January 2012

Congressional Conference Committee Attempts to Turn Hate Crimes Law Into a Speech Code

by Hans Bader on October 14, 2009

in Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

Hate crimes are irrational, and what sets them off is often unpredictable. The hate-criminal whose sentence was upheld in Wisconsin v. Mitchell by a unanimous Supreme Court attacked a young white boy because of the outrage he felt after watching the movie Mississippi Burning, which depicted racism against black people in the Deep South. To him, two wrongs made a right.

If the victim had attempted to sue the makers of Mississippi Burning for inciting the hate-crime, the lawsuit would have been dismissed under the Supreme Court’s rulings in Brandenburg v. Ohio (1969) and Hess v. Indiana (1973), which say that the First Amendment protects speakers from being held liable for inciting a crime unless they intended to incite the crime, and to cause it imminently. This is the so-called Brandenburg test, and appeals courts have consistently applied it to all but one context (workplace discriminatory harassment claims under the federal civil rights laws).

A conference committee reconciling House and Senate versions of the federal hate-crimes bill recently decided to reject the Brandenburg test, however, hoping to snare people who do not intend to incite a hate crime in hate-crimes prosecutions. Both the House and Senate had earlier passed versions of the federal hate crimes bill that included language intended to limit, rather than expand, its reach over speech. The conference committee turned this language inside out, converting the free-speech language into anti-speech language. It inserted new language that made it clear that the absence of any intent to incite a crime should not necessarily protect the speaker from punishment if the government can show a “compelling interest” in prohibiting the speech that cannot be achieved through less “restrictive” means. A speaker can now be convicted even if his “exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another.” (This changed version then passed the House as an amendment to a defense appropriations bill, and it is now expected to pass the Senate in a few days.)

The purpose of the conference committee’s change appears to be to allow the government to prosecute people for otherwise protected speech, under the theory that it is “incidentally swept up” within a ban on discriminatory conduct — a rule uniquely applied to workplace discrimination law. In sexual harassment cases, employers get held liable for allowing employees to read things that incite them to harass fellow employees, even though such liability would not be possible under Brandenburg, which requires a closer link between speech and the incited action. (See Robinson v. Jacksonville Shipyards (1991) (trial judge ruled that employer was partly liable for letting employees read porn, which made them view female employees as sex objects, and thus resulted in sexual harassment).) The argument is that such speech is not banned for its own sake, but rather is “incidentally swept up” in a larger ban on discrimination, an “incidentalness” that somehow is supposed to make the ban on speech less objectionable (legal commentators have long ridiculed this reasoning, but the courts sometimes accept it in the workplace). (See R.A.V. v. St. Paul (1992) (Supreme Court said in dictum that race-based fighting words could be “incidentally swept up” within a ban on racial and sexual harassment in the workplace).)

Courts have by and large refused to restrict speech on this basis in society as a whole, outside the workplace. In White v. Lee, 227 F.3d 1214 (9th Cir. 2000), a federal appeals court held that the speech-protective Brandenburg test — not the speech-hostile standards of workplace discrimination law — applied to investigations under the Fair Housing Act, meaning that public speech against housing projects for minority groups like recovering drug users and the mentally ill could not be “incidentally swept up” within a statutory ban on discriminatory acts. Such speech remained protected, the appeals court unanimously ruled, even if it led to municipal action against such housing projects, as long as it did not intentionally cause imminent attacks on minority group members. The court rejected the argument that the speech lost its First Amendment protection because it was “discriminatory” in its purpose and effect. By contrast, in Presbytery v. Florio, federal district judge William Bassler suggested that anti-gay handbills could be restricted under New Jersey’s gay-rights law based on its “secondary effect” of causing discrimination against gay people, regardless of the Supreme Court’s Brandenburg ruling.

The conference committee’s changes to the hate-crimes bill appear to be intended to nudge courts interpreting the hate crimes law towards a more speech-hostile “secondary effects” interpretation, akin to Judge Bassler’s interpretation of the gay-rights provisions in the New Jersey Law Against Discrimination.

Courts may well decline this invitation to regulate speech so broadly, however. Under the canon of constitutional doubts, courts are supposed to construe statutes narrowly to avoid potential constitutional problems. Criminal statutes like hate-crimes laws have to be more precise than a purely civil enactment like a workplace discriminatory harassment law. Interpreting the hate-crimes statute as not requiring that speech “imminently” and intentionally incite a hate crime for a conviction would render the hate-crimes law unconstitutionally vague, meaning that courts would generally interpret the law as requiring intentional, imminent incitement, under the canon of constitutional doubts. On the other hand, a court might refuse to do that based on the argument that it cannot rewrite the explicit language of the hate-crimes law inserted by the Conference Committee, which expressly assumes that speech can be banned even if it does not intentionally incite a hate crime. That would present a serious constitutional problem.

