It’s not news that regulators in Utah are often uncomfortable allowing residents to make their own decisions about how, when, or if they engage in morally questionable behavior. The Beehive State has a well-known bee in its bonnet when it comes to alcohol, but what many non-Utahans may not know is that it is just as strict, if not more so, when it comes to preventing residents from gambling — even if they are in their own home. As federal lawmakers and many states edge toward legalizing, regulating, and taxing online wagering, some Utah legislators want to clarify the letter of their state law to make it absolutely clear that their residents don’t have a choice: gambling in Utah is illegal, whether it’s at a business, in your home, or on your smart phone.

As Eric Bianchi over at CalvinAyre.com reported last week, Utah state Rep. Stephen Sandstrom introduced legislation (HB 108) that would make it illegal for residents of the state to gambling over the Internet and on handheld devices. This is the second measure meant to address the increasing ease with which Utah residents are skirting the state’s strict gambling laws. Last month, the Utah House passed a bill (HB 40) that eliminated “vague working in the state law” that Internet cafes had reportedly been exploiting to allow online gaming — or as the bill’s sponsor Rep. Don Ipson charmingly put it, made them “havens for criminal activity.”

Utah is only one of two states in the nation that doesn’t have any form of legalized gambling, such as a casino or lottery (Hawaii is the other). But that doesn’t mean that residents aren’t doing plenty of gambling anyway.

Of course, that’s always the problem with prohibition, isn’t it? Bans never actually stop people from engaging in a behavior, it simply makes them a criminal if they do. If Utah’s Internet gambling ban is approved, especially as other states move toward legalizing the activity, Utahans will continue to gambling on and offline. Utah will lose tax revenue to neighboring states and residents will not have the protections of their government if their rights are violated while engaging in online gambling. Apparently, Utah regulators would rather try to protect the purity of the souls of their constituents rather than doing the job they are charged with which is to protect their right to life, liberty, and the pursuit of happiness.

It’s April 2012. You are a conscientious congressional staffer who still takes seriously the need to be a steward of taxpayers’ money. (Yes, I know for a fact, there are more than a few of these folks around on Capitol Hill.) You are watching closely events surrounding an “omnibus” or “minibus” spending bill deemed even by conservative Republican members as “must-pass” because it funds the military as well as other parts of government.

Suddenly, you hear about an outrageous earmark about to be slipped into the bill that would enrich a Fortune 500 company. You know how these things work; once the bill hits the floor, it’s very hard to excise one provision. So you decide to alert a network of fiscal watchdogs you’ve met with over the years to wage an instant campaign against this piece of corporate welfare.

You have all the information in the e-mail and are about to hit “send.” But then you remember something from a briefing you attended a couple days ago. The subject was the STOCK (Stop Trading on Congressional Knowledge) Act – aimed at stopping “insider trading” by members and employees of Congress – that your boss and nearly every other member of Congress voted into law in February.

At the time, you didn’t think the law would affect you since the only trading you do is indirect, through your mutual funds and pension. You were surprised to learn, however, that you now have a broad “duty of confidentiality” that encompasses not just trading on “material, nonpublic information,” but disclosing information to those who might.

You sit back and think, “It is indeed possible that someone I send this to could buy stock in the company, or could short the company based on the coming outrage.” You stare at the computer screen wondering how virtually no one noticed how this law could have potentially criminalized an act of whistleblowing as abetting “insider trading.”

Such a scenario is almost certain if the House enacts anything similar to the STOCK Act that passed the Senate last week by a whopping 96-3 vote. House Majority Whip Eric Cantor told reporters on Friday that the House plans to vote on a similar measure next week, saying only that “we intend to strengthen” the Senate bill.

The bill gained steam after a series of revelations in conservative author Peter Schweizer’s best-selling book, Throw Them All Out, that pointed out that many members of Congress routinely trade individual stocks and options, sometimes after receiving sensitive information. (Though how “privileged” and “nonpublic” the economic data they had received actually was has been a subject of debate.) A “60 Minutes” report based on some of Schweizer’s findings propelled the issue into the spotlight, with President Obama calling on Congress in the State of the Union to ban “insider trading” among its members and staff.

