Personal Liberty

New Jersey’s anti-bullying law, which applies to the state’s schools and universities, is so overly broad that a fourth-grader was punished just for noting, in response to a question, that a classmate had suffered from head lice. A civil-liberties group called the Rutherford Institute is now representing that student in a First Amendment challenge to the law, notes the Newark Star-Ledger in an article titled, “Civil liberties organization asks federal court to declare NJ’s anti-bullying law unconstitutional.” Another civil-liberties group, FIRE, has also concluded that the law violates the First Amendment.

The Rutherford Institute explains:

Attorneys for The Rutherford Institute have asked a federal court to declare a New Jersey anti-bullying law unconstitutional in light of its chilling effect on students’ free speech rights. The Institute’s latest brief, which counters a move by the New Jersey Commissioner of Education to have the lawsuit dismissed, argues that the state’s enforcement of the anti-bullying act represents a violation of students’ rights under the First and Fourteenth Amendments to the U.S. Constitution and the New Jersey state constitution. Institute attorneys filed the First Amendment lawsuit in Lim v. Board of Education of the Borough of Tenafly in December 2013 on behalf of a 4th grade boy who was punished under the act for truthfully stating that a fellow student had head lice.

“What school officials conveniently seem to keep forgetting is that students do not shed their constitutional rights at the schoolhouse gate,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. . . Rutherford Institute attorneys argue that while the purpose of the law is admirable, the law’s scope is unconstitutionally broad and the language is too vague to give parents or students adequate notice about what statements will or will not be prohibited.

Highlighting the potential absurd applications of the law, Institute attorneys draw attention to an incident that took place in September 2011, when a 4th grade boy was punished under the act for correctly stating that a fellow student had head lice. A few days after a note was sent home to the parents of a class of 4th grade students, warning them that one of the students had head lice, several students were sitting at a group table completing an assignment together. During the discussion, one student asked a female student why she had dyed her hair. After she failed to respond to the question, one young boy, L.L., correctly replied that she had done so because she was the student who had head lice. The female student complained to the teacher who in turn instructed L.L. to apologize, and the class lesson continued uninterrupted. The teacher then reported the incident to the school’s “Anti-Bullying Specialist,” who filled out a bullying report and informed the Superintendent about the incident. As a result of the finding, the student was forced to undergo a special sensitivity assignment, and the entire class was reminded about the need to be kind to each other, which further embarrassed the fourth grader. L.L.’s parents appealed the bullying determination first with the local school board, and then with the state Board of Education, both of which affirmed the decision.

Arguing that the statute punishes any speech deemed “hurtful,” even if factually true and non-disruptive, attorneys for The Rutherford Institute filed a First Amendment lawsuit in federal court, asking that the statute be struck down, and that students like L.L. not be penalized in accordance with the statute for exercising their constitutional rights.

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Post image for Food Policy Fight: Junk Study on Vegetarian Diet

Log on to Twitter and you might read: “A vegetarian diet is associated with poorer health, a higher need for health care, and poorer quality of life.” Here we have junk science going viral! And its fanning the flames between meat-eating and vegetarian advocates. But it shouldn’t.

You can’t really blame the person pushing out this tweet too much, however, because her source is a study published in a PLOS One research paper. It highlights some of the pitfalls associated with paying too much attention to isolated studies that rely on questionable methodology and overblown claims.

This study is another example of how junk science adversely impacts public policy debates, which is why I recently developed A Consumer’s Guide to Chemical Risk: Deciphering the “Science” Behind Chemical Scares.” As this study on vegetarian diets shows, it’s not just chemical policy that’s negatively impacted by bad science. Personal choice, should rule the day when it comes to dietary choices, but because government is so involved — setting guidelines and telling us what we should and shouldn’t eat — food politics are unavoidable. Accordingly, meat-eaters might use this dumb study to push their agenda, but the facts do not really support them.

This study placed all vegetarians into one category, but there is no such thing as a single vegetarian diet. For example, some vegetarian diets might include mostly processed food and french fries, while others consist of nuts, beans grains, and fresh vegetables. It makes no sense to lump these diets into one category. Yet there are no more details in this study about what the vegetarian participants’ diets included and when the participants began them. Nor does the study include any empirical medical data; just reports from individuals about their perceived health profile.