The language of the hate-crimes bill itself requires a violent crime to have occurred for a prosecution. However, another federal statute, the federal aiding and abetting statute, 18 U.S.C. 2, holds people liable for a federal crime even if they did not physically perform it, as long as they “induce,” counsel, aid, or abet it: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” The conference committee appears to be trying to get courts to interpret those words, such as “induces,” broadly at the expense of free speech, by preventing courts from construing those words narrowly to comply with the Supreme Court’s Brandenburg test.

In the long run, as the political climate shifts, and courts begin watering down the Brandenburg test even outside the workplace, such language could open the door to prosecutions over speech that offends a prosecutor, if it allegedly had some influence on a hate criminal. In Canada, hate-crimes laws were on the books for decades before they began to be used in earnest against publishers for peacefully dissenting against politically correct orthodoxies or offending radical Islamists.

Moreover, even if the attempt to convert the hate-crimes law into a speech code or hate-speech law fails, it still says volumes about the mind-set of the bill’s backers, who want to take a law seemingly aimed at violent hate crimes, and use it as a backdoor way of censoring speech, contrary to the wishes of many of their colleagues. Members of the public should ask the members of the conference committee, like Senator James Webb (D-VA), why they substituted this harmful language for the harmless language in the previous House and Senate versions, which were designed to protect against censorship, rather than cause it.

The hate crimes bill raises other problems as well. While the original version of the hate-crimes bill did not raise free-speech problems (contrary to the claims of the Religious Right, which also focused obsessively on the inclusion of sexual orientation in the bill), it did, sadly, seek to take advantage of a loophole in constitutional protections against double jeopardy (as I noted here and here), and it also did raise serious constitutional federalism issues. Those problems are equally present in the version of the hate-crimes bill that is now slated to be enacted by Congress.

More on Public Sector Unions

by Ivan Osorio on October 14, 2009

in Economy, Labor, Politics as Usual, Regulation

Slate blogger Mickey Kaus explains how public sector unions are driving state and local governments to the brink of bankruptcy (via Nick Gillespie at Reason Hit & Run, via Glenn Reynolds at Instapundit):

The justification for public sector unionism is way weaker than that for private sector unionism. “[Government] workers are not extracting a share of the profits but rather a share of taxes,” as former N.Y. Liberal Party leader Alex Rose puts it. And the right to strike, in the hands of key public unions, approaches a blackmail power. But the political strength of the unions is such that even most Republicans, at the state and local level, are scared to question them. They gelded Arnold Schwarzenegger. You want to be next?

Kaus cites a Weekly Standard article by Fred Siegel and Dan DiSalvo, in which they explain the public choice dynamic that makes government employee unions especially powerful:

[W]ith the power of the public sector unions to drive election outcomes, they now sit on both sides of the bargaining table. Unlike private sector unions, the sheer number of workers represented is not the linchpin of their influence. Private sector unions have a natural adversary in the owners of the companies with whom they negotiate. But public sector unions have no such natural counterweight. They are a classic case of “client politics,” where an interest group’s concentrated efforts to secure rewards impose diffused costs on the mass of unorganized taxpayers.

And how bad can it get?

The combined power of the teachers and health care workers has made the New York state legislature a wholly owned subsidiary of the public sector unions. The law mandates that all new legislation be evaluated for its fiscal impact. In recent years those calculations were performed by an actuary named Jonathan Schwartz. In 2008, when Schwartz found that a piece of bipartisan legislation allowing city workers to retire early with full pension benefits would impose no new costs, the New York Times blew the whistle. Schwartz, who had been fired from a city job, worked not only for the state assembly but also, it turned out, for District Council 37 of the SEIU. When asked which other unions he had worked for, he replied, “How many unions are there?” His client list included the teachers, firefighters, detectives, correction officers, and bridge and tunnel officers. Not surprisingly New York State has the highest per-employee pension costs in the country.

For more on the strain that public sector unions place on government budgets — and on democratic government itself — see “Vallejo Con Dios: Why Public Sector Unionism Is a Bad Deal for Taxpayers and Representative Government.”

Regulation of the Day 60: Hybrid Car Noise

by Ryan Young on October 14, 2009 · 1 comment

in Deregulate to Stimulate, Economy, Environment, Mobility, Nanny State, Personal Liberty, Regulation, Regulation of the Day

One advantage of hybrid cars is that they are quiet. Too quiet, some would say. Blind pedestrians may not hear a hybrid coming around the corner until it’s too late.