But lost in the justifiable outrage about politicians’ perks is discussion about how provisions in the Senate bill would actually work. Like the Stop Online Piracy Act (SOPA), another bipartisan bill with aims that nearly everyone agreed on, the proverbial devil is in the details of the legislative language. In fact, if the STOCK Act were in effect, the campaign against SOPA might have failed, because communication between Congress and outside groups would have been severely curbed.

Among the most important things to know about the STOCK Act is that  by specifically applying “material, nonpublic information” rules that govern officers and directors of a corporation to Congress, the  bill would bar in many instances the disclosure of such information as well as trading on it. In a press release describing the House version of the STOCK Act they sponsored, House Rules Committee Ranking Member Louise Slaughter (D-N.Y.) and Rep. Tim Walz (D-Minn.) declare that the bill “amends House ethics rules to prohibit Members and their employees from disclosing any non-public information about any pending or prospective legislative action for investment purposes.” [emphasis added]

But members and staffers have no practical way of assuring that those to whom they spread information won’t use it “for investment purposes.” As a result, communication about important matters with outside groups may decrease markedly, and the very aim of transparency in government that was an impetus for this bill would be undermined. Slaughter, already a champion of curbing grassroots speech through her call for restoration of the Fairness Doctrine, has actually implied that cutting off communication could be one the results of the law.

In a “fact check” she released on an earlier version of her bill, Slaughter conceded a fact that is often misreported – that there is no congressional exemption from insider trading laws. “Just as anyone else, Members of Congress and staffers are subject to current insider trading laws,” she wrote, giving an example of a CEO telling a member about a product recall that has yet to be announced. If it can be proven that the member sold his or her stock based on this info, this action would be “illegal under current insider trading laws.”

The problem, Slaughter argued, is that “current insider trading laws do not apply to nonpublic information about current or upcoming congressional activity.” A big part of the reason for this, Slaughter acknowledged, is that “insider trading” prohibitions stem from the “duty of confidentiality” in securities laws imposed on executives, directors, and others who deal with information regarding a publicly traded company.

By contrast, she noted, “The work of Congress depends on open lines of communication between Members and constituents and organizations.” Therefore, she concluded, ”we must create a broader prohibition that does not require a duty of confidentiality.”

Yet the Senate bill (S. 2038) would specifically impose a “duty of confidentiality” on members of Congress and their staffs. Section 4(g) of the Senate bill states that “each Member of Congress or employee of Congress owes a duty arising from a relationship of trust and confidence to the Congress, the United States Government, and the citizens of the United States with respect to material, nonpublic information.” [emphasis added]

The term “confidence” in the context of securities law does not mean faith in a particular institution — indeed it would be difficult to legislate confidence in Congress or any branch of government — but rather keeping matters in confidence. And under the “duty of confidentiality” imposed with regard to publicly-traded companies, many have been prosecuted for sharing information as well as trading on it.

A so-called “tipper,” wrote attorney Nelson Ebaugh in the Texas Journal of Business Law, “is exposed to insider trading liability for simply communicating material, nonpublic information even if he did not personally use the information to trade in the company’s securities.” Ebaugh added that courts are split on whether a “personal benefit” is even required for guilt.

Ebaugh and other experts have argued that insider trading rules have been applied so broadly to such “tippers” of corporate information that they inhibit disclosure about corporate wrongdoing. If these rules were applied to information about upcoming congressional action, it would have serious, if not more severe, effects in muzzling whistleblowers.

In addition to the e-mail to activists from the beginning of this article, conference calls and off-the-record meetings with ideological activists, such as the famed “Wednesday meeting” created by Grover Norquist, could also be curtailed. In the corporate word, the Securities and Exchange Commission has cracked down on what it calls “selective disclosure” to analysts. As a result, under Regulation Full Disclosure, most public companies put information about conference calls on their web site and/or post the recorded call for all to hear.

Following this precedent, if the STOCK Act is passed, the SEC may require meetings and calls in which Congress members and staffers participate to be open to the public or not occur at all. The result would be less outflow of information from Congress and a less-informed public.

