg, the removal followed months of increased scrutiny that included rejecting books from the proposed curriculum for the upcoming semester. Among the rejected or removed titles: W.E.B. Du Bois’s The Souls of Black Folks, the autobiography of Frederick Douglass, and Booker T. Washington’s Up From Slavery.

“At one point they actually threatened to throw away the books that they had confiscated, over 200 books,” Ginsburg says. “I’m a professor, so to me books are this magical thing, and to talk about throwing books away…it was extraordinary.”

The censorship drew national headlines and brought embarrassing attention to the state prison system. The Illinois Department of Corrections has since revised its literature policies, although the books taken from EJP were never returned.

The incident at Danville was just one of several stories about prison censorship to make the national news this year, and only a small example of the unmitigated power of prison censors across the country, according to a new report released this week by PEN America.

The report details how U.S. prisons arbitrarily apply book bans in the name of institutional security. Texas, for example, bans The Color Purple but not Mein Kampf. Michelle Alexander’s The New Jim Crow was banned in prisons in North Carolina, Florida, Michigan, and New Jersey, although those bans were reversed after they received media attention. A New York prison tried to ban a book of maps of the moon, claiming it presented an escape risk.

The PEN America report concludes that prison book censorship policies across the country “are almost uniformly overbroad, arbitrary, under-examined, under-challenged, and maximally restrictive well past the point of reason.”

Other state prison systems have tried to ban donations of used books to inmates, citing flimsy concerns over contraband. And publications that report aggressively on the criminal justice system, such as Reason, are often impounded by prison censors. Prison Legal News, a vital source of legal information for inmates, is completely banned in Florida prisons.

“We see over and over again that it’s disproportionately books by or about people of color, books that are critical of the criminal justice system, and books that advocate minority or controversial political or social views,” says David Fathi, director of the American Civil Liberties Union (ACLU) national prison project. “This is the kind of content-based and viewpoint-based censorship that is most inimical to First Amendment values.”

The result is that the hardest place to read about the U.S. criminal justice system—the subject of bestselling books, a glut of podcasts, and prestige television shows and documentaries—is from inside the U.S. criminal justice system.

For example, earlier this year the Arizona’s Department of Corrections (ADOC) banned Paul Butler’s Chokehold: Policing Black Men, a nonfiction book about race and policing. The ACLU sent a demand letter arguing the ban violated the First Amendment. The ACLU was preparing to litigate when the ADOC relented and reversed the ban in June.

In April, the ACLU sent a letter to the Chatham County Sheriff in Georgia urging him to rescind a policy that banned almost all books except for the sparse few already on the jail’s book cart.

Maryland officials also briefly floated a proposal to severely limit from its prisons. They scrapped the idea after receiving a swift public backlash.

Last year, Pennsylvania and Washington both attempted to ban donations of used books to inmates. All books would have to be purchased through approved vendors, which often offer limited selections at high prices or require inmates to purchase electronic tablets. The prisons cited security concerns over contraband, but news investigations showed there was little actual evidence of smuggling via donated dictionaries.

Nonprofit groups like Books to Prisoners, which sends thousands of volumes a year to inmates who request them, say such policies have been getting more restrictive in recent years.

“Prison book programs have been having to deal with this for years and years and years, and it just seems to be getting worse since the end of 2017,” says Michelle Dillon, a board member of Books to Prisoners.

Dillon says Books to Prisoners spends about $70,000 a year sending packages of books to inmates, roughly $45,000 of which goes toward shipping costs. It doesn’t have the money or resources to keep track of shifting mailroom policies and book ban lists. (Kansas prisons, for example, banned 7,000 different titles until recently.)

“We just have to cross prisons off the list at some point and redirect our limited money towards those prisons where we can be assured that we’ll get in,” Dillon says. “It’s unfortunate of course for the people who are incarcerated in that state, because I know they want books, and we want to send them books. But oftentimes you just have to send a little note card back to say, ‘Hey, we’re sorry, but your facility does not allow our program.'”

For inmates, more than 95 percent of whom will be released at some point, books more than just a temporary mental escape from confinement.