Car companies are responding to the concern by voluntarily outfitting their hybrid models with fake digital vrooms so pedestrians can hear them as well as conventional cars. There’s a reason car companies were so quick to respond to their customer’s wishes: it’s good for business. One more safety feature is one more selling point to entice potential customers.

Regulators, behind the curve as usual, have introduced the Pedestrian Safety Enhancement Act of 2009. If passed, it would make fake vrooms a federal matter. This policy of making mandatory what companies are doing anyway probably originated with the Department of Redundancy Department.

Silencing Criticism through Libel Law

by Greg Conko on October 14, 2009

in Culture, Health and Illness, Healthcare, International, Legal, Nanny State, Personal Liberty, Precaution & Risk, Regulation, Zeitgeist

A Scottish colleague brought this article by Richard Dawkins in the UK’s Guardian to my attention, and the title says it all: “Libel laws silence scientists.”  I’m embarrassed to say that I hadn’t heard of this before now, but the physicist turned science journalist Simon Singh (author of such books as Fermat’s Last Theorem and The Code Book) has been sued in a UK court and, this past summer, found liable for libel for an April 2008 commentary piece in the Guardian (since removed from the Guardian’s website but available in edited form here and elsewhere) in which he explained that there is no evidence that chiropractic spinal manipulation can safely and effectively treat back pains, let alone treat non-back problems such as asthma, colic, and frequent ear infections “supposedly caused by blockages in the flow of innate energy along the spine and through the nervous system,” as some chiropractic advocates insist.  Singh called these claims “utter nonsense,” wrote that the British Chiropractic Association “happily promotes bogus treatments,” and noted that there have been several hundred documented cases in which chiropractic spinal manipulation has caused serious vertebral dislocation or fractures.

The British Chiropractic Association was none too happy about these criticisms of themselves and their craft.  But, instead of accepting the Guardian‘s offer to publish a 500-word response and a note in the “corrections” section of the newspaper, the BCA took advantage of Britain’s insane libel laws and sued Singh.  Singh, who of course has copious amounts of published scientific research to back up his claims, decided to fight the suit in court.  But, due to Britain’s insane libel laws, he lost.  Reasons include  the fact that, in the UK, any person or organization with almost any amount of national reputation may bring a libel action for even the slightest deprecation without having to show any actual damages.  Then, once in court, the normal burden of proof is switched, such that the defendant must prove his statements to be completely true, rather than the plaintiff proving them to be false. And UK judges tend to be very favorably inclined toward plaintiffs.

Although Singh’s article mentioned the BCA only once, the judge interpreted that key passage (“happily promotes bogus treatments”) as a direct allegation of purposeful dishonesty:

12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.

13. It is alleged that the claimant promotes the bogus treatments “happily”. What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.

Singh claims he merely intended to suggest that the BCA and other chiropractic supporters were “deluded and reckless,” not dishonest, and he notes that several other passages in the article support that interpretation.  But, even if that were not the case, since there is plenty of scientific evidence that chiropractic manipulation is bogus, you’d think that would be sufficient defense.  But, it is often said that, under UK libel law, the truth is no defense. Did I mention that the UK has insane lible laws?

This case would be bad enough if it were unique.  Unfortunately, this kind of thing happens all too often.  In a world of global print and Internet publishing, the UK has become a venue for so-called libel tourism, in which slighted plaintiffs from all over the world bring suit in British courts against defendants located outside the UK merely because their comments have been published or re-posted in magazines, books, or websites that happen to appear in Britain.  There is no doubt that British libel law exerts a chilling effect on free speech generally, and on criticism of quack science and bad governance more specifically.  Fortunately, the indispensible UK non-profit Sense About Science has begun a campaign to Keep Libel Laws Out of Science.  I encourage readers interested in defending the right of honest criticism to click the link and learn more.

Fighting Eminent Domain Abuse

by Marc Scribner on October 13, 2009 · 1 comment

in Deregulate to Stimulate, Economy, Legal, Personal Liberty, Stimulus to Nowhere

Popular outrage over eminent domain abuse may have waned a bit since the Supreme Court’s poorly-reasoned Kelo ruling in 2005, but economic development takings remain incredibly unpopular throughout the country. Public opinion polls indicate that more than 80 percent of Americans oppose eminent domain for economic development, which is surprising when one considers the relative inaction on the part of state legislatures to meaningfully protect their citizens’ property rights.