The exposes of Schweizer and others raise serious issues that about power and privilege need to be addressed. Sensible measures, such as prohibiting members and their spouses from participating in initial public offering (which is not in the STOCK Act) as well as more rapid disclosure of stock trades (which is), should be enacted. Unfortunately, the bulk of the STOCK Act bills currently before the House and Senate would muzzle much of the communication necessary for sunlight and reform.

Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being wrongly accused of racial or sexual “harassment” based on your classroom speech. Civil-liberties advocates, like the Foundation for Individual Rights in Education, rely heavily on adverse publicity to save wrongly accused professors from being disciplined and fired by campus disciplinary bodies. They put to good use Justice Brandeis’s insight that publicity deters wrongdoing and helps cure social evils. As Brandeis once noted, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

But as the plight of Lawrence Connell at Widener University School of Law illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he increasingly risks being punished for “retaliation” against them, even when harassment charge is baseless. Connell was convicted of “retaliation” because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal “retaliation.”

Syndicated columnist Steve Chapman is criticizing President Obama’s proposal in the State of the Union address to require students to attend high school longer before being allowed to leave. As I noted earlier, the president would like to require students to attend school until they are at least 18, and the National Education Association, one of his biggest supporters, wants to require students to stay in school until age 21.

As Chapman notes, “Most states now allow students to drop out at 16 or 17.” The reason for this is that while most students benefit greatly from staying in high school, “the youngsters who are most likely to drop out are the ones who are least likely to learn if they stay. If they are 1) struggling to pass, 2) unwilling to apply themselves, 3) chronically tardy and absent, or 4) simply not very bright, they won’t learn much from being [in] a classroom—for two extra years.” As Chapman points out, experts are skeptical of Obama’s proposal (skepticism echoed by analysts quoted in the Washington Examiner):

James Heckman, a Nobel laureate economist at the University of Chicago who specializes in education, is skeptical of the proposal. At the college level, he told me, “The returns to people who are not very able or not very motivated are typically quite low.” There is evidence that kids may get some benefit from being required to stay in high school until 16 instead of 15, he says, but “it’s a weak reed to lean on.”

Let’s also not forget that the highest dropout rates are in the worst schools. Even the kids who want an education often graduate from these schools barely able to read. Where does Obama get the idea that the reluctant students, compelled to remain, will reap a rich harvest of learning?

It might be argued that even if there is no benefit from keeping these students around till they turn 18, there can’t be any harm. But think again.

The presence of disruptive, unmotivated kids in a class is a drain on teachers, a distraction to other students, and a daily obstacle to learning. One of the best things you can do for students who want to do the right thing is to remove those who would rather goof off or make trouble.

It’s not clear that laws like this will even work. A 2010 Johns Hopkins University study found that when six states raised the mandatory attendance age, three saw no increase in graduation rates—and one saw a decline. . .

If you want to keep unwilling students in school, you can spend money on truancy enforcement, which means taking money away from the willing students. It would be more rational to use the funds on education improvements so more kids will choose to stay.

A private company—or a private school—whose customers are fleeing has to come up with ways to keep them around. In Obama’s public sector, there is a quicker solution: Lock the exits.

As I noted earlier, requiring schools to warehouse increasing numbers of would-be dropouts could harm school discipline, and result in increased disorder and violence in inner-city schools with high crime and dropout rates. (The Obama administration has also undermined school discipline in some school systems by interfering with their ability to discipline even violent students; it has investigated school districts, and threatened them with lawsuits and the cut-off of federal funds, because their suspension rates did not satisfy a racial quota.  Former educator Edmund Janko explains here how he used to discipline white students more than black students in order to avoid a discrimination investigation by the Education Department’s Office for Civil Rights (where I used to work.) Janko would suspend whites for offenses that earned black students only a reprimand. That way, he could meet an informal racial quota in school suspensions. The Seventh Circuit Court of Appeals says such racial quotas are unconstitutional. As I explained, the Obama administration is relying on an interpretation of federal civil-rights laws that appears to conflict with the Supreme Court’s Alexander v. Sandoval decision.)