Apparently, assessing the value of any particular diet was not really the point of this study, despite its conclusions. Rather it addresses the subjects lifestyles’ and perceptions about them, and it found that vegetarians (at least the Austrians in this survey) worry more about their health and report having more health problems than do meat eaters. It does not demonstrate that a vegetarian diet can’t be as healthy as or healthier than a diet that includes meat.

Yet the authors somehow conclude:

Moreover, our results showed that a vegetarian diet is associated with poorer health (higher incidences of cancer, allergies, and mental health disorders), a higher need for health care, and poorer quality of life. Therefore, public health programs are needed in order to reduce the health risk due to nutritional factors.

This conclusion offers lots of opportunity for anti-vegetarian soundbites, but the study really doesn’t show what this conclusion says. First the “association” does not prove cause-and-effect; and second it’s not a vegetarian diet that causes these problems. It’s the alleged lifestyles of the vegetarians, such as not getting vaccinated as often and not pursuing preventative health check-ups.

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Former Competitive Enterprise Institute Research Associate Michael Mayfield provided invaluable assistance with this post.

Matt Drudge’s widely discussed tweet that he has already paid Obamacare’s “liberty tax” highlights the uncertainties the self-employed face both from the health care law and the tax code in general. As pointed out by an editorial in Investor’s Business Daily, “self-employed entrepreneurs ranging from Drudge to small-shop proprietors and independent contractors have long been aware of the requirement to estimate their tax liability and send a quarter of it in every three months, and that this amount includes ‘other taxes’ such as the ObamaCare opt-out penalty.”

The threat of the IRS penalty from Obamacare’s individual mandate, perhaps more than the president yukking it up with comedians like Zach Galifianakis, may be driving the apparent pickup in enrollment in advance of the law’s March 31 deadline. “Worries over fines aid health insurance sign-ups,” reads the headline of a March 23 Wall Street Journal article. Even if the penalty this year is relatively small for many Americans, fear of the IRS can be a great motivator.

The good news — for Drudge and other Americans who don’t want to buy an Obamacare-compliant plan due to personal objections or just plain cost — is that in many cases there is a practical escape hatch from the IRS penalty. And this option may end up offering better and more affordable care than Obamacare. The only catch is you’ve got to have a little faith.

Buried in Section 1501 on page 148 of the so-called Patient Protection and Affordable Care Act is an exemption from the individual mandate for a “health care sharing ministry,” a group whose members “share a common set of ethical or religious beliefs and share medical expenses among members in accordance with those beliefs.” For any member of such group, the law says, “No penalty shall be imposed.”

It’s somewhat of a mystery how those pushing the law allowed such a potentially large exemption to the individual mandate to be inserted in the first place. This is definitely a case in which the law’s supporters, four years after the law has passed, don’t seem to know what’s in it. But fortunately, many Americans are finding and utilizing this escape hatch.

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Legislators impose all sorts of misguided or costly mandates on colleges and schools that harm young people directly or indirectly. California activists are now seeking to redefine most campus sex as sexual assault, by requiring verbal permission before any sex or sexual activity (never mind that most happily married couples have engaged in consensual sex without any verbal discussion). The first step towards this goal is Senate Bill 967, a pending California bill that would require “affirmative consent” for sexual activity on public and private college campuses (although it does not expressly rule out non-verbal consent), and would require colleges to enforce such rules. I discuss the bill, and related policies at the University of California, at this link.

The bill, SB 967, also contains various provisions that impose unfunded mandates on colleges. It authorizes funding for these mandates for public colleges, but nothing for private colleges burdened by the bill’s requirements. I also discuss in the Sacramento Bee how the bill would undermine due process and privacy on campus.

Occasionally, you hear people oppose school vouchers because they think it will lead to private schools losing their autonomy due to the strings attached. But this objection assumes that the government won’t regulate private schools if they don’t accept government funds. But state governments often will anyway.