However, there are reasons to be optimistic. Brooklynites fighting the proposed Atlantic Yards development filed a lawsuit today challenging the legality of the Metro Transit Authority’s land handout to the private developer. In Texas, citizens will soon vote on widely-supported Proposition 11, which would amend the Texas Constitution to prevent area blight designations and condemnations, and prohibit takings for purposes of economic development. If it passes, which seems likely, Texas property owners will have some of the strongest protections against eminent domain abuse in the nation.

But there is a lot of work to do. Many in this country are still largely defenseless against development takings, so the question arises: What can property owners do to take back their rights from revenue-hungry municipalities and rent-seeking developers? The law, as it stands, is against them in most respects, but there are legislative avenues worth pursuing.

A few of the most politically-feasible are:

  1. Enacting state legislation mandating the creation and maintenance of a public eminent domain database accessible via the Internet. Currently, data on development takings are difficult to obtain due to the fact that eminent domain condemnations are ordered at the local level. Right now, an empirical analysis of takings within a state would require contacting every county clerk and requesting specific filings. A central state database would allow social scientists, journalists, and the public to examine the economic effects of eminent domain use and abuse.
  2. Enacting state legislation defining “public use” as “use by a government body,” which would deny municipalities the opportunity to claim that their takings deals with private developers serve the “public purpose” because they will ostensibly increase tax revenue at some future date.
  3. Enacting state legislation mandating that blight be determined on a parcel-by-parcel basis.
  4. Enacting state legislation mandating that Tax Increment Financing (TIF) be limited to the length of time required to complete public infrastructure improvements within a given TIF district. This would reduce the ability of rent-seeking private developers to collude with local officials to subsidize development projects.

These proposals could also be enacted through ballot initiatives, if the state allows them. As eminent domain is primarily a local issue, Congress is a less likely venue for legislative relief. However, it is possible for Congress to tie federal development and highway funding to takings behavior (as they presently do for myriad other “carrot-and-stick” purposes). For example, a bill was introduced in the previous legislative session that would cut off federal development grant money for 10 years to any state that permitted an eminent domain condemnation for the benefit of a private developer.

With the five-year anniversary of Kelo coming up next summer, a renewed interest in the harm caused by eminent domain abuse will hopefully materialize.

Senate Finance Passes Health Reform Bill

by Greg Conko on October 13, 2009 · 4 comments

in Culture, Health and Illness, Healthcare, Regulation, Zeitgeist

Earlier today, Senator Olympia Snowe (R-Me.) announced that she would vote in favor of the health care reform bill authored by Senate Finance Committee Chairman Max Baucus (D-Mont.).  And, just about 30 minutes ago, the Finance Committee reported the bill out to the full Senate by a 14 to 9 vote, with all the Democrats and Snowe voting in favor.

As I wrote two weeks ago, however, Snowe may be getting more (or less) than she bargained for.  Once a bill is reported out of committee, it gets to be amended after debate by the entire Senate, and again when the final Senate compromise goes to conference and has to be reconciled with the House bill.  You may think you’re playing nice with your Senate Finance Committee colleagues and getting as good a deal as can be expected from that nice old Max Baucus.  But, trust me, Henry Waxman is ruthless.

Indeed, the House bill contains a government-run, or ”public,” health insurance option and a number of other key features that were steadfastly opposed by moderate Democrats and liberal Republicans on the Senate Finance Committee.  As the National Journal‘s Marilyn Werber Serafini wrote earlier today:

House Democrats have ruled out an excise tax on high-end insurance plans as a way to pay for health reform, although that is a primary revenue raiser in Senate Finance Committee Chairman Max Baucus’s plan. House Democrats are considering limiting their proposed health care surtax to individuals earning above $500,000 a year, and that leaves about a $100 billion funding shortfall for reform …

In the end, all of Sen. Snowe’s efforts to produce a compromise that the CBO now says will reduce the federal budget deficit during the ten-year budget window (which was laughable in the first place) are at risk of being for naught, since liberal Democrats remain committed to the public option and have even taken to demonizing Baucus for his willingness to compromise.

Senators Lindsey Graham and John Kerry: Yes We Can (Raise Your Energy Prices and Send Jobs Abroad)

by Myron Ebell on October 13, 2009 · 3 comments

in Agenda for Congress, Energy, Environment, Global Warming, International, Trade

Senators John Kerry (D-Mass.) and Lindsey Graham (R-SC) published a curious op-ed in Sunday’s New York Times titled, “Yes We Can (Pass Climate Legislation).”  The bill that they claim to support and that can pass the Senate is not the 821-page draft bill that Senators Kerry and Barbara Boxer (D-Calif.) released two weeks ago.  It is a fantasy designed to get the support of Senator Graham and other fuzzy-minded Senators with visions of lots of new nuclear plants, billions for technology to capture and store carbon dioxide emissions from coal-fired power plants, less dependence on imported oil, and tariffs to protect American manufacturing jobs in energy-intensive industries.  We can have it all with a few waves of the federal government’s magic wand.

