Nanny State

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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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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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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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.

Post image for Reining in the Executive Branch Bureaucracy, Part 2: Regulatory Benefits? Maybe Not

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.

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 a true anti-poverty agenda. This series proposes a greater prosperity enhancing opportunity, streamlining the nearly $2 trillion hyper-regulatory state and ending the uncertainty, wealth destruction and job loss it creates.

The basis of regulation is the belief, in my view discredited, that government actors are non-self-interested and that political markets are fairer than private markets. Regulations, as currently construed, often don’t work. One instance is expressed by John Tamny in Forbes:

The banking crackup from 2008 is the latest evidence that regulations are much more than worthless. We implicitly ask the charitably average people who migrate toward regulatory jobs to see the future, but if they could, they wouldn’t be regulators. Regulations on their very best day severely distract the productive while inhibiting the profit motive, and then on their worst they lead to tragedies of the Bernie Madoff variety for creating a false impression that qualified people are minding the store.

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Post image for Reining in the Executive Branch Bureaucracy, Part 1: Measure Regulatory Costs

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 perverse federal industrial policy.

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 a true anti-poverty agenda. This series proposes a greater prosperity enhancing opportunity, streamlining the nearly $2 trillion hyper-regulatory state and the needless uncertainty and destruction of wealth and job opportunities it creates.

Federal agencies often overstate the benefits of their intervention to enlarge their powers over the public; This is not derogatory, the theory of bureaucracy and insights of public choice economics virtually compel it.

The Food and Drug Administration is doing it right now with e-cigarettes that emit only water vapor, the FCC with net neutrality, the EPA with its “social cost of carbon” witchcraft.

Meanwhile, most of the cost of regulation gets ignored. Big time.

We endlessley hear of regulation’s benefits. But of over 46,000 rules and regulations published in the Federal Register since 2001, but only 146 have both cost and benefit analysis. Another 72 bothered with cost analysis.

Furthermore, what bureaus deem benefits are sometimes costs.

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Post image for Obama Announces NSA Reforms Could Undermine U.S. Leadership in the Global Information Economy

President Obama outlined plans to “reform” the National Security Agency’s mass surveillance programs in a Friday morning speech at the Justice Department. To his credit, the president announced some positive changes that would reduce the programs’ invasiveness and improve their judicial oversight.

Unfortunately, his reforms would not end the indiscriminate and unwarranted bulk surveillance of Americans’ phone records, despite more than 100 members of Congress urging him to end the program. Instead, the president suggested shifting the burden of collecting, storing, and securing Americans’ phone records to telecom companies or another private “third party.” Simply moving all this data off the government’s servers—and presumably, off its balance sheet—does not transform an objectionable activity, like mass surveillance, into an acceptable one. The government will, after all, still be able to access privately held phone records without a warrant.

What is concerning is: if the administration succeeds in pressuring American telecom firms to serve as an extension of the U.S. intelligence community, why stop with phone records? The NSA is also authorized to collect Americans’ email records in bulk—but the agency stopped doing so in 2011, citing “operational and resource reasons.” Should phone companies take on this responsibility, strong-arming Internet companies to retain their users’ metadata is a logical next step. The unintended consequences and pitfalls of such a move are worth serious consideration.

In a world of data breaches and hackers, we need to be able to trust Internet providers whose services we rely on to communicate, transact, innovate, and create. When a company makes a promise to users about how it will use, collect, and store their information, it should be held to that promise, absent a specific and individualized reason to break it. Outsourcing bulk-data collection to America’s private sector would undermine trustworthy digital relationships, and with them, the nation’s enviable position atop the global information economy.

Have a listen here.

The Food and Drug Administration recently banned 23andMe, a genetic testing service, from marketing its product to consumers. CEI Executive Director and Senior Fellow Gregory Conko thinks the FDA should reverse the ban.