In his State of the Union address, the president also decried skyrocketing college tuition. But as I explained earlier, Obama administration policies, and recent Education Department rules, have helped drive up college tuition and accelerate cost increases at previously-inexpensive colleges. Thus, Obama helped cause the very college tuition increases that he complained about in his speech.

In national news: Congressman Kurt Schrader of Oregon announced last week that he is withdrawing his support of the CARE Act, the piece of legislation that will likely make it more difficult for small producers of wine, beer, and spirits to reach the market. In his statement, Rep. Schrader noted that after listening to the concerns of Oregon’s wine growers he now believes the legislation would be detrimental to their industry.

Also in national news: The Small BREW Act picked up a new cosponsor. Congressman Brad Miller of North Carolina signed onto the act that will reduce costs for small brewers and allow them to brew more while still being considered “small.” Currently, small brewers are defined as those making not more than 2 million barrels a year. The BREW Act would up that to 6 million barrels a year. The act also cuts the excise tax rate on the first 60,000 barrels for small brewers from $7 a barrel to $3.50 a barrel. The additional barrels after 60,000 and up to 2 million will be taxed at $16 a barrel.

Arizona: A ballot initiative is underway in Arizona that could give residents the chance to vote on whether or not they’d like a new tax on their alcohol. The tax would amount to 25 cents on every gallon of hard liquor and a dollar on every gallon on beer and wine. Like many other “sin taxes,” this will go to community programs and is sold as a remedy to the financial toll that alcohol abuse has on communities. Of course, this new tax would be in addition to the alcohol taxes that Arizona already has. Currently, the state of Arizona extracts $3 per gallon of spirits, 84 cents on every gallon of wine, and 16 cents on each gallon of beer. There are no plans to give money back to people for the scientifically proven health benefits of moderate alcohol consumption.

Connecticut: Earlier this month, Connecticut Governor Malloy released details of his plans to update the state’s alcohol laws. Among other things, Malloy hopes to legalize Sunday sales of alcohol, get rid of the holiday sales bans, and eliminate minimum pricing. If successful, the new laws will hopefully reduce costs for consumers and prevent residents from buying their booze in neighboring states.

Indiana: Bills pending in the House and Senate would allow consumers to buy cold Indiana-brewed beer in grocery, convenience, and drug stores. Currently, only liquor stores may sell cold beer. Even those who want cold beer in grocery stores are skeptical that the bill, which would not allow cold beer sales of beer made out-of-state would hold up against judicial scrutiny.

Kansas: Kansas lawmakers are considering changes in way alcohol is regulated throughout the state. The new laws would allow grocery stores to carry hard liquor, full-strength beer, and wine, while also allowing liquor stores to expand their product lines to non-alcoholic items. Another bill would also allow liquor stores to hold tastings.

Mississippi: At least one lawmaker in Mississippi is trying to drag the state into the 21st century. Rep. David Baria introduced legislation that will raise the allowed limit of alcohol by weight on beer from 5 percent to 8 percent. It’s still not very high, considering the increasing number of craft beers with upwards of 10 percent alcohol by volume, but it’s a step forward.  The folks at the non-profit outfit Raise Your Pints Mississippi have been fighting for years to remove the cap as well as officially decriminalizing home brewing in the state.

New York: Senator David Valesky has introduced a bill that would grant brewing licenses to farmers if they get a “certain percentage” of the beer’s ingredients from New York farms. Notably, the new license lets farmer-brewers sell their product directly to retailers — skipping the costly middleman of the wholesaler or distributor. The new license will cost $320, which is just slightly less than the cost of a microbrewery license.

Ohio: A new law set to go into effect on May 22 will make it easier for start-up craft breweries and distillers in the state. House Bill 243, which was signed into law by Gov. John Kasich in December, will allow small-batch distillers to open in the state and operate tasting rooms as well as allowing small breweries to serve samples and sell beer from the tasting rooms without needing to purchase a $3,900 special permit to do so.

