2019-07-17 23:49:24

From Elansari v. Jagex Inc., 2019 WL 3202195 (E.D. Pa. July 15), handed down by Judge Mark A. Kearney a mere 5 days after the Complaint was filed:

Amro Elansari sues a video gaming company located in the United Kingdom for allegedly “muting” him from playing his game. {[He alleges that] Jagex Inc. “operates public game open to public — free + membership” [quoting the Complaint]. Although his allegations are far from clear, Mr. Elansari alleges Jagex Inc. bans a player violating the rules of the game. He alleges Jagex Inc. “muted” him without explaining why and then denied his appeal of the decision without reasons.}

[Elansari] pro se alleges the video gaming company deprived him of due process, free speech and human rights…. He also moves for leave to proceed in forma pauperis. We grant Mr. Elansari leave to proceed in forma pauperis but dismiss his Complaint under 28 U.S.C. § 1915(e)(2)(B)(ii).

Mr. Elansari … only alleges constitutional claims. He cannot state a constitutional claim against a private gaming company precluding him for amending to assert a federal question. As he does not assert a state law claim, we dismiss the case without prejudice for him to allege a potential state law claim against parties who may have diverse citizenship….

The hand-written complaint states that “Plaintiff is Streamer ← 2000 hours+ invested.” I’m not a gaming expert, but I assume that the Jagex game involved is likely Runescape, which seems to be Jagex’s main product.

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2019-07-17 22:45:34

A group of conservatives mostly dedicated to removing the stain of individual liberty from their brand met this week for a “National Conservatism Conference.” Superwealthy tech-industrialist Peter Thiel gave one of the keynote speeches. Contemplating his remarks is helpful in assessing what these “national conservatives” are up to.

Thiel used to be roughly identified, including, at times, by me, as a libertarian. One reason was his decision to fund what started as a libertarian-rooted wild idea, Seasteading. Another indicator was his big-money support of an ultimately feckless Ron Paul-oriented SuperPac. These decisions made his warm embrace of Trump back in 2016 confusing, but he has now made it clear he has, and wants, nothing to do with the idea that human liberty is overall good and enriching.

Instead, Thiel has some interests and some enemies, and he wants to use the power of the state as a weapon to help one and harm the other. The main enemies are Google, China, and the U.S. university system. He advocated vigorous police actions against the first and third, and a trade war (at least) against China.

The general focus of his talk is that we should run all decisions through the following prism: Is this policy good for the United States? Not for free individual citizens, not for the human race, but for the United States. Thiel’s answer, at least when it comes to big tech, the current system of higher education, and free trade, is no.

Why he’s attacking Big Tech: Thiel is mad because Silicon Valley imposes a monoculture of political correctness. He didn’t get too specific here, but I think his audience and most of the world gets what he means. Silicon Valley is leftist-progressive, culturally and socially, and accepting—at least in word, if not always deed—of the “identity politics” and “cultural marxism” that Thiel believes are some of America’s biggest problems.

He also thinks it’s notable that Sen. Elizabeth Warren (D–Mass.) is getting the most political donations out of the tech sector. However, given the ideology he promoted at the conference, it’s not entirely clear why Thiel doesn’t consider Warren’s promises regarding health care reform as “good for America,” particularly since he doesn’t seem to think government spending or free-market economics have much relevance to “national conservatism.” In fact, nowhere in his long speech did Thiel decry government spending or praise free-market economics, and nothing he actually did say suggests that either idea is an unspoken underlying presumption of his ideology.

He is also mad at Google—a rival in some ways to Facebook, on whose board he sits and off of whom he made a chunk of his fortune—and he played to the crowd with a hat tip to the fact there were “reasons you might understand” he was “picking” on Google.

“Picking” is putting it mildly: Thiel suggested that the FBI and CIA should visit Google executives, who should then be “asked in a not excessively gentle manner”—a hint of violence which got laughs and claps from the crowd—about the “seemingly treasonous” behavior of not keeping the Chinese government sufficiently far from Google’s research into artificial intelligence.

Thiel pal President Donald Trump gleefully tweeted that he was going to follow Thiel’s lead on this and look into Google’s “treason.” Will this lead to the deaths, by capital punishment, of Thiel’s opponents at Google? I sure hope not.

