The Texas Social Media Law Is Blatantly Unconstitutional

“Texas Gov. Greg Abbott, who..signed a bill that aims to restrict social media platforms’ editorial discretion, says the new law “protects Texans from wrongful censorship” and thereby upholds their “first amendment rights.” The law, H.B. 20, is scheduled to take effect on December 2, but that probably will not happen, because it is blatantly unconstitutional and inconsistent with federal law.

Abbott, a former Texas Supreme Court justice who served as his state’s attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party’s base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.”

“the First Amendment applies to the government and imposes no constraints on private parties.

To the contrary, the First Amendment guarantees a private publisher’s right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate’s demand that The Miami Herald publish his responses to editorials that criticized him.

The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, “the Government may not…tell Twitter or YouTube what videos to post” or “tell Facebook or Google what content to favor.”

Yet that is what H.B. 20 purports to do. The law says “social media platforms” with more than 50 million active monthly users in the U.S. may not “censor” content based on the “viewpoint” it expresses. That edict covers any effort to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”

H.B. 20 makes a few exceptions, including “expression that directly incites criminal activity” and “specific threats of violence” that target people based on their membership in certain protected categories. But otherwise the rule’s reach is vast: As two trade organizations note in a federal lawsuit they filed last week, H.B. 20 “would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.””

Democrats Are Denying Basic Economics

“The simplest way to understand economics is that it is a reckoning with unavoidable tradeoffs. If you spend money on something, you may obtain something in return—but you lose the ability to use those resources on something else. In the world of politics, economics helps us weigh the merits of those tradeoffs. It answers the question: Do the benefits of a policy outweigh the costs? Sometimes the benefits are larger. Sometimes they are meager or even nonexistent. But there are always costs. To acknowledge this is merely to acknowledge reality.”

“White House press secretary Jen Psaki responded to a question about the tax impact of the $3.5 trillion spending plan now working its way through Congress by declaring that “there are some…who argue that in the past companies have passed on these costs to consumers…we feel that that’s unfair and absurd and the American people would not stand for that.”
When taxes are raised on corporations—the “companies” in Psaki’s response—corporations often respond by passing that tax on to others. In some cases, they pass costs to consumers. In others, as the Cato Institute’s Scott Lincicome wryly notes on Twitter, they reduce the amount they would have otherwise spent on wages. They have to pay more to do business, and so they make adjustments accordingly. Costs create consequences and tradeoffs.

Empirical research has consistently shown that a large portion of corporate tax increases is actually paid by labor down the line. There are some reasonable academic debates about the precise percentage of the tax paid by labor, and how that might change under certain circumstances. But there is little real debate about whether or not some of the costs are passed on. The point is that it happens. Workers, not owners, pay at least some share of higher corporate taxes.”

CNN Shuts Down Access to Facebook Pages in Australia After Court Ruling Holding Media Outlets Liable for Commenters

“In response to Australian court decisions holding media companies legally liable for the comments by users, CNN has blocked access to some of its Facebook pages from users in that country.

This is an inevitable outcome of a bad decision and a reminder of why it’s important not to try to force government-mandated moderation policies onto massive social media platforms that will inevitably lead to either censorship or lack of access to information.”

Seattle City Council Passes Rent Control by Another Name. Is It Legal?

“The Seattle City Council might have found a clever way around Washington state’s ban on local rent control policies. On Monday, it passed two bills that respectively require landlords to give generous notice to their tenants of any rent increases and to provide relocation expenses to low-income renters who do move in response to large rent hikes.
Current city and state law require landlords to give their tenants 60 days’ notice of any rent increase. One bill passed by the council would increase that notification period to 180 days, likely the longest notification period in the country.

And if a low-income tenant decides to move in response to a rent increase of 10 percent or more, landlords will be obligated to provide them with “economic dislocation relocation assistance” equal to three months’ rent, thanks to another bill passed by the council on Monday.

Both are the handiwork of Councilmember Kshama Sawant, a member of the Socialist Alternative party, who argues the twin bills are needed to protect tenants from a post-pandemic upswing in rents—and from capitalism more generally.

“Today’s victories will benefit tens of thousands of renters in Seattle, who are facing skyrocketing rent increases from profit-hungry corporate landlords and the venture capitalists and big banks who are [fueling] a speculative bubble,” said Sawant after the bills passed.

Landlords were less pleased with the bills’ passage, arguing during public comment that they’d raise their costs of doing business and are, per the Seattle Times, tantamount to rent control.

That latter charge could open up the new bills to legal challenges.

Washington state law preempts municipal governments from enacting laws “which regulate the amount of rent to be charged” and instead reserves that power under the state government.”

Biden’s vaccine mandate has cargo giants in a pre-holiday panic

“A trade group for air cargo giants like UPS and FedEx is sounding the alarm over an impending Dec. 8 vaccine deadline imposed by President Joe Biden, complaining it threatens to wreak havoc at the busiest time of the year — and add yet another kink to the supply chain.”

“The deadline has been hailed by public health officials as a way of increasing vaccination rates as the country continues to struggle with the Covid-19 pandemic. But business groups and conservatives have warned that it could have damaging economic impacts. The deadline brushes right up against the peak holiday season and as some of the biggest cargo distribution companies, including UPS and FedEx, are already battling unprecedented labor shortages.”

FTC Drills Alabama Licensing Board for Anti-Competitive Scheme Targeting Teledentistry

“As part of a consent agreement announced Tuesday, the Federal Trade Commission (FTC) said the Board of Dental Examiners of Alabama would stop enforcing rules that limited “consumer choice and excluded new providers” offering braces and other teeth alignment services.