Pennsylvania: The Pennsylvania Liquor Control Board (PLCB) is still lobbying for any idea other than privatization that would satisfy residents who are sick and tired of the outdated and inconvenient laws. The latest proposal, which would allow over 1,000 beer distributors to sell wine and six-packs (currently they must sell by the case) received a lukewarm reception from all parties. The distributors say they can sell wine, but licensing fees need to be low enough so they can profit. Consumers on the other hand want more convenience and want the state out of the business of selling alcohol.

Also in PA: A councilwoman in Philadelphia is catching grief for her proposal to keep Philly drinking for the kids! City Councilwoman Blondell Reynolds Brown introduced a measure that would extend bar hours from 2 a.m. to 3 a.m. in order to bring in more revenue to be put toward the school district. They estimate that the additional hour will bring in an additional $5 million in tax revenue. Not too shabby. (Hat tip to Ryan Lynch for the story.)

Virginia: Drown your sadness in a beer because it doesn’t look like the expensive and onerous alcohol regulatory regime in the Old Dominion State is going away anytime soon. Governor Bob McDonald hinted that he isn’t going to take up the effort to privatize the state-run liquor store system in the next session. After his valiant, but utterly failed attempt last year, it’s hard to blame him.

He is, however, taking baby steps in the right direction. At his request, Delegate Dave Albo introduced legislation that would allow state-run stores to remain open on Sundays.

Wisconsin: Considering that a big part of home brewing is really about showing off one’s skills to friends and competitors, Wisconsin’s ban on moving home-brew out of the home has placed a real burden on the activity since 2011. However, a bill (Bill LRB 3101) working its way through the legislature would allow hobby brewers to present their beer at meetings and fairs.

There has been much waxing in the last few days about how unfair it supposedly is that Mitt Romney was taxed at around 15 percent. And that Warren Buffett supposedly pays a lower tax rate than his beleaguered secretary does.

Many soundbites sound good, but have very harmful consequences in the real world. That’s the case for President Obama’s proposal in his State of the Union Address to not allow anyone to leave school until age 18 or graduation. This proposal originated with “the National Education Association, which stands to gain from the idea a measurable boost to its dues-paying ranks, and which has in fact proposed mandatory schooling for nongraduates up to age 21.” This proposal could result in an increase in school violence by bored and frustrated 17-year-olds who hate school but are forced to attend. It would also make it even harder for teachers to maintain order in dangerous schools, contributing to an exodus of talented teachers who would rather teach than be babysitters or policemen. And it could result in truancy charges and arrests for parents who fail to get their stubborn, fully-grown offspring to attend school.

As one commenter notes, “If the union is really pushing something like this, I wonder how many of the members actually welcome it. How many teachers really want to deal with a 17 year old who doesn’t want to be in school? The type that drop out can’t be a joy to teach.” Commenting on the NEA’s ultimate desire to keep people in school until age 21 (Obama wants every American to attend college or at least get “more than a high-school diploma”), another commenter notes, “I suppose Obama would send the cops after those notoriously unproductive dropouts Bill Gates and Mark Zuckerberg.”

Federal interference makes it much harder for schools to maintain discipline than it otherwise would be. In Commonwealth of Virginia v. Riley, the Education Department argued that a federal statute, the Individuals with Disabilities Education Act, sharply limits schools’ ability to expel violent students with learning disabilities, and that even when expulsion was permitted for serious crimes like murder, the school district would have to send a tutor to the prison at the school district’s expense.  Bureaucratic rules, partly designed to avoid lawsuits, also undermine school discipline: public schools in some politically-correct areas are unable to maintain the classroom order needed for learning, because teachers have no power to discipline bad actors in the classroom.