“Those books tell people who are incarcerated not to give up,” Jarrett Adams, a formerly incarcerated civil rights attorney, told PEN America. “I would not be where I am today if it weren’t for having been able to read certain books that addressed systemic racism and mass incarceration.”

While what goes on behind prison walls may seem like a distant concern for people on the outside, Fathi says it is quite the opposite.

“Prisoners are the canary in the coal mine,” Fathi says. “When you look at how the government treats prisoners, you see what unchecked, arbitrary government power looks like. And it’s not pretty.”

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: A special Ninth Circuit edition recorded before a live student audience at UCLA Law. Featuring UCLA Professors Eugene Volokh and Richard Re as well as Jones Day Associate Robert Everett Johnson. Click here for iTunes.

  • Fed up with conditions for laboratory animals at Howard University, attending veterinarian contacts the NIH to let it know about the recent deaths from heat exhaustion of 21 mice. The university responds by shortening her contract by six months. D.C. Circuit: Which may be illegal retaliation against a False Claims Act whistleblower.
  • During a criminal trial of four co-defendants, a juror’s wife is diagnosed with a brain tumor. Three of the defendants agree to proceed with a jury of 11. The government agrees to proceed if all four defendants agree to do so. The fourth defendant—who has tried repeatedly to get out of the case—holds out. The court declares a mistrial. Does double jeopardy bar retrial? First Circuit: Not at all. The mistrial was manifestly necessary. (Plus, the defense now has a sneak peek at the prosecution’s case.)
  • Allegation: Connecticut voting law counts prisoners in the district where their prison is located rather than their home district—even though most do not have the right to vote and those who do can vote only in their home district. Which artificially inflates voting power in the white rural areas where prisons are located and deflates representation in the majority-minority urban areas of the state. Second Circuit: This should be heard before a three-judge panel at the district court.
  • The Mohegan Sun Arena, a publicly owned Wilkes-Barre, Penn. event space, sequesters protestors in a special enclosure near the arena’s entrances. The facility also prohibits protestors from swearing or using megaphones. Animal rights group: Those restrictions violate the First Amendment! Third Circuit: Yes and no. The special enclosure is valid since that’s a reasonable measure to prevent congestion at the arena’s entrances. But singling out protestors for bans on profanity and megaphones? The arena hasn’t come close to justifying those rules.
  • When New Jersey repealed its prohibition on sports betting, the NCAA, NFL, NBA, MLB, and NHL sued, arguing repeal violated federal law. The leagues won in the trial court, but racetrack owners who wanted to offer sports betting eventually won before the U.S. Supreme Court. Can the racetrack owners now collect on the $3.4 million the leagues were forced to put up as bond after they won a temporary restraining order in the trial court? Third Circuit (over a dissent): That’s the risk the leagues ran when they asked for a TRO.
  • Dallas-area photographer responds to the scene of an overdose, begins photographing victim and paramedics. Transit officer orders him to stop and arrests him when he refuses to do so. Whoops! Transit department guidelines—adopted while the officer was on medical leave—explicitly permit this sort of photography. Fifth Circuit: Reasonable officers know they can’t arrest you for things that aren’t illegal. No qualified immunity.
  • This Sixth Circuit opinion (holding that sovereign citizens’ unconventional beliefs are not enough to stop them from representing themselves) contains, in the view of your humble editors, a surprisingly touching tribute to individual autonomy—as well as a narrative menagerie including Batman and 46 quintillion dollars.
  • The University of Michigan has established a “Bias Response Team” that responds to student-reported “bias incidents.” Although it lacks any power to impose punishments, it can make referrals to police or the university. Does that unconstitutionally chill speech? A free speech advocacy group whose members attend the school has associational standing to find out, says two-thirds of a Sixth Circuit panel.
  • Detroit police raid home. Oops! The owner is—unbeknownst to the officers—a licensed medical marijuana provider, who is not pleased when an officer shoots, kills two of his dogs. Owner: The dogs were calm. Officer: The dogs were aggressive. And one was unlicensed and therefore contraband. Sixth Circuit: No qualified immunity. The owner can sue the officer.
  • Sixth Circuit: Getting stinking drunk and then cleaning a gun may be “dumb,” but, without more, it does not justify involuntary commitment. No qualified immunity for cops who committed a woman for doing just that. Dissent: You’d be singing a different tune if the gun owner had actually harmed herself following the text message “Good bye.” The police acted reasonably.
  • The U.S. Supreme Court’s decision in Reed v. Town of Gilbert worked a revolution in the First Amendment treatment of content-based regulation of signs. Seventh Circuit: Which doesn’t help the owners of Leibundguth Storage & Van Service in Downers Grove, Ill., whose sign (picture in opinion) is treated just as badly as anyone else’s.
  • Allegation: Driver attempts to exit mall parking lot to avoid approaching security guard, an off-duty Little Rock, Ark. police officer. As the car drives away from the officer, he opens fire, hitting the driver in the back four times and a passenger in the face. Excessive force? Officer: The car was actually backing up toward me and other guards when I fired. Eighth Circuit: This goes to a jury. No qualified immunity. (Per The Washington Post, the officer was involved in 69 use of force incidents over six years.)
  • Tenth Circuit: There’s chutzpah and then there’s arguing that the guards you employ to provide security to state-legal marijuana businesses can’t avail themselves of federal labor law because they participate in “drug trafficking.”
  • State court in Bryan County, Ga. issues man an $895 speeding ticket. Man: I don’t have that kind of cash on me right now. Judge: OK, pay it within two weeks. The man pays the fine the next day. But months later, a probation officer submits a warrant for the man’s arrest for … not paying the fine. And months after that, he’s arrested. And briefly jailed. Which causes him to get fired from his job. Eleventh Circuit: The probation officer enjoys qualified immunity from the man’s federal claims, but she’s not immune from the man’s state-law tort claims.
  • Colorado police arrest two men for handing out information on jury nullification outside a Denver courthouse. A First Amendment violation? Colorado Supreme Court (over a dissent): No need to decide that. The statute applies only to efforts to influence a specific case, and these guys didn’t care what cases prospective jurors might sit on.
  • And in en banc news, the Fourth Circuit will not reconsider its holding that the feds’ power to regulate interstate commerce permits them to prosecute a man who attacked a coworker out of anti-gay animus. Judge Agee, who dissented from the panel ruling, writes that the issue of when noneconomic activity falls under the scope of the Commerce Clause is one the Supremes should address “without delay.” The Fifth Circuit, however, will reconsider its recent holding that Mississippi’s legislative boundaries (redrawn in 2012) dilute African Americans’ voting strength in the Mississippi Delta in violation of the Voting Rights Act.