Using his wealth and influence to conquer his enemies certainly motivates Thiel, as seen in his murder-via-defamation suit of the news and gossip website Gawker. It is more than likely that the site’s exposure of scurrilous and embarrassing facts about people and institutions, while not pleasing to the exposed, have probably on balance been good for America, although Thiel clearly disagreed.

Thiel insists he wants to deal more with “concrete particulars, not abstractions,” when he jabs at free trade: He didn’t say out loud that globalization has been bad for enough people in a significant enough way to end free trade altogether. He also did not talk about decaying industries or bringing American jobs back. He may believe that stuff, but he mostly criticized free-trade ideology because he thinks it keeps us from being tough on China.

He has a litany of complaints about the Chinese government and corporate behavior, and he thinks the proper way to deal with them is to punish any American company or citizen who wishes to do business with the Chinese. He wants tariffs of 25 percent and said that should just be a starting point.

While it’s unlikely the National Conservatism audience is all that worried about global warming or carbon in the atmosphere, Thiel suggests punitive tariffs on Americans who wish to do business with China should or could be sold as carbon taxes, since China is a heavy polluter in that regard.

Chinese companies and governments are certainly committing crimes. American companies and individuals and the U.S. government can and should consider the financial and moral implication of doing business with them, but without trying to punish the rest of America. Some things—like Chinese production practices, how they treat workers, their own internal subsidies, and intellectual property theft—aren’t things we can likely stop, tariffs or not.

Raising tariffs is more likely to harm the Americans who wish to have their products than to change the entire way China runs its economy, but again, Thiel’s vision of conservatism is that we (as in, he) should use government to punish enemies. He thinks it is vital that no one who believes strongly in free trade should be part of making U.S. trade policy.

Taxing and managing American companies’ and citizens’ production and consumption decisions in pursuit of what Thiel calls a national interest is fundamental to his “national conservativism.” In this case, the “national interest” is really the specific interests of the people and industries who can get the government to create trade policies that will benefit them. Managed trade and protectionism are not good for everybody, and nationalist talk is merely a way of disguising personal and sectional interests as somehow good for an entire nation.

Pointing out that we never thought trade barriers between U.S. states made life better for Americans is a cliche, but it’s also an important thing to remember, especially since anti-free-trade sophists are essentially in favor of using state force to help some Americans at the expense of other Americans but feel they can get away with it when it isn’t as blatant as saying “this state wins, and this state loses.”

Framing decisions about the economy and liberty in “national” terms is a cover for those who are best able to manipulate the machinery of the state to get what they want at the expense of others. Thiel’s Palantir makes money providing services that harm innocent humans to the techno-industrial state. It’s not surprising that he encourages that sort of thing, but it might be less valuable as a principle for a political movement.

National conservative types and Trumpers enjoy either appealing to, or teasing, libertarians who don’t like Trump with the declaration that Trump is great for libertarians because he’s so anti-intervention: Thiel ups the ante on this by claiming, with zero evidence, and indeed by bringing up his “libertarian friends,” that Trump has been better on the anti-intervention front than even Ron Paul would have been. He doesn’t elaborate on this, and what Ron Paul would or could actually have accomplished as president will forever remain unproven.

While it is a vital moral imperative that America not blow people up, Trump continues to do just that and has not stopped doing so anywhere. While there have been positive signs here and there, and he has not opened up any completely fresh fronts, I have to call bullshit on Thiel’s unsupported rhetorical outreach to old libertarians that Trump is the most libertarian possible person on war issues. Sanctions and tariffs and immigrant detention camps are all forms of aggression. Trump may not be bombing places that Obama didn’t bomb, but he is hurting innocent people all over the world.

Thiel certainly didn’t help shore up his antiwar bonafides, or those of the “national conservative” movement, when he said the Iraq war might have passed his litmus test had U.S. oil companies been allowed to plunder Iraq’s oil. Most libertarians, including Ron Paul, object to modern war on the grounds that it is bad to commit mass murder and turn homes and cultural legacies into rubble, not because doing those things failed to enrich companies based in the U.S.

While Thiel isn’t quite clear about why American colleges are his other great foe, a case could be made that student debt is holding back the nation as a whole: Then again, it might just be part of his general neo-reactionary sense that universities are the core of the “Cathedral” of progressivism, and hitting them in the purse is the best way to undermine American higher education’s broader progressive influence.