But even a glance at their article shows how little substance there is to any of these promises.   No new nuclear power plants will be built unless there is somewhere to store the waste.  Here’s what Kerry and Graham say about that: “We must also do more to encourage serious investment in research and development to find solutions to our nuclear waste problem.”  In other words, not finish the Yucca Mountain site in Nevada that the federal government has already spent billions on, but which Majority Leader Harry Reid (D-Nev.) and President Obama oppose.  Carbon capture and storage technology is more than a decade away from being commercially available.  Even if it works and is affordable, environmental pressure groups will sue to block permits for the pipelines and underground storage sites necessary to transport and store the pressurized carbon dioxide.  Here’s what Kerry and Graham say: “…we need to provide new financial incentives for companies to develop carbon capture and sequestration technology. “  Not a word about limiting lawsuits that would block projects.

Kerry and Graham support a border tax to protect American jobs from products produced in countries that don’t commit to reducing their emissions.  That is an admission that energy prices are going to go up and so are the prices of goods and services that are produced with or use energy.  Consumers will be poorer as a result and hence will be able to afford fewer goods and services.  Bye-bye manufacturing jobs.  They also claim that their as-yet-to-be-written bill will reduce our imports of foreign oil.  That’s plausible, but not exactly correct.  As our economy declines, we will need less oil.  But it will reduce U. S. and Canadian production first because the production costs are much higher here than in Saudi Arabia.


The Wages of Government Unions

by Ivan Osorio on October 13, 2009

in Economy, Employment, Labor, Regulation

The Economist‘s current Lexington column highlights the growing public resentment at the widening disparity between compensation and job security in the private and public sectros — which are largely the result of increasing unionization of government employees. (Subscription required for the Economist link.)

Those who are still employed have seen their wages stagnate and their pensions shrivel in the stockmarket crash. Their health insurance is insecure, but they don’t trust Congress not to make it worse.

Meanwhile, they can see that one group of Americans has been practically unaffected by the recession: government employees. Their hours have not been cut, their benefits are gold-plated and they are almost impossible to sack. In good times, few Americans notice these things, but in bad times, the disparity grates. Cops and firefighters can retire in their 40s and draw defined-benefit pensions for life. With overtime, one tenth of the police in Massachusetts made more than the governor’s annual salary in 2006, according to the Boston Globe. Including benefits, the average employee of New York City makes more than $100,000, according to Forbes, while some Californian prison guards “sock away $300,000 a year”.

And what do taxpayers get for their generosity? The bad bargains get all the publicity. Union contracts force the postal service to pay thousands of unneeded workers to do nothing. In New York, public-school teachers who can’t be trusted to teach but can’t be sacked either are paid to sit and do crosswords.

For more on the effects of public sector unionization, see the study, “Vallejo Con Dios: Why Public Sector Unionism Is a Bad Deal for Taxpayers and Representative Government,” co-authored by University of South Florida economics professor Don Bellante, Public Service Research Foundation president David Denholm, and myself, and published by the Cato Institute.

Three Cheers for the Nobel Economic Prizes!

by Fred Smith on October 13, 2009

in Economy, Environment, Natural Resources

After the weird “future” award to President Obama of the Nobel Peace Prize, another Nobel committee has made a brilliant choice – awarding the Economics prize to Elinor Ostrom and Oliver Williamson. Their work follows the lead of Ronald Coase (himself a Nobel prize winner years ago), which showed that the institutions of liberty are far richer than the atomistic market concepts of buying and selling.

Coase asked, the question, “Why are there firms?” – which Williamson has explored further. Like Coase, he sought to understand the reasons why firms take on the structures that they do. His work is a welcome warning of the dangers that overzealous antitrust regulators can pose to economic growth.

Eilinor Ostrom is a wonderful choice – coming far outside the normal priesthood of economics. Her work (some together with her husband Vincent) has focused on the ways in which traditional societies manage commons. Her work makes clear that property rights evolve in response to scarcity – often illustrated by real-world cases ranging from the allocation of lobster rights in Maine to water rights in California.

CEI’s work on environmental and competition policy relates closely to the works of both these award recipients. On this one, the Nobel Committee got it right!

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