The Obama administration has made matters worse by interfering with schools’ ability to discipline even violent students.  It has investigated school districts for “racial discrimination” in violation of Title VI of the Civil Rights Act of 1964 because those school districts consistently suspended violent or seriously-disruptive students, and the resulting numbers of suspended students were not in proportion to the racial makeup of the overall student body (including the vast majority of law-abiding students). To end such an investigation, a school district is pressured to enter into a settlement mandating racial quotas in school discipline. Former educator Edmund Janko explains here how he used to discipline white students more than black students in order to avoid a discrimination investigation by the Education Department’s Office for Civil Rights (where I used to work).  Janko would suspend whites for offenses that earned black students only a reprimand.  That way, he could meet an informal racial quota in school suspensions. The Seventh Circuit Court of Appeals says such racial quotas are unconstitutional. But the Obama administration has taken a more aggressive stance on civil-rights issues than preceding administrations, such as holding institutions liable for racial disparities or impacts on minorities resulting from longstanding, merit-based policies on hiring, firing, and discipline, and arguing that federal anti-discrimination statutes override First Amendment rights.

(Originally, the Obama Administration insisted that school districts were liable for “discrimination” even if they treated all offenders the same regardless of race, under the so-called “disparate impact” theory of discrimination (under which a race-neutral practice, like requiring a high-school diploma, can be deemed discriminatory simply because it weeds out more blacks than whites, and thus has a racially “disparate impact”). When the U.S. Civil Rights Commission began investigating the Obama Education Department, it realized that such disparate-impact claims are legally suspect under Title VI (due to the Supreme Court’s Alexander v. Sandoval decision, which said that schools — unlike workplaces — are not liable for “disparate impact,” but only for intentional discrimination), and instead came up with a new rationalization for going after the school districts (it claimed that the racial disparities were circumstantial evidence of intentional discrimination under the Supreme Court’s Bazemore decision, which says that statistical disparities can be evidence of intentional racial discrimination, and places only weak limits on the sort of junk-science regression analyses that a plaintiff or civil-rights agency can rely upon to claim discrimination).)

As Walter Olson, the dean of law bloggers (he runs the world’s oldest law blog, Overlawyered), notes, parents, too could be adversely affected by mandating school attendance until age 18: “Watch out for the truancy cops, too,” since truancy now leads to arrests of parents: Free-Range Kids reports that a “Loudoun County, Va. mother says she was handcuffed and arrested after fifth instance of school tardiness.”

Some things should not be up for a vote. Among those things is whether consenting adults should be required to use condoms when they have sex. For many years, the AIDS Healthcare Foundation (AHF) has called for a mandate on condoms in adult films and recently collected enough signatures to add their legislation to the next city ballot. And last week the LA city council voted in favor of denying permits to adult films that do not abide by the condom requirement. While these efforts may be well-intentioned, a condom mandate violates actors’ rights to free speech, association, and choice—and likely will be counterproductive.

Current national workplace safety standards, as stipulated by the Occupational Safety and Health Administration (OSHA), require employers to provide personal protective equipment (PPE) for workers in hazardous situations—for example, hard hats for construction workers. Notably, OSHA laws provide exemptions for workers who refuse to use the PPE on religious grounds. Unlike many other OSHA protection rules, this condom mandate does not allow for any flexibility in the type of protection workers may use: it requires some form of barrier protection and would not allow actors to voluntarily not use the protection (though I doubt any actor would seek a religious exemption). While sexually transmitted infection is certainly a risk on adult film sets, a condom mandate is a one-size-fits-all solution that certainly doesn’t “fit all”.

As many in and out of adult film industry have noted, the mandate prevents actors and filmmakers from expressing themselves as they wish—a clear violation of the First Amendment. While “obscene” speech is not guaranteed the same constitutional protection as other types of expression, the adult industry as a whole cannot be lumped into the obscenity category. The “Miller Test,” which is used to determine obscenity based on the 1973 Supreme Court case, Miller v California, would have to be applied to every film before the state of California would have the right to restrict their expression.

Tying the issuance of film permits for adult films to a condom mandate would mean that for every film LA wanted to stop, the state would need to prove that “the average person, applying contemporary community standards,” would find that the work, taken as a whole, “appeals to the prurient interest,” and “depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,” and “lacks serious literary, artistic, political or scientific value.”  It’s unlikely that the city of Los Angeles would spend the time and money investigating the artistic merits of each film and less likely that producers will be willing to spend the money to fight a court battle over each movie.