Zion, Ill. forces landlords to force tenants to submit to warrantless inspections of their homes. Landlords who refuse may face fines of up to $750 per day or have their right to rent property revoked altogether. Which doesn’t sit right with Dorice and Robert Pierce, who have called their apartment home since 2000. After the Pierces demanded that inspectors produce a warrant before searching their home, officials threatened them with eviction (and their landlord with ruinous fines). Which is unconstitutional, so today the Pierces and their landlord joined with IJ to challenge Zion’s rental inspection ordinance in federal court. Click here to learn more.

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2019-09-27 19:15:26

Can a federal judge sentence you for a crime your jury says you didn’t commit? In a sane world, the answer would be “no.” If a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then doles out the sentence should be able to consider only that one guilty verdict.

Yet federal judges can, and often do, use what’s called “acquitted conduct”—charges for which a person has been found not guilty—when sentencing defendants for the crimes the jury says they did commit. It’s a horrifying bug in the federal criminal justice system that doesn’t get nearly enough attention. Until now. 

Sens. Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that would expressly prohibit the use of acquitted conduct at sentencing. “If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.”

The power of acquitted conduct is a deadly arrow in the prosecutor’s quiver. The fact that a judge will consider at sentencing every offense the prosecutor charges, even if jurors don’t buy the prosecutor’s pitch, essentially allows prosecutors to game the justice system. They can charge a defendant with an offense they know they can prove beyond a reasonable doubt, and then charge more serious offenses, with tougher penalties, that they can’t prove. Even if jurors act responsibly by convicting only on charges proved beyond a reasonable doubt, and refuse to convict on the reach charges, the prosecutor still wins when the judge takes all the charges into consideration at sentencing.  