He’s been using his money to encourage the bright to not go to college for years, and good for him. He said outright that he wants to “stick colleges with the bill” for the burden of student loan debt, and coincidentally (or not), another person at the conference, Sen. Josh Hawley (R–Mo.), wants that idea to become law. 

Thiel also called for criminal prosecutions against colleges on the grounds of fraud, which is further evidence that unleashing state violence against people and institutions he doesn’t like or agree is the core of his own brand of “national conservativism.” Thiel is confident they will actually win the battle against higher education, and soon.

Thiel ended his speech with a declaration that the right has retired the notion of “American exceptionalism.” The next day, Trump called on people who think anything is wrong with America might want to leave, which seems to come from the same spirit of “American exceptionalism” Thiel believes Trump has helped kill.

Was there anything good in Thiel’s speech? He began his lecture by repeating an old, and likely valid, complaint that the world might be better off with more changes and improvements in the offline realm, not just the things we see and process on our computers or smartphones. To the extent regulations or taxes are slowing up physical innovation, he could be a useful voice in trying to prevent this, but he didn’t mention either obstacle.

He also seems to have more confidence in the imminent possibilities of matter teleportation, if only Google would get out of the way or concentrate on the right things. What he doesn’t say is that, even if it only has to do with bits and bytes, what Google has given us all for free is, as evidenced by the fact so many of us use Google products, making our lives better, no matter how it affects macroeconomic productivity statistics.

Contemplating a mass movement on the right arising around this speech is depressing. That the forces of the “right” might coalesce around plutocratic power to harm U.S. businesses and citizens via attacking the “abstraction” of free trade shows that libertarians have, as usual, difficult and vital work to do. Thiel’s speech and its enthusiastic reception show with clarity that liberty—yours, mine, American—is no longer particularly meaningful to the “national conservative.”


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At the White House’s third annual “Made In America” event on Monday afternoon, President Donald Trump singled out a bicycle-maker from Tennessee for special praise. The company, Litespeed Bikes, moved its manufacturing operations back to the United States last year, Trump said, and had seen an explosion in sales since then.

That was evidence, the president said, of “an extraordinary resurgence of American manufacturing.”

“When I took office, I was told by the previous administration that manufacturing jobs would be disappearing,” Trump said. “There was no way. They said you’d need a miracle.”

It’s true that American manufacturing has enjoyed a rebound during Trump’s tenure, with more than 500,000 new jobs added in the sector. But while that increase is something to be celebrated, a new report finds little evidence of so-called “reshoring”—that is, of jobs being brought back from overseas, something Trump promised would happen as a result of his tariffs on Chinese-made goods.

In fact, more than a year after the first round of tariffs on Chinese imports took effect, the growth of imports from Asian countries to the United States increased by 9 percent in 2018. That’s the largest annual increase in more than a decade, according to analysts at A.T. Kearney, a manufacturing and trade consulting firm that publishes an annual “Reshoring Index.

That index—which measures domestic manufacturing of consumer goods against imports of the same products from 14 lower-cost countries in Asia—fell for the third year in a row, which shows that manufacturing firms continue to view Asia “as a more desirable location than the U.S. to produce or purchase a wide variety of goods, notwithstanding the trade measures emanating from Washington, D.C.,” the analysts noted.

The report says Trump’s trade policies have had a “backfiring” effect on U.S. manufacturing. Although the tariffs were intended to bring jobs back to America, the data indicate that the higher costs created by tariffs have not outweighed the benefits of manufacturing in lower-cost countries. If anything, higher input costs have harmed American manufacturers who import component parts. American audio equipment companies, like Seattle-based AudioControl, might import electronics from China and assemble finished products in the U.S. The company’s CEO, Alex Camara, says he’s been forced to raise his own prices by between 8 and 12 percent. 

In some cases, the tariffs have encouraged manufacturers to shift production to India, Vietnam, and even Mexico to avoid tariffs—but that’s merely an acceleration of shifts that were already ongoing before the trade war, A.T. Kearney’s report notes. Vietnam’s exports to the United States have doubled since 2013, for example, but the rate of growth skyrocketed during the first quarter of 2019.

Still, China remains by far America’s biggest source of imported manufactured goods. Of the $816 billion in Asian-made goods tracked by A.T. Kearney during 2018, about two-thirds came from China.