Those rules were crafted in 2017, after startups like SmileDirectClub began operating in Alabama. According to the FTC, the board took steps to stop the expansion of “firms providing clear aligners in Alabama through a teledentistry model” by amending its rules to ban dental hygienists and other medical professionals from performing the scans that are necessary to ensure proper fitting of the alignment devices. Previously, licensed dentists were allowed to supervise the scans from a remote location. Under the new rules, they would have to be on-site when the scans were done.

Over the next two years, the board delivered cease-and-desist letters to providers who offered those services without on-site licensed dentists.

“The actions of the Dental Board have deprived consumers in Alabama of low-price, convenient options for teeth alignment treatment without any legitimate justification or defense,” the FTC argued in a complaint against the board. Those actions, the commission says, “unreasonably restrained competition” and violated federal law.

The case is a sequel to the FTC’s 2015 victory at the U.S. Supreme Court in a case challenging anti-competitive behavior by a similar board in North Carolina. In that instance, the North Carolina Board of Dental Examiners sent cease-and-desist letters to kiosks offering teeth whitening services. The practice of whitening teeth, the board declared, could only be done by licensed dentists.

When that case ended up before the U.S. Supreme Court, the justices ruled that licensing boards controlled by a majority of “active market participants” could not make deliberately anti-competitive rules—unless those boards were “actively supervised” by some other element of state government. As a result of that ruling, licensing boards enforcing anticompetitive rules could be sued for violating federal antitrust laws.

The ruling opened up a new legal avenue for challenging overbearing licensing boards that limit economic opportunities by blocking competition in certain professional fields. It was a resounding defeat for overreaching state regulation and “the culmination of 15 years of effort” Maureen Ohlhausen, then-chair of the FTC, told Reason shortly after the ruling.

That case laid the groundwork for the more recent actions in Alabama, where six of the board’s seven members are required by law to be licensed, actively practicing dentists. And the board’s actions are not “reviewed or approved by any neutral state officials with the power to veto or modify” its decisions, the FTC found.

Under the terms of the consent agreement struck between the FTC and the Alabama dental board, the board does not admit to violating any laws or to engaging in the alleged anti-competitive behavior. But, going forward, the board has agreed to stop requiring on-site supervision by licensed dentists of the alignment scans necessary for teledentistry services.

That should give residents of Alabama—some 1.8 million of whom live in areas deemed to have a shortage of dental professionals and could clearly benefit from a greater supply of teledentistry services—something to smile about.”

Ethiopia Is Plunging Into Chaos. It’s Time for a New Dayton Peace Process.

“The bloodshed and cost of last weekend’s offensive launched by the government against Tigrayan forces could begin to exhaust the parties, creating an opening for negotiation. This is the moment to prepare for concerted international action to prevent further chaos and to focus diplomacy on a comprehensive settlement. Secretary Antony Blinken’s recent meeting in Washington with his European Union counterpart Josep Borrell, the African Union’s high representative for the Horn of Africa, former Nigerian President Olusegun Obasanjo, and Sudanese Prime Minister Abdalla Hamdok was a good start. It is the first time Africa, the U.S. and E.U. have met at this level to chart a way forward on the Ethiopian crisis. And President Biden’s Oval Office meeting with Kenyan President Uhuru Kenyatta on Thursday is important, with Kenya now presiding in the U.N. Security Council. This is the level of commitment that will be required for a Dayton-style process to gain traction and be successful.

A future political settlement will need to be comprehensive. It should include lifting the blockade and immediate opening of humanitarian access to Tigray and other regions; the withdrawal of Eritrean troops and a commitment to non-intervention by neighboring powers; the release of political prisoners; negotiation of a new political balance for Ethiopia, with substantial regional autonomy and a fair system of fiscal federalism; and provision for an independent commission to investigate abuses of power.”

A Good Day for the Fourth Amendment

“In 2019, a California appeals court said a police officer may always enter a suspect’s home without a warrant if the officer is in “hot pursuit” and has probable cause to believe the suspect has committed a misdemeanor.

In June, the U.S. Supreme Court gave that decision the benchslap it deserved. “We are not eager—more the reverse—to print a new permission slip for entering the home without a warrant,” declared Justice Elena Kagan in Lange v. California.

The case originated when a California Highway Patrol officer observed Arthur Gregory Lange repeatedly honking his horn and playing his car stereo at a loud volume, both of which are traffic infractions at worst. The officer followed Lange’s car and switched on his overhead lights just a few seconds before Lange pulled into his own driveway. Lange, who said he never saw the officer’s lights in his rearview mirror, entered his driveway and pulled into his garage. The officer parked, exited his vehicle, stuck his foot under the garage door to prevent it from closing, followed Lange in, and had him perform field sobriety tests, which ultimately led to a DUI charge.

The state has “argued that the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry,” Kagan observed in her majority opinion, which was joined in full by Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But that position ran afoul of both SCOTUS precedent and the Fourth Amendment’s common law roots.

“On many occasions, the officer will have good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home,” Kagan wrote. “But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled.”

The common law origins of the Fourth Amendment commanded the same result. “‘To enter a man’s house’ without a proper warrant, Lord Chief Justice Pratt proclaimed in 1763, is to attack ‘the liberty of the subject’ and ‘destroy the liberty of the kingdom,'” Kagan wrote, quoting from a venerable British common law judgment. “That was the idea behind the Fourth Amendment.”

Writing in a concurrence that reads more like a dissent, Chief Justice John Roberts, joined by Justice Samuel Alito, denounced the majority’s reasoning as “absurd and dangerous,” “hopelessly indeterminate,” and likely to impede necessary police work.

Fortunately, Roberts managed to attract just one other vote. The Fourth Amendment had a good day in court.”