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt,” Durbin said in a statement. “However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.”

A laundry list of criminal justice reform groups supports Durbin and Grassley’s bill, titled the Prohibiting Punishment of Acquitted Conduct Act. The bill would amend the federal criminal code “to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing,” and it would “define ‘acquitted conduct’ to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.”

The bill has support from several libertarian and conservative groups, including Americans for Prosperity, the American Conservative Union, Americans for Tax Reform, FreedomWorks, Prison Fellowship, the R Street Institute, Right on Crime, and Koch Industries. 

It’s not hard to see why this bill has bipartisan support. But to understand why the practice exists at all—and why some people will inevitably eventually oppose this bill—it helps to think of the federal criminal code as a choose-your-own-adventure book in which three out of every four narrative choices end in “go to prison.” Police and prosecutors want to keep it that way.

The use of acquitted conduct at sentencing empowers prosecutors at the very early stages of the justice adventure. Upon gathering enough evidence to make an arrest, the prosecutor can file enough charges that, if the defendant is convicted of all of them, he or she will go to prison for a very long time. So the prosecutor encourages the defendant to plead guilty and receive a lesser sentence. Staring down the barrel of 20 years in prison if they lose at trial, versus 10 or five if they plead guilty, more than 95 percent of federal defendants plead guilty.

But what if the defendant didn’t do everything she was accused of, or if the prosecutor’s evidence against her is weak? Well, she can take her case to trial and have it out before a jury. And instead of 20 years in prison, or 10, or five, maybe she is acquitted of all charges and gets no time in prison, or is convicted of only a fraction of the charges and spends only two or three years in prison.

That’s when acquitted conduct comes into play. Prosecutors can lose before the jury and still win at sentencing. 

“Using acquitted conduct to set sentences heightens the temptation of prosecutorial overreach by blunting the downside to the government,” reads an amicus brief filed by FAMM* and the National Association of Federal Defenders in Asaro v. United States, an acquitted conduct case that the Supreme Court has been asked to hear. The authors go on to write: 

If the defendant succumbs to the government’s aggressive charges and pleads guilty, the government wins; if he goes to trial and is convicted on those charges, the government still wins; and if he goes to trial and persuades a jury that he is innocent of them, the government still wins, so long as it secures conviction on a more easily proved offense and persuades the sentencing judge of his guilt by a preponderance of the evidence. When acquittal of certain counts is just a “speed bump at sentencing”…prosecutors have little to lose by larding an indictment with charges they cannot prove beyond a reasonable doubt. The government has conceded as much, acknowledging that punishing acquitted conduct encourages charges prosecutors would otherwise forgo.

This is a bad practice. Thankfully, it’s one Congress appears willing to address without waiting for the Supreme Court.

  • Full disclosure: I served as FAMM’s communications director from 2014 to 2016. 

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Footage went viral this week of a woman, apparently from the United States, telling off some Hong Kong protesters for desecrating their city with protest posters and graffiti.

“Is this OK? Is this respectful?” she asks, pointedly gesturing to a defaced nearby wall, before trailing off with a tone-deaf trump card, “If my mother saw me write this…”

The woman then questions Hongkongers about the aims of their protests, which are now in their 16th week. The protests started over an extradition bill that would have allowed suspected criminals to be sent to mainland China, but they have expanded to embrace broader demands for more liberty and self-government.

Hong Kong is technically part of China, but the city’s citizens are allowed far more freedom—including freedom of the press and the right to elect some of their legislators—under the “one country, two systems” policy, which will be sunsetted in 2047. Many Hongkongers fear being placed under authoritarian Chinese rule, knowing that on the mainland censorship is the norm, the Communist Party must be appeased at every twist and turn, and political opponents get disappeared (often before showing up on state-run TV with a tearful coerced confession or histrionic display of remorse).

“Find me one case where violence led to a solution,” the woman in the video challenges the Hongkongers. “What a waste of time for everybody,” she says of the demonstrations. In fact, the protests have had at least one significant, if tentative, success: Hong Kong’s chief executive, Carrie Lam, conceded one of the movement’s five demands three weeks ago by withdrawing the bill that set off the protests.