It may seem pedantic to point out that Trump’s tariffs aren’t the cause of the manufacturing jobs boom that the president like to talk about. But it matters. American consumers and businesses are paying higher prices as a result of Trump’s trade war—and even industries that were supposed to be protected by those tariffs now seem to be losing. If the tariffs are not helping the ongoing resurgence in American manufacturing, why should the president continue to force those taxes on Americans? Unless he’s secretly trying to make Vietnam and Mexico great again, the tariffs seem to be failing to achieve one of their primary policy aims: bringing jobs back to the United States.

Trump should enjoy his manufacturing boom while it lasts—because he’s not helping it. In fact, the A.T. Kearney report warns, the tariffs might end up having the opposite effect from what was intended. As tariffs increase costs for American manufacturers, they might make CEOs “more likely than ever to orient supply chains” towards lower-cost countries in Asia. And the longer American companies are subjected to higher input costs because of tariffs, the greater risk there is of an economy-wide slowdown.

“If increased tension between the US and its trading partners persists or escalates,” the A.T. Kearney analysts warn, “we may simply be seeing the first harbingers of a considerably darker scenario.”

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2019-07-17 21:05:32

New York’s new rental regulations are an unconstitutional violation of landlords’ due process and property rights, argues a new lawsuit filed this week in federal court.

Late Monday, the Rent Stabilization Association (RSA) and the Community Housing Improvement Program (CHIP), two landlord trade groups, filed a lawsuit against New York City, its Rent Guidelines Board (RGB), and the state and city officials responsible for administering the state’s landmark rent stabilization law.

Essentially a form of rent control, the contested law limits how much the owners of rent-stabilized apartments can raise rents and imposes conditions on when tenants in those units can be evicted. In June, state lawmakers—led by a crop of newly elected progressive legislators who’d campaigned on a platform of “universal rent control”—passed a sweeping update to these regulations that piled on more restrictions still.

RSA and CHIP are arguing that New York’s rent stabilization law is such a poorly designed and irrational means of providing affordable housing that it violates the Fifth and Fourteenth Amendments’ due process protections. They also argue that the law prevents landlords from using their property as they see fit while reducing its value, both of which amount to an uncompensated government taking.

The June changes to the law, plaintiffs say, have only exacerbated these constitutional problems.

“Even before the draconian effects of the 2019 amendments, the New York Rent Stabilization Law was antiquated, inefficient, and unlawful,” said Jay Martin, executive director of CHIP, in a statement. “The law actually makes New York’s affordable housing shortage worse by preventing the construction of new apartments, and improvements to existing apartments.”

“The law is not constitutional and punishes hard-working tenants and small landlords alike. Allowing it to continue to harm New York is no longer acceptable,” said RSA President Joseph Strasburg in a statement.

CHIP and RSA are joined in their lawsuit by several individual property owners.

New York’s rent stabilization law, first passed in 1969, generally applies to private apartment buildings of six or more units built before 1974 in New York City and a few neighboring counties. Allowable rent increases at these buildings are capped by local regulatory bodies, including New York City’s RGB. This year the RGB allowed rent increases of between 1.5 to 2.5 percent.

Landlords are typically required to renew tenants’ leases at rent-stabilized apartments unless they plan on taking their building off the rental market, or want to move into it themselves. Even then, removing occupants can be a years-long process. In the past, developers have paid tenants millions of dollars just to get tenants to move out of their rent-stabilized apartments.

Still, the state’s older rental regulations at least gave property owners a little wiggle room. They were, for instance, allowed to “deregulate” their rent-stabilized units—meaning the rent-stabilization law would cease to apply—when they were occupied by tenants earning over $200,000 a year and allowable rent increases had pushed rents above $2,774 a month.

Even with this provision, the rent stabilization law was showering a disproportionate share of its benefits on wealthier tenants.

A June Wall Street Journal analysis found that the difference between rents at rent-stabilized units and market-rate buildings were far larger in wealthier Manhattan than in the poorer outer boroughs. The same article found that renters in the city’s top income quartile were paying 39 percent less on average to live in rent-stabilized buildings compared to their peers in market-rate apartments. Meanwhile, rent-stabilized tenants in the city’s bottom income quartile were paying only 15 percent less than their peers in unregulated units, according to the Journal.