In fact, as any educational lobbyist or trade association could tell you, state governments will regulate you whether or not you get a penny in state funds, and even if no voucher program exists. And state legislatures are now passing all sorts of politically correct legislation that encroaches on private colleges’ academic freedom and curricular autonomy, like provisions requiring them to create programs to “promote cultural diversity.”

Post image for CEI Files Comments against IRS Proposed Rules That Would Illegally Restrict 501(C)(4) Speech

Today, CEI filed comments against the IRS’s proposed rules restricting speech by 501(c)(4) groups (which the IRS has suggested could be expanded in the future to also restrict speech by 501(c)(3) groups like think-tanks).  Our comments focus on the Treasury Department’s improper attempt to redefine non-partisan criticism of non-elected government officials, including communications with lawmakers about executive-branch and judicial nominations, as “candidate-related political activity,” in order to restrict such activity by 501(c)(4) groups. We also discuss how the proposed rule would also unconstitutionally restrict non-profits’ advice to the executive branch about nominations. CEI also agrees with the Heritage Foundation that the Treasury Department lacks statutory authority to impose the proposed rules.

As I earlier noted in The Wall Street Journal,

Those rules restrict even truthful, nonpartisan criticism of IRS and bureaucratic wrongdoing by classifying it as “candidate-related political activity.” For example, if an IRS official subjects citizens to incredibly burdensome demands for irrelevant information just to harass them for their political or religious beliefs, no 501(c)(4) group could later criticize that official’s nomination to be IRS commissioner, without engaging in restricted activity. That’s because the IRS’s proposed regulation defines even unelected government officials, like agency heads and judges, as “candidates” if they have been nominated for a position requiring Senate confirmation. The IRS’s proposed rules are an attack on the First Amendment that will make it easier for the government to get away with harassing political dissenters and whistleblowers in the future.

The proposed rules are even more dangerous than they appear, since the IRS notice containing the proposed rules expressly raised the possibility that these speech restrictions will later be expanded, in two disturbing ways, as we described earlier. First, the IRS suggests that this broad definition of the restricted category of speech (“candidate-related political activity”) in its proposed rule may later be applied to 501(c)(3) groups (which are not permitted to engage in candidate-related political activity at all, unlike 501(c)(4)’s, which can currently engage in it as a minority of their overall activity). That would effectively gag 501(c)(3) groups from discussing a wide range of judicial and executive nominations or speaking out about wrongdoing by nominees for such posts. Second, the IRS suggests that it may curb 501(c)(4)s’ ability to engage in such expressive “activity” even a minority of the time, by not just broadly defining such activity as inimical to social welfare, but also requiring them to “exclusively” promote this narrow IRS definition of “social welfare.”

We earlier discussed how the IRS violated the First Amendment by targeting Tea Party and other groups for costly and burdensome investigations, and demanding lots of burdensome and irrelevant information from those groups that had nothing to do with whether they actually were eligible for 501(c)(4) status. As we explained, such investigative harassment would have violated federal appeals court rulings like White v. Lee, 227 F.3d 1214 (9th Cir. 2000), even if it had not been aimed at conservative groups, but rather at both conservative and liberal groups alike. (Note that donations to 501(c)(4) groups are not tax-deductible, unlike donations to 501(c)(3) groups).

CEI’s comments can be found here.

Yesterday, Arizona Governor Jan Brewer vetoed a bill that would have made clear that the state’s Religious Freedom Restoration Act (RFRA) applied not just as a defense to a lawsuit brought by a government entity, but also as a defense to lawsuits brought by a private party under a state statute, or using a cause of action created by state law. Under RFRA, no government action (including a damage award in a lawsuit) can “substantially burden” religious freedom unless it is “the least restrictive means” to further a “compelling interest.” The bill hardly seems like a radical change, since damage awards in private lawsuits already constitute “state action” for purposes of the First Amendment, under the Supreme Court’s decisions in Snyder v. Phelps and New York Times v. Sullivan. The bill just applies the same principle to RFRA, and, indeed, the bill’s enactment might merely have given the state’s RFRA the same meaning that other jurisdictions’ RFRA’s already have by judicial construction. The bill did not even mention sexual orientation, did not single out gays, and probably would have had its greatest effect in other areas.