“You guys value freedom more than safety. Do you agree? I think safety is more important than freedom,” the American says. “If you have a safe environment, you can communicate.”

But it’s freedom of speech that lets people be free of legal retribution for the words they say. It’s freedom of speech that allows people wide latitude in how they express themselves, and where, and to whom. A “safety” enforced and ensured by an authoritarian police force is a fickle promise if you piss off the people in charge, and it doesn’t necessarily mean safety for everyone. Sometimes one person’s feeling of safety comes at the expense of other people’s freedoms. Hongkongers, attempting to keep Beijing’s influence at bay, are keenly aware of this.

“China’s thinking is safety is more important than freedom,” the woman claims, before beginning to chip away at posters with her nail. “We shouldn’t do this! This is my city, too!”

At one point she speaks something that sounds like Cantonese. So she could be an expat living in Hong Kong, concerned about the degree to which the city’s been torn apart by civil unrest. But her safetysplaining makes it clear that she either doesn’t understand or just doesn’t care about how high the stakes are. One gets the impression that she hasn’t had her freedom seized for the sake of someone else’s safety.

Under full Chinese rule, Hongkongers will get neither freedom nor safety. An authoritarian regime that forces subservience to the party cannot be trusted to provide either one.

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2019-09-27 18:00:02

An off-duty Los Angeles police officer who shot and killed an unarmed, apparently developmentally disabled man in a confrontation in a Costco in June will not face criminal charges for his actions.

A grand jury declined to indict Salvador Sanchez for shooting and killing David French, 32, after the two of them had a brief and vague fight in a Costco in Corona, California.

French was apparently the aggressor, but he was unarmed. According to multiple accounts of the incident, French, with no provocation, struck Sanchez on the back of the head while they were waiting in line at a food sample station. Sanchez says he was holding his infant son in his arms when he was knocked down suddenly and briefly knocked out. His lawyer, David Winslow, said that when Sanchez reawakened, he believed he was “fighting for his life.”

Sanchez fired 10 shots, killing French and critically injuring French’s parents.

After the encounter, French’s family came forward to explain that French was nonverbal, intellectually disabled, and diagnosed with schizophrenia. Family members said French had no history of violence but had recently been prescribed a new medication.

A security camera in Costco captured part of the encounter, but a court order barred its release until a grand jury decided against an indictment on Wednesday. Unfortunately, the video, which can be viewed here, is not terribly illuminating. It does not show Sanchez shooting French, but it does show French and a family member falling—likely his father, who said he attempted to intervene between his son and Sanchez—to the floor as Sanchez, off-screen to the left, shoot at them.

It is worth noting that the video appears to show the Frenches as moving away from Sanchez and not attempting to move aggressively toward him. And Riverside County District Attorney Mike Hestrin has said that less than four seconds elapsed between the point where French knocked Sanchez down and Sanchez got up and began shooting. Today, the Los Angeles Times reports that Sanchez was 20 feet away from the men when he began shooting, while still sitting on the floor after being knocked down.

Hestrin could decide to prosecute Sanchez even without the grand jury indictment. But he does not intend to, because 12 of the 19 members of the grand jury said they didn’t see enough evidence to justify charges.

Meanwhile, the LAPD is doing its own administration investigation to determine whether Sanchez’s decisions were appropriate under department policy.

Everybody involved in the shooting sees this as a tragedy, and nobody is arguing that French deserved to be shot and killed. The question is whether Sanchez’s use of lethal force was justified given the situation.

Would this response be the same if Sanchez were not a police officer? California political leaders are quick to implement tight gun controls and to give officials the power to seize citizens’ weapons. It’s hard to fathom a Californian who is not part of law enforcement getting to shoot an unarmed man in a massive store while people ran away screaming without so much as a slap on the wrist.

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President Donald Trump and Prime Minister Shinzo Abe of Japan have reached a deal that promises to cut tariffs and boost trade between the two nations. That’s good news. But the agreement is also a disappointing reminder of a better deal that could have been.

