Reason Magazine - Topics > The Nanny State

'The truth--well, the truth is that I've had a long-standing problem with heroin addiction'

mriggs@reason.com (Mike Riggs) — Wed, 23 Jul 2008 11:03:00 EDT

Bill Day was a reliable source of clean needles for San Antonio's heroin addicts until authorities forced him to shut down his operation. Day helped found the Bexar Area Harm Reduction Coalition in 2003, and collected over 10,000 dirty needles since the program started. And ironically, he had legislative support:

Day, who has AIDS but didn't get it through drug use, started passing out needles in San Antonio regularly a little over a year ago. Around the same time, the state Legislature authorized Bexar County, which includes San Antonio, to set up a separate pilot program.
But [District Attorney Susan] Reed said in August that anyone with a needle, even in the program, was breaking the law. "It's just a question of law," she said.
Attorney General Greg Abbott backed up Reed, saying people who possess drug paraphernalia as part of a needle-exchange program can be prosecuted because the law didn't specifically exempt them.

Read the whole story here.

Steve Chapman wrote in support of needle exchange programs here.

Hat tip to Austin reader, KJ Radebaugh.

What About Famous Original Singas Pizza?

jsullum@reason.com (Jacob Sullum) — Tue, 22 Jul 2008 16:40:00 EDT

New York City's regulation requiring the conspicuous posting of calorie counts on restaurants' menu boards was supposed to apply just to big chains that standardize their dishes and already do (or can easily afford) nutritional analyses. But A.P. reports that the threshold for the rule, 15 or more outlets nationwide, is low enough to include obscure local chains and quasi-chains:

"This has been an absolute nightmare," said Enrique Almela, director of operations at Singas Famous Pizza, which has 17 restaurants, most in the borough of Queens....
Almela spoke with The Associated Press from his car Wednesday as he rushed sample pizzas to a food laboratory. He said the calorie tests for his 35 different pizza combinations will cost $10,000, and he doubts they will produce accurate data.
"I may put 15 pepperoni on a pie. Someone else may put 12. We don't measure the amount of cheese we put on," he said. "If you put up roundabout numbers, how does that help anyone?"
The deadline also looked problematic for a unique class of New York City eateries: loosely affiliated, largely immigrant-owned restaurants that share the same name and sometimes the same suppliers, but operate independently.
Afgan Paper & Food Products, which distributes food and packaging materials to many of the eateries, said it was scrambling to get them calorie info.
"The stores are all calling and asking for information. We don't have it," said Mariam Mashriqi, a receptionist at the company.
In the meantime, Mashriqi said, some owners were paying for the laboratory tests themselves.
"These are small stores. They are barely making a profit," she said.

You can find recent reason coverage of the menu board rule here, here, and here.

[via Scott Stein at When Falls the Coliseum]

Can Drunk Driving Be Funny?

kmw@reason.com (Katherine Mangu-Ward) — Tue, 22 Jul 2008 12:07:00 EDT

The Washington Post's Gene Weingarten wrote a very funny column a couple weeks ago, in which he gets schnockered in a driving simulator and documents the results.

Recently, he discussed the process by which a column making light of drunk driving might get approved, and offered an interesting insight into the kinds of topics that are still a bridge too far, even in an age where presidential candidates admit to doing "a little blow."

When I first proposed the idea to [my editor] Tom the Butcher, he was very concerned about one possible result: What if I continued to ace the test, well into staggering drunkitude?
"Well," I said, "I can make that funny."
"I'm sure you can," he said, "but I will not publish it."
A spirited and enlightening conversation ensued, the details of which I cannot go into here for reasons of propriety. In essence I was arguing for the transcendence of truth, and the Butcher was arguing for the transcendence of moral and civic responsibility. Both arguments had merit, but he had rank.

Fortunately, Weingarten's driving after a bottle and a half of wine on no sleep and an empty stomach was...well, I'll let the test administrator tell it: "You ran off the road after a curve. You crashed into a bus. You killed a pedestrian. You had a frontal collision with a car driving in the opposite direction in the other lane. You killed a bicyclist. As the test ended, you were beginning a dangerous maneuver that might have caused a rollover if it had continued."

All's well that ends in a fiery crash, I always say. But seriously, would it have been a public service to spike the column if Weingarten had slept well, eaten a big dinner, and been more or less OK after a few drinks?

More on the ever-falling acceptable blood alcohol level here.

"They Think Foot Massage Must Be Something To Do With Sex"

kmw@reason.com (Katherine Mangu-Ward) — Mon, 21 Jul 2008 17:30:00 EDT

A crackdown on Chinese foot massage parlors is underway in Los Angeles: "Authorities have raided about a dozen foot massage parlors in recent months, from San Gabriel to Rowland Heights, charging operators and masseuses with fines of up to $1,000."

Which is weird really, because if you think about it, who needs a cheap foot massage more than a jackbooted thug?

An attorney representing a new association of foot massage parlor owners has argued that the industry employs more than 1,000 people—many of the poorest Chinese emigres hoping to establish a foothold in the United States.

So is it protectionism? Or prudery?

"They think foot massage must be something to do with sex," [shop owner Ching] Lau said. "They don't understand how popular this is in Asia. It's part of Chinese culture."

More on the thuggery of cosmetologists here and here.

Via Virginia Postrel's Dynamist blog.

McGill Also Found That 90% of Congressmen Talk Out of Their Asses

jsullum@reason.com (Jacob Sullum) — Mon, 21 Jul 2008 13:39:00 EDT

Last month the House Financial Services Committee rejected a bill co-sponsored by Chairman Barney Frank (D-Mass.) and Rep. Ron Paul (R-Texas) that would have blocked Treasury Department regulations aimed at preventing online gambling. Speaking against the bill, Alabama Rep. Spencer Bachus, the committee's ranking Republican, explained that the Unlawful Internet Gambling Enforcement Act (UIGEA), the law that requires the regulations, is all about saving the youth of America from a potentially lethal addiction. "McGill University found that one-third of college students who gamble on the Internet ultimately attempted