In 2019, state lawmakers eliminated landlords’ ability to deregulate those higher-priced units occupied by well-off tenants. This years’ changes also made it more difficult for landlords to take their properties off the rental market.

Skewing the law even more in favor of wealthy tenants, argues Monday’s lawsuit, makes a badly constructed law an even worse means of helping poor tenants. Limiting landlords’ ability to remove rent-stabilized units from the rental market, the plaintiffs add, “tightly restricts owners’ ability to demolish and rebuild their own buildings to provide additional capacity,” which also negatively affects supply.

Both changes, the RSA and CHIP argue, effectively take away landlords’ property rights without compensating them or furthering any legitimate government interest. The two groups are asking the court to immediately stop the state from enforcing its rent stabilization law, as doing so “will result in increased development of rental properties, better housing for a larger universe of renters, [and] the amelioration of a constrained housing market.”

Chris Kieser, an attorney with the libertarian Pacific Legal Foundation, says that courts have proven resistant to claims that regulations can amount to a government taking of private property so long as the owner is still able to make a “reasonable return.”

A 2008 lawsuit targeting New York’s rent stabilization law as an unconstitutional property rights violation was rejected by a federal appeals court.

Tenant advocates speaking to The New York Times stressed that landlords were still making money under the state’s regulations. “Landlords’ profits are exorbitant if they are willing to waste their money on frivolous litigation such as this,” Judith Goldiner, head of the Legal Aid Society’s civil law reform unit, told the Times.

Kieser says that RSA and CHIP’s claim that New York’s rent stabilization law is irrational might stand a better chance of success, telling Reason “the irrationality argument could be a good way to go because almost no economist thinks [rent control] is a good idea. It doesn’t help the people it’s intended to help.”

While declining to make a prediction on how federal courts might rule, Kieser described the lawsuit against New York’s rental regulations as “a worthwhile fight” against a policy that’s proven so destructive to property rights.

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2019-07-17 20:10:04

You won’t need to go to the government to get permission to braid hair in Rhode Island anymore. 

Last week, Democratic Governor Gina Raimondo signed a bill to exempt hair braiders from cosmetologist licensing requirements. Previously, people who wanted to work as natural hair braiders were required to complete 1,500 hours of education and training, much of it completely unrelated to hair braiding. 

Under Rhode Island’s old law, for example, hair braiders had to “learn how to use dye, heat, and chemicals—practices they never engage in and outright reject—in order to braid hair legally,” Christina Walsh, activism director at the Institute for Justice (IJ), told Reason. “This is a victory for entrepreneurship, economic liberty, and plain common sense.”

Rhode Island is the 28th state, and the 17th in the past five years, to exempt hair braiders from cosmetology licensing requirements.

African-style hair-braiding skills are “passed down from generation to generation and don’t require formal training,” says state Rep. Anastasia Williams (D–Providence), who sponsored the bill. 

Like most occupational licensing laws, there’s not much evidence that licensing hair braiders actually improves the quality of service. Studies of both hair braiders and cosmetologists have found no connection between the existence or severity of occupational licensing and consumer satisfaction or safety.  

Licensing hair braiders has a disparate impact on minority communities, as these regulations shrink the number of people working in the field. This means that both fewer people of color can do the work and that people of color who use braiding services have to pay higher prices.

Repealing those unnecessary licensing laws can have an immediate impact. Mississippi was one of the first states to abolish hair-braiding licensing in 2005. By 2012, the state had over 1,200 registered braiders, according to an IJ study. In the same year, Louisiana had only 32 licensed braiders. Getting a hair-braiding license in Louisiana requires 500 hours of training. 

Back in Rhode Island, the repeal of hair-braiding licensing is part of an ongoing trend. In 2016, Raimondo signed a budget that repealed over two dozen occupational licenses. These included licenses for such obscure occupations as kickboxers, beer-line cleaners, fur-buyers, histologic technicians, and cytotechnologists.

Nonetheless, licensing laws still cost the state of Rhode Island. In a 2018 study, economists Morris Kleiner and Evgeny Vorotnikov found that occupational licensing laws cost the state almost 7,000 jobs and $675 million in annual state economic output. Among the state’s most burdensome requirements is their regulation of HVAC contractors, requiring an eye-popping eight years of experience before one can contract independently. 

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“It’s time for a revolution in higher education. It’s time for a renegade university.”