The pact, announced Wednesday, is an undeniably positive development for American businesses and a rare pro-trade maneuver from the Trump administration. Japan agreed to reduce or eliminate tariffs on many American agricultural exports, including beef, pork, corn, and some fruit. In return, the U.S. will reduce tariffs on Japanese industrial products, bicycles, flowers, tea, and other items. The deal also bars either country from raising duties on digital products, such as streaming videos, music, and video games.

A joint statement issued by the two leaders states that the agreement is a step toward settling other tariff-related issues—a signal that Trump’s threat of hitting Japanese-made cars with tariffs could be off the table now.

“This is a huge victory for America’s farmers, ranchers, and growers,” Trump said at a press conference announcing the deal. “And that’s very important to me.”

Indeed, increasing access to Japanese markets could be a $7 billion boost for American farmers—who have been hit particularly hard by Trump’s trade wars, which have sharply reduced exports to China. But American farmers could already have had greater access to Japan, and to a number of other countries around the Pacific Ocean, if Trump had not yanked America out of the Trans-Pacific Partnership (TPP) shortly after taking office.

Trump’s opposition to the TPP, a 13-nation trade agreement the Obama administration was trying to put together, was supposedly rooted in his belief that the bilateral trade deals he promised to negotiate would be better for Americans. But the very agricultural tariff reductions Trump is trumpeting as a victory for American farmers in his Japan deal were also part of the TPP.

In other words, if the U.S. had remained in the TPP, American farmers would already be benefitting from lower tariffs on beef and pork exported to Japan. And they would have greater access to other nations too. Trump is celebrating the benefits of a single trade pact when he could have had much more.

“It really is a pretty small-scale trade agreement,” says Clark Packard, a trade policy counsel with the R Street Institute. “The TPP was a better deal than this. It encompassed a lot more areas of trade. It had more members, it was more expansive, and we wasted a lot of time and effort to get to this point.”

The TPP would have eliminated 18,000 tariffs that the partner countries currently impose on American exports. It also would have included soybean exports, which are notably not part of the U.S.–Japan deal.

The TPP was not perfect. Like any trade deal, it would have set rules that favored some politically connected U.S. exporters. It was hundreds of pages long, much of which was dedicated to trying to impose American labor, environmental, and intellectual property rules on other countries. In an ideal world, politicians and bureaucrats would have no role to play in the trade between people and businesses, no matter how many national borders are crossed in the process. If Trump wanted to scrap the TPP in favor of simpler deals that merely reduced tariffs and other barriers to trade, that would have been an improvement.

Instead he has done the opposite. He has raised tariffs on many imports—which means hiking taxes on American consumers and businesses—and his decision to abandon the TPP deprived American businesses of new opportunities in Asian markets.

Signing a trade with Japan is a small step in the right direction, but it only cancels out a portion of the damage Trump has done. “It’s better than the status quo,” says Packard, “but not as good as it could have been.”


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2019-09-27 17:00:35

Google handles 88 percent of search traffic in the United States. Facebook has more than 2.4 billion active monthly users worldwide. Half of all U.S. online retail is projected to go through Amazon by 2021.

Both Democrats and Republicans have called for breaking up the tech giants, holding them legally liable for what others say on their platforms, and imposing new regulations that would stop them from misusing their customers’ personal information. But there’s also a growing movement, which includes some of the web’s early pioneers, to come up with technological ways to counter Facebook, Amazon, Twitter, and Google.

The goal is to build a better, more decentralized web.

“There are so many different possible ways of decentralizing the internet, and what’s lacking is the legal right to interoperate and the legal support to stop dirty tricks from preventing you from exercising that legal right,” says Cory Doctorow, a science fiction author and tech journalist who’s been thinking and writing about the web since Tim Berners-Lee introduced it to the public in the early 1990s.

Berners-Lee and other web pioneers intended for their creation to be decentralized and open-source. “The cyber-utopian view was not merely that seizing the means of information would make you free, but that failing to do so would put you in perpetual chains,” says Doctorow.

There are many theories about why the web became centralized. Doctorow largely blames the abuse of intellectual property law to defeat the decentralized “free software” movement championed by the programmer and activist Richard Stallman. Stallman helped create the popular open-source operating system Linux after freely modifying Unix, Bell Labs’ proprietary system.