The media, including the Washington Post and the New York Times, have fundamentally distorted what that bill, SB 1062, vetoed by Gov. Brewer, would have done, by claiming that it would have “allowed” a broad range of discrimination. It was written narrowly enough (and did not even mention gays) that it conceivably might not have legalized any additional discrimination against gays at all. It might have had more effect as to refusals to serve other groups disapproved of by religious fundamentalists, like cohabiting unmarried couples, although even that is not guaranteed. (Disclosure: I support both gay marriage and religious liberty, and CEI did not take any position on the bill.)

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“The Wandering Dago food truck wants to park and sell food at various events on New York State property. The state says no, because the name is offensive. Does that violate the First Amendment?” The answer is probably yes, says UCLA law professor Eugene Volokh at this link. He recently discussed the free-speech issue in a pending court case called Wandering Dago Inc. v. N.Y. State Office of General Services. The mere fact that a business’s name is politically incorrect, or offends some patrons, is not reason enough to ban it, as an appeals court ruled in holding the name “Sambo’s” protected in Sambo’s Restaurants Inc. v. City of Ann Arbor (1981). Of course, if it is offensive, the business may lose customers as a result, especially if its name does not appeal to patrons’ sense of humor.

Commercial speech is not the only speech that government officials seek to restrict when it offends certain listeners. Such restrictions are common in universities, even though the Supreme Court has indicated that free speech is nearly as broad on campus as in society at large (in its decisions in Papish v. University of Missouri Curators, Healy v. James, and Rosenberger v. University of Virginia).

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Post image for Reining in the Executive Branch Bureaucracy, Part 7: Recognize and Reduce Indirect Costs of Regulation

Since the Federalist Papers, America has debated “Energy in the Executive.” But President Obama’s 2014 agenda framed by his State of the Union address heralds a class warfare agenda, one fusing an “income inequality” theme with federal industrial policy and other activism.

When I can act on my own without Congress, I’m going to do so,” Obama promises. This spend-and-transfer fixation makes Americans poorer and dependent except for the lucky few running things.

Others have argued for federal budget rationality as essential to any anti-poverty agenda. This series proposes a greater prosperity enhancing opportunity, streamlining the nearly $2 trillion regulatory state and ending the uncertainty, wealth destruction and job loss it creates.

Accountability in government and basic fairness require acknowledging indirect effects of regulation and minimizing negative impacts.

In the series “Cataloging Washington’s Hidden Costs, it was noted that indirect costs may often be omitted from compliance-focused regulatory direct cost estimates, such as the engineering costs of controlling an emission.

But if indirect costs are regarded as too difficult to compute, then government cannot credibly argue that compliance is somehow not overly burdensome.

If Congress continues to allow regulators to overlook entire categories of indirect costs (such as product bans, disapprovals of pipelines, employment impacts or antitrust regulation’s re-orienting of entire industries), then regulations can tend toward such hard-to-quantify types, imposing grave burdens and dampening productivity. Under such scenarios, many regulations could be expected to feature bans or disapprovals so that regulators would avoid appearing to impose high direct regulatory costs despite hardship inflicted.

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Post image for Should States Legalize Sports Gambling? Yes!

With Super Bowl XLVIII in the history books, all that remains now is for the losers to lick their wounds and for the victors to collect their spoils. The Seattle Seahawks will return home to their adoring (and loud) fans while the winners of friendly bets and office pools will collect their winnings. Of course, in most states wagering on sports is illegal. Should it be, or is it about time that states legalized the widespread activity of sports gambling?

The short answer: It should never have been banned in the first place. Legalization would protect gamblers from the dangers of the black market, increase revenues for cash-strapped state governments, and restore adult Americans’ right to decide how to spend their own money. The question of whether some gambling should be legal has long been settled. All but one state — Hawaii — has some form of legalized gambling. All but six states have lotteries, in which almost 60 percent of Americans bought tickets in 2013. Gambling is, quite simply, in our nature. People have engaged in it since the beginning of recorded history and about 86 percent of Americans reported gambling at least once in their life, according to a Gambling Impact and Behavior Study done in 1999.