That’s the sales pitch for Thaddeus Russell’s Renegade University (RU), a radical, innovative experiment in higher education that is inspired by his 2010 book A Renegade History of the United States. Russell argues that it wasn’t the Founding Fathers, straight-laced business tycoons, or moral crusaders that made America great, but runaway slaves, ladies of the evening, bootleggers, and assorted other dropouts and discontents who defined and created our freedom. In online courses and events held around the country, Russell, a Columbia-trained historian, who has taught at Barnard, Occidental, and other colleges, and his faculty offer bracing, engaging alternative takes on U.S. history, political philosophy, postmodernism, the war on terror, and more. Russell also hosts the Unregistered Podcast

He spoke with Nick Gillespie while visiting New York to participate in a Reason/Soho Forum debate about postmodernism and libertarianism.

To read Thaddeus Russell’s Reason archive, go here.

Last fall, he debated legal blogger Ken White at a Reason event about censorship and social-media platforms.

Audio production by Ian Keyser.

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2019-07-17 18:45:12

On Monday, Sen. Rand Paul (R–Ky.) tweeted about playing golf with President Donald Trump and Sen. Lindsey Graham (R–S.C.) over the weekend. Graham and Paul don’t see eye-to-eye on military intervention in the Middle East, and they’ve essentially been the angel and devil on Trump’s shoulder when it comes to foreign policy. Paul’s tweets made it clear that he’s still encouraging the president to pull American troops out of war zones and bring them home:

Today, Politico reports an interesting agenda on Paul’s end. Paul is looking to serve as Trump’s diplomatic emissary to Iran to try to serve as a counter to the many, many advisers in Trump’s orbit (like Graham and National Security Advisor John Bolton) trying to rev the engines for a brand new war. Politico notes:

Paul has been among the most prominent voices warning against military intervention. When Trump last month called off retaliatory military strikes against Iran after an Iranian military official downed a U.S. drone over international waters, Paul went on the president’s favorite television network to offer unqualified praise. “It really takes a statesman to show restraint amidst a chorus of voices for war,” Paul told Fox News’ Martha MacCallum.

He also took a jab at the administration’s policy, arguing that Iranians view the punishing sanctions imposed by the Trump administration as “an act of war.” …

Earlier this year, Paul pressed [Secretary of State Mike] Pompeo on whether the administration believes it has the authority to battle the Iranian regime under a 2001 law that allowed the U.S. to pursue the fight against al Qaeda and affiliated terrorist groups in Afghanistan and beyond.

When Pompeo tried to sidestep the question, Paul warned the administration not to pursue such a conflict, at least not without Congress’ imprimatur.

“You do not have the permission of Congress to go to war with Iran,” Paul told Pompeo during the April hearing on Capitol Hill. “Only Congress can declare war.”

The hawks consulted by Politico are not happy that Paul might succeed here and whined to Politico about how this could weaken their bargaining position.

But this is good news for anybody who wants our country to seek peaceful resolutions to conflicts rather than threaten—and declare—war. Trump backing off on a militarized response to the downing of a drone off the coast of Iran was the right thing to do. If Paul being friendly with Trump can keep America out of a new war, the relationship is worth more than its weight in blood and treasure.

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2019-07-17 15:18:57

The actor Chris Pratt (Guardians of the Galaxy, Parks and Recreation) was photographed wearing a t-shirt depicting the Gadsden flag. It’s a well-known symbol for libertarians, which dates back to the American Revolution and symbolizes opposition to coercive government.

More recently, it has been a symbol of the Tea Party movement. And since the Tea Party movement contained some bad actors—or at least, some people who had a fairly limited conception of what individual liberty means—the flag’s reputation has been tarnished by association.

This was all Yahoo needed to run the following story: “Chris Pratt criticized for ‘white supremacist’ T-shirt.” While the author did manage to identify the correct Chris, virtually every other word of the headline is misleading.

It’s not just that the Gadsden flag is hardly a white supremacist symbol. The idea that Pratt faced some massive public backlash is also quite wrong. The article cites as evidence a couple of tweets, but aside from the initial tweeter—Hunter Harris, a writer for Vulture—none of them come from verified or prominent accounts. We’re not talking hundreds or even dozens of tweets. And again, we’re talking about just a few tweets. There were many, many more tweets—as evidenced by the replies to Harris—in defense of Pratt, or taking issue with the attempt to drag him for this. “Nothing Really Happened to Pratt Except a Lot of People Thought This Attempted Dunk Was Dumb,” would have been a more accurate headline.