But the Digital Millennium Copyright Act, passed in 1998, became an impediment to the open and permissionless approach to software development. The law was intended to prevent duplication of copryrighted works and was eventually applied to all software. Breaking “digital locks” to learn from, interact with, and improve upon the code of dominant web platforms became a federal crime. It’s standard practice for today’s tech companies to shield their proprietary code from would-be competitors by wielding the power of an increasingly expansive intellectual property regime.

“And so this thicket of exclusive rights around products that can be invoked to prevent new entrants for making add-ons, compatible products, or even competing products is a really important change in the landscape,” says Doctorow. “One that has made it very hard for new entrants to emerge and I think is in large part responsible for the concentration in the industry.”

Despite these legal and political challenges, innovators are attempting to create new decentralized ecosystems of web services.

Mitra Ardon is the head of decentralization at the Internet Archive, a digital repository of more than 50 petabytes of images, movies, and texts—including more than 330 billion webpages.

“The archive’s mission is to make all of mankind’s knowledge available online forever to everyone for free, which is a pretty big vision, right?” says Ardon.

He says the history of the web is too important to be held in custody by a single organization. So he’s overseeing a plan to migrate the Internet Archive’s more than 50 million gigabytes of data to a distributed network maintained by users.

A beta version of this peer-to-peer network is already operating and publicly accessible.

“I think what [a more decentralized web] would look like is a world where servers were everywhere, that your internet router at home would also be a server,” says Ardon.

Doctorow doesn’t think the decentralized web can take off without government intervention. He agrees with Sen. Elizabeth Warren (D-Mass.) and Josh Hawley (R–Mo.) that the Federal Trade Commission should break up the tech giants.

“[The tech giants] got giant doing what we used to ban and that we stopped banning right when the tech industry started,” says Doctorow, who argues that Ronald Reagan and the federal courts undermined the original intent of the Sherman Antitrust Act during the 1980s using the legal theories of former federal judge Robert Bork:

Every president since Reagan has expanded Bork’s doctrine, allowing for even more aggressive market concentration, producing a country (and a world) where a handful of firms dominate virtually every industry, from telcoms to talent agencieswrestling to eyewear, to Big Tech

But in the October 2019 issue of Reason magazine, economist Thomas Hazlett argues that sweeping antitrust action has often entrenched existing players, largely due to the phenomenon of regulatory capture:

The late Nobel laureate George Stigler started as a “bust ’em up” guy: In 1952 he wrote an article in Fortune stating the “case against Big Business” and calling for the dissolution of General Motors. But through observation and analysis, Stigler’s view progressed until he arrived at an antitrust policy that gave dynamic forces their due and put consumer interests at the center. He came to see government institutions as imperfect, and he posited in a 1971 paper the theory of “regulatory capture,” whereby “regulation is acquired by the industry and is designed and operated primarily for its benefit.”

Arguments about antitrust aside, the technological tools needed to bring about a more decentralized web may already exist, though they’re not yet widely implemented.

“Web 3.0 has this wonderful set of trust baked into the Internet itself,” says Molly Mackinlay, a former Google programmer and a current project lead of the InterPlanetary File System (IPFS), a communications protocol that’s meant to replace the hypertext transfer protocol (HTTP) that most of us use to access the web now. While HTTP connects your computer to a particular server, IPFS scours the network for a piece of content, which gets assigned a unique ID marker and connects you to whomever happens to be hosting it.

Mackinlay wants a decentralized web that relies less on centralized servers and more on distributed storage networks—such as Filecoin, a cryptographic token that rewards users for storing data. This, she says, would be an effective way to sidestep the dangers of censorship and overregulation.

“That’s a better, safer, more resilient world, which doesn’t end up…susceptible to authoritarian manipulation and control,” says Mackinlay.

Produced by Zach Weissmueller. Camera by Alexis Garcia, John Osterhoudt, and Weissmueller. Opening graphic by Lex Villena. Additional graphics by Meredith Bragg.

Photo credits: Preston Ehrler/ZUMA Press/Newscom, Stefani Reynolds/CNP/Polaris/Newscom, ITU Pictures (under CC Attribution 2.0 License), Jeremy Hogan/Polaris/Newscom. 