Bans don’t work: Despite the de facto ban on Internet gambling, an estimated 70 million Americans still wagered online in 2010. And, despite the fact that sports wagering is only legal in four states, an estimated 50 percent of American adults all across the nation put money down on the outcome of this past weekend’s Super Bowl. Bans on sports gambling make criminals of ordinary people, put them in potentially dangerous situations in dealing with bookies, and make states miss out on potential revenue.

Legalized gambling = increased tax revenue: Nevada generated upwards of $20 million in tax revenue from sports wagering in 2012. Only three other states — Oregon, Delaware, and Montana — reap the benefits of legal sports wagering. For an idea of the potential revenue states could gain from legalized sports wagering, consider this: more than $2.5 billion is illegally wagered during the three-week period of “March Madness” last year, according to the FBI.

Gambling bans don’t protect the sport: Some argue sports gambling hurts the game. They appear to believe players will throw games if they bet on opponents. But as we have seen, bans do not stop sports betting, they merely drive it underground where it attracts a criminal element and cannot be policed effectively. To the extent that legalization makes gambling a transparent activity organized by businessmen, rather than a black market run by criminals, legalization should make it easier for teams, leagues, and courts to police misconduct by players and coaches.

As we have seen in the past, Americans are going to continue wagering on sports whether or not it is legal. The real question is: Do we want to have this activity go on in the shadows of the black market or have it occur in a legal market where it can be monitored and participants can be protected?

tsa-nun-screeningPolitico Magazine has a disturbing article by former transportation security officer Jason Edward Harrington. At least it would be disturbing if it wasn’t largely just a confirmation of what many of us had long suspected. (Titled “Dear America, I Saw You Naked: And yes, we were laughing. Confessions of an ex-TSA agent.”) Harrington details the dim view the Transportation Security Administration holds of traveling public, in addition to their willful use of ineffective screening techniques and technologies, which may or may not be deployed by spiteful TSOs to humiliate or delay a passenger who rubs them the wrong way. A taste:

We knew the full-body scanners didn’t work before they were even installed. Not long after the Underwear Bomber incident, all TSA officers at O’Hare were informed that training for the Rapiscan Systems full-body scanners would soon begin. The machines cost about $150,000 a pop.

Our instructor was a balding middle-aged man who shrugged his shoulders after everything he said, as though in apology. At the conclusion of our crash course, one of the officers in our class asked him to tell us, off the record, what he really thought about the machines.

“They’re shit,” he said, shrugging. He said we wouldn’t be able to distinguish plastic explosives from body fat and that guns were practically invisible if they were turned sideways in a pocket.

We quickly found out the trainer was not kidding: Officers discovered that the machines were good at detecting just about everything besides cleverly hidden explosives and guns. The only thing more absurd than how poorly the full-body scanners performed was the incredible amount of time the machines wasted for everyone.

Read the whole thing.

CEI has been fighting TSA’s unjustifiable use of “advanced imaging technology” (AIT, the official term for the strip-search machines in airport screening lines), filing a coalition amicus brief in support of the Electronic Privacy Information Center’s lawsuit that led to a court-ordered rulemaking on the use of AIT scanners.

We later submitted formal comments to the TSA on the proposed rule in June that were joined by former American Airlines CEO Bob Crandall and are still waiting for the agency to produce a final rule. In our letter, we argue that the TSA is still not complying with the Administrative Procedure Act, nor the court order requiring it to comply with the APA, and that it fails to properly analyze issues of risk or conduct a legitimate cost-benefit study.

Based on what Harrington claims in his essay, our worst suspicions have been confirmed: the TSA is an ineffectual, lawless agency. It should be abolished as quickly as possible, with passenger screening responsibility being reverted to the airlines and airports, as it had been for three decades until the entire country briefly went insane following the September 11 terrorist attacks. Both airlines and airports have much stronger incentives to both screen effectively and minimize passenger inconvenience and discomfort than bumbling government bureaucrats.

Read the comment letter here for details. In addition, see this op-ed co-authored with Crandall for background on the issues at stake.