We need a name for the noxious trend of journalists writing stories based on nothing more than a handful of tweets. I propose the Black Ariel Effect, with reference to a previous example of this exact same thing. I talked about it on CNN’s Reliable Sources on Sunday:

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John Paul Stevens, the liberal justice who spent 35 years on the U.S. Supreme Court before retiring in 2010, has died at the age of 99.

Appointed by President Gerald Ford, Stevens played a central role in some of the biggest legal conflicts of the past four decades, from the clashes over gun control and eminent domain to the battles over free speech and medical marijuana. Unfortunately, he had a tendency to vote against the constitutional protections spelled out in the Bill of Rights.

Take the First Amendment. In Texas v. Johnson (1989), the Supreme Court held that burning the American flag in protest is a constitutionally protected form of free expression. The “bedrock principle underlying the First Amendment,” declared the majority opinion of Justice William Brennan, is that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Stevens disagreed. Outlawing “the public desecration of the flag,” Stevens argued in dissent, amounts to little more than a “trivial burden on free expression.” He maintained that a ban on flag-burning easily passed constitutional muster.

And that was not the only form of political expression that Stevens was willing to ban. In his 2011 book, Five Chiefs: A Supreme Court Memoir, Stevens wrote that if he had not retired in 2010, he would have gladly joined Justice Samuel Alito’s lone dissent in Snyder v. Phelps, the case in which the Supreme Court upheld the right of Westboro Baptist Church members to stage noisy and offensive protests outside of military funerals. According to the 8-1 majority opinion of Chief Justice John Roberts, “such speech cannot be restricted simply because it is upsetting or arouses contempt.”

Stevens, like Alito, favored a more censorial approach. “The hate speech during the funeral” was rightfully prohibited, Stevens wrote, because “the speakers intended to use their speech to cause severe harm to a grieving family during a funeral.”

Stevens had an equally deficient view of the Second Amendment. Dissenting in District of Columbia v. Heller (2008), in which the Supreme Court recognized the Second Amendment as securing an individual right to keep and bear arms for self-defense, Stevens asserted that the amendment should offer no protection whatsoever for what he called the “right to possess and use guns for nonmilitary purposes like hunting.” In other words, unlike most advocates of gun control, who typically concede that hunters should still have the constitutional right to own at least some weapons, Stevens’ view of the Second Amendment did not even recognize that longstanding aspect of civilian gun possession.

Stevens’ most controversial opinion is perhaps his 2005 ruling in Kelo v. City of New London, which allowed a municipal government to bulldoze a working-class neighborhood and then hand the land over to a private developer. The Fifth Amendment requires that any taking of private property by the government be for “public use.” But Stevens’ Kelo opinion rested on the more lenient requirement of a “public purpose.”

In response to criticism from myself and others, Stevens later defended Kelo on the grounds that it “adhered to the doctrine of judicial restraint” and was rooted in “Justice Oliver Wendell Holmes’ broad reading of the text of the Constitution—which allows the states the same broad discretion in making takings decisions that they possess when engaging in other forms of economic regulation.”

Running a close second in controversy was Stevens’ 2005 ruling in Gonzales v. Raich, which upheld the federal ban on medical marijuana even as applied to local medical marijuana patients whose use was perfectly legal under state law. The Controlled Substances Act “is a valid exercise of federal power,” Stevens held, “even as applied to the troubling facts of this case.”

Some Supreme Court justices serve for decades without ever really having any impact on the law. But that cannot be said about John Paul Stevens, who undeniably left his mark. His long, impressive record will be studied by judges, lawyers, scholars, and students for many years to come. Regrettably, that record includes a number of opinions that truly shortchanged the Bill of Rights.

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2019-07-17 16:50:43

Former Supreme Court Justice John Paul Stevens, who died yesterday at the age of 99, is routinely described as a “liberal champion,” “the outspoken leader of the court’s liberal wing,” and “the court’s most liberal justice.” Those quotes are all from Linda Greenhouse’s New York Times obituary, but they reflect a journalistic consensus.