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The sticker appears to be a version of this:

But of course this is constitutionally protected, given the Court’s decision in Cohen v. California (1971) that a jacket bearing the words “Fuck the Draft” was constitutionally protected. Indeed, it’s not even barred by the relevant Tennessee statute (Tenn. Code § 55-8-187), which reads,

To avoid distracting other drivers and thereby reduce the likelihood of accidents arising from lack of attention or concentration, the display of obscene and patently offensive movies, bumper stickers, window signs or other markings on or in a motor vehicle that are visible to other drivers is prohibited and display of such materials shall subject the owner of the vehicle on which they are displayed, upon conviction, to a fine of not less than two dollars ($2.00) nor more than fifty dollars ($50.00). “Obscene” or “patently offensive” has the meaning specified in § 39-17-901 [which restates the First Amendment test for obscenity, and defines “patently offensive” as “that which goes substantially beyond customary limits of candor in describing or representing such matters,” apparently referring to sexual matters.

The word “fuck” in this context doesn’t fall within the First Amendment obscenity test, as the Court recognized in Cohen:

This is not … an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.

The same logic applies here; indeed, the Tennessee Attorney General’s office has acknowledged (Tenn. Op. Atty. Gen. No. 88-44) that

The [statute] will not reach bumper stickers that are in extremely poor taste but are not obscene [under the Supreme Court’s obscenity precedents]. For example, bumper stickers such as “s..t happens,” although unquestionably in poor taste, do not meet the constitutional or statutory standards for obscenity because they do not appeal to the purient interest. Consequently, they cannot be banned as obscene.

See also Cunningham v. State (Ga. 1991) (“Shit Happens” bumper sticker constitutionally protected).

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2019-09-27 16:00:34

Yet another study has concluded that the hoops U.S. women must currently jump through to obtain birth control are unnecessary. In “A Study of Telecontraception,” published in The New England Journal of Medicine, researchers show that it can be safe to get a birth control pill prescription through online consultation and then receive the medicine.

The researchers employed “secret shoppers” to seek birth control prescriptions online, with some indicating conditions that would make it unsafe to take certain brands or, in some cases, to take any oral contraceptive at all. The study was limited—it involved seven women, nine companies, and 63 virtual visits between October 2018 and March 2019. But the results are promising.

In almost all cases—93 percent—the providers followed the Centers for Disease Control and Prevention’s guidelines. Oral contraceptives were prescribed in just three out of 45 visits with potential red flags. That, the authors say, suggests “adherence to guidelines among telecontraception vendors may be higher than it is among clinics that provide in-person visits.”

Writing in the New England Journal of Medicine letters section yesterday, the authors—Tara Jain, Eleanor B. Schwarz, and Ateev Mehrotra, all of Harvard Medical School—define telecontraception as “the provision of contraception through a website or smart-phone app” and note that it has “recently emerged as an alternative to provision at clinic visits.” Some of their findings:

Each visit lasted a mean of 7.5 minutes, during which patients completed an online  questionnaire. Two vendors provided a video call during the visit immediately after patients completed the questionnaire. In 20 visits (32%), a follow-up interaction occurred in the form of text messaging with three vendors, a phone call with two vendors, and a video call with one vendor. Three vendors did not require patient–provider interaction. A prescription was sent electronically to a local pharmacy on the same day as the visit or mailed to the patient’s home within a mean of 7 days (range, 3 to 14 days). The mean total cost (including the initial visit and any required follow-up visits) for a 12-month prescription for an uninsured patient was $313 (range, $67 to $519).

Yesterday was also “World Contraception Day,” marked by a push to make birth control pills available over-the-counter. Activists aim to “free the pill” from doctor’s visits, prescriptions, and trips to the pharmacy. It’s a policy that many medical professionals have recommended, it could go a long way toward curbing unintended pregnancies, and it could truly expand access (not just insurance coverage) when it comes to birth control.

Emergency contraception has for years been available without a prescription. But politics and bureaucracy have prevent the same from happening with regular birth control pills.

This week the American College of Obstetricians and Gynecologists updated its 2012 recommendation to say that not just the pill but all forms of hormonal birth control, include vaginal rings and contraceptive patches, should be available over the counter.

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