Producers of adult films, like employers in other industries, are not obligated to hire workers who refuse to do the tasks they ask for. Condom mandate proponents argue that this has resulted in actors being pressured into not using condoms. Yet, the mandate assumes that if producers had no problem with it all actors would choose to utilize barrier protection. Statements from many adult film actors show that this is not the case. As Justine Joli, an adult film actress specializing in all-female films noted, the mandate would likely bring an end to her genre, rendering the films “unsexy” and unmarketable.

Actors have also stated their belief that condom usage on set is counterproductive in preventing disease transmission. As director Ernest Greene commented on his blog, condoms could increase the chances of transmitting sexually transmitted infections (STIs). “A single scene amounts to over two hours of intercourse…condoms frequently tear or unravel and the degree of latex abrasion on the internal membranes of female performers’ vaginas lead to micro-abrasions that make them more vulnerable to all kinds of STIs,” he states.

Furthermore, the condom mandate would likely do away with an industry safety measure that has proven effective in reducing STI transmission. The measure seeks to have adult film permits depend on whether producers comply with California employee safety standards. This would change actors’ status to employee from independent contractor. Such a change worries actress Ela Darling, who believes the change would end industry self-imposed STD testing procedures, which would then be considered “workplace discrimination,” as the Americans with Disability Act (ADA) generally prohibits employers from requiring HIV tests prior to making a job offer.

The AIDS Healthcare Foundation’s campaign, however well-intentioned, has not improved the safety of adult film actors. If anything, it has backfired. One of the organization’s most recent “victories” was in forcing the closure of the Adult Industry Medical Health Care Foundation, a health clinic that would conduct testing and maintain a database of adult actors’ health status. While it didn’t stop every case, it significantly reduced STI transmission in the industry more than any regulation ever could.

If the measure passes or the city of LA chooses to enforce a condom mandate on its own, the increased cost and burden on production will certainly drive many producers to other states, while others will simply produce “amateur” films, which have fewer health and safety procedures than the current industry.

This effort to force condoms onto the adult film industry is waste of time and money. Worst of all, it hurts the people it supposedly aims to protect and threatens to chip away at our most fundamental rights, the freedom of expression and individual choice.

Photo Credit: Medical Daily, Mario Anzuoni

A school superintendant has labeled a column in a school newspaper that criticized homosexuality as “bullying.” (The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that was labeled as “bullying” answered the question “no.” The school district also publicly apologized for the column, and said that it is “taking steps to prevent items of this nature from happening in the future.”)

Whatever the wisdom (or lack thereof) of featuring something like that in a school newspaper, it seems strange to argue that a viewpoint in a student newspaper is “bullying.” (The Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension,” “expulsion,” etc.) A conservative Christian who thought that homosexuality was immoral successfully challenged a school “harassment” code that punished students with such viewpoints in Saxe v. State College Area School District (2001), a case in which a federal appeals court ruled that there is no “harassment” exception to the First Amendment for speech which offends members of minority groups. Speech cannot be banned simply by labeling it as violence, either: for example, in Bauer v. Sampson, another federal appeals court ruled that a campus newspaper’s illustration depicting a college official’s imaginary death was protected by the First Amendment, even though the college declared it a violation of its policy against “workplace violence.”

But schools and anti-bullying activists have adopted incredibly overbroad definitions of bullying. The anti-bullying website NoBully.com, and schools like Fox Hill and Alvarado Elementary, define even “eye rolling” and other expressions of displeasure or hostility as bullying, even though doing so raises First Amendment problems.

The Obama administration claims bullying is an “epidemic” and a “pandemic.” But in reality, bullying and violence have steadily gone down in the nation’s schools, as studies funded by the Justice Department have shown. The Obama administration’s StopBullying.gov website defines a vast array of speech and conduct as bullying: it classifies “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors such as UCLA’s Eugene Volokh have criticized bills by liberal lawmakers like Congresswoman Linda Sanchez (D-Calif.) that would ban some criticism of politicians as cyberbullying.)