In some respects, the “liberal” label is apt, at least as that descriptor is understood in contemporary American politics. But in several important ways, Stevens not only failed to defend but actively undermined principles that are conventionally viewed as liberal. His liberal credentials are even less impressive if you define the term in the classical sense, implying a general skepticism of government power and consistent support for civil liberties.

Stevens opposed the death penalty, supported affirmative action and abortion rights, and resisted attempts to try terrorism suspects before military tribunals or detain them indefinitely without charge or recourse to the federal courts. But in cases involving the Fourth and First amendments, he was far from a “liberal champion.”

Stevens played a significant role in whittling away at the Fourth Amendment’s ban on “unreasonable searches and seizures” to facilitate the war on drugs. He sided with the majority in decisions saying that a sniff by a drug-detecting dog is not a search, that police may search closed containers in cars and observe backyards from the air without a warrant, that a suspected drug smuggler can be detained until she defecates under supervision, and that a driver’s unusually long wait at a stop sign justifies stopping him and peering into his car. He dissented from a 2001 decision that said police need a warrant to conduct infrared surveillance of a home, and in 2005 he wrote a decision that allowed police to use drug-sniffing dogs during routine traffic stops.

Nor is Stevens’ record on freedom of speech especially liberal. He wrote both the 1978 decision that upheld regulation of broadcast indecency and the 1997 decision that overturned regulation of online indecency. He voted to uphold censorship of student newspapers and to overturn censorship of student banners. In 1989 and 1990 he dissented from decisions overturning state and federal bans on flag burning. In 2010 he angrily dissented from a decision that said people organized as corporations, including nonprofit interest groups, have a right to talk about politics, even at election time.

In cases involving property rights, protected by the Fifth and 14th Amendments, Stevens generally sided with the government. Although he once agreed that the government owes property owners compensation for a “taking” when its regulations reduce or destroy the value of their land, he later repudiated that principle. In 2005 he wrote the notorious decision in Kelo v. City of New London that upheld the use of eminent domain to transfer property from one private owner to another in the name of economic development.

While contemporary liberals tend not to get very worked up about violations of property rights, Kelo prompted dismay across the political spectrum, because it so clearly empowered wealthy, politically influential interests to literally bulldoze over the plans and expectations of ordinary people with less pull. Stevens nevertheless continued to defend that decision after leaving the Court, saying he had “a duty to give deference” to “the state courts’ evaluation of the particular development plan that gave rise to the litigation,” no matter how half-baked or thinly justified it might be.

Stevens also wrote the 2008 decision in Gonzales v. Raich, which held that the federal government’s power to regulate interstate commerce extends to the the tiniest trace of marijuana anywhere in the country, even if it is produced at home, never crosses state lines, and is used by a cancer patient for medical purposes authorized by state law. While federalism is usually perceived as a “conservative” issue, Stevens’ position in Raich can hardly be described as liberal in the contemporary or classical sense. Yet Greenhouse thinks his liberal tendencies are illustrated by his determination to resist “what had appeared to be the unstoppable states’-rights tilt of the Rehnquist court’s federalism revolution.”

In Kelo, Stevens approved the use of eminent domain for redevelopment because he thought the Supreme Court should not second-guess the decisions of state and local officials. In Raich, by contrast, he insisted that the federal government had the authority to override state policy. The unifying theme is not a preference for state autonomy or federal control; it is deference to the government, at whatever level, when its actions impinge on individual rights that Stevens did not view as important.

Speaking of which, Stevens dissented from the landmark 2008 decision that overturned the District of Columbia’s handgun ban as a violation of the right to armed self-defense. He thought the majority was mistaken in concluding that the Second Amendment “protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense,” arguing that it only “secure[s] to the people a right to use and possess arms in conjunction with service in a well-regulated militia.”

In a 2018 New York Times op-ed piece, Stevens reiterated his criticism of District of Columbia v. Heller. “Overturning that decision via a constitutional amendment to get rid of the Second Amendment,” he said, “would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.” While many modern-day liberals join Stevens in treating the Second Amendment as a nullity, denying the basic human right of armed self-defense hardly seems consistent with liberal concerns about minorities and people of modest means, who tend to live in places where that right really matters.

When Stevens retired from the Court in 2010, a Washington Post editorial claimed “his voice was consistently raised on behalf of those vulnerable to government excesses.” That evaluation is hard to square with his record.

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