In December, a federal appeals court ruled in Flynn v. Holder that the National Organ Transplant Act of 1984 (NOTA) does not forbid compensation for the majority of “bone marrow donors.” That was great news for patients needing bone marrow transplants: As CEI’s Greg Conko noted earlier, the court’s ruling clarified that it is legal for approximately 70 percent of donors to be paid for their life-saving contribution, compensation that is essential because around 3,000 Americans die every year waiting for a marrow transplant because an appropriate match cannot be found. Only compensation provides an incentive for additional donors to come forward and contribute their life-saving cells.

I put “bone marrow donors” in quotes, because the majority of “marrow donations” are not actually donations of marrow at all. Instead, peripheral blood stem cells are isolated from circulating blood, and those stem cells develop into bone marrow in the new patient. That procedure is not covered by the plain language of the NOTA statute, which only bans sales of organs and organ parts, not blood parts.

Now, the Obama administration is asking the appeals court to vacate its ruling allowing donors to be compensated, and to rehear the case en banc. It argues that whatever the text of the NOTA statute may say, its reach should be judicially extended beyond organs to peripheral blood stem cells, in order to guard against the evil of “market forces”:

The Obama administration has asked a federal appeals court to reconsider its decision last month to allow compensation to people donating bone marrow cells harvested from their bloodstreams.

In a petition for rehearing by the full U.S. 9th Circuit Court of Appeals, Atty. Gen. Eric H. Holder Jr. argued that the court ignored the intent of Congress to shield all organ sales from “market forces” when a three-judge panel ruled unanimously on Dec. 1 that marrow cells collected from blood aren’t covered by the 1984 National Organ Transplant Act.

But there is no legal prohibition against “market forces” as applied to human cells, however much the Obama administration may hate “market forces.” Everyone acknowledges that it is perfectly legal to pay for human blood, semen, and ova donations, which NOTA does not treat as  organs. The Institute for Justice cogently argued that peripheral blood stem cells are more analogous to donating blood than bone marrow. And the Ninth Circuit agreed. For purposes of the Act, the appeals court concluded, peripheral blood stem cells should be considered blood parts, not organ parts. It “said bone marrow cells filtered from the donor’s bloodstream were blood parts, which can be sold legally, not organ parts covered by the 1984 ban. That law was enacted when bone marrow donation involved a surgical extraction through needles inserted into the spongy marrow in hip bones — a painful procedure legislators feared would be disproportionately endured by the poor if financial inducement were allowed.”

In short, the Obama administration’s position goes beyond the text and the policy rationale for NOTA’s ban on organ donations.

As the president of the Save Lives Now New York Foundation notes, there is a compelling public-policy argument for compensating bone-marrow donors:

The population of the United States will have to consider financial incentives for organ donation because there are not enough organs from deceased patients. Last year an estimated 13,000 patients died from brain death and only 8,000 families said yes to donation. Even if all 13,000 families said yes there would have only been 39,000 transplants (about 3 organs recovered per donor). The waiting list was 110,370 which means that even if all brain dead patients were to be donors, there would have been 70,000+ patients not getting a transplant. These patients are either on dialysis (renal patients) or they are dying. Therefore the medical community has to look to living donors for the needed organs. Almost every living donor is doing so because a mother, father, brother, sister, son or daughter needs a transplant. That’s understandable – love of family motivates them. Last year these family members totaled 6,565. So where will we get the remaining 65,000 donors? There has to be an incentive to encourage strangers to donate. Why should they forego three or four weeks worth of pay checks and be out of pocket for their travel, food, lodging and miscellaneous unreimbursed expenses related to living donation?

Altruism hasn’t EVER covered the need for organ donation – since 1988 when OPTN/UNOS started collecting statistics on this. In the first year (1988) there were 5,000 patients who didn’t get a transplant because of a lack of organs available. In 2010 there were 81,000 who didn’t get on. We have to come up with some appropriate financial incentives to motivate living donors to come forward.

Earlier, kidney donor Alexander Berger made the case for allowing compensation of kidney donors, as a way of saving thousands of lives. Allowing the sale of blood parts, like peripheral stem cells, is obviously an easier thing to justify than organ sales, but many commentators, like law professor Ilya Somin, have argued that organ sales should be legal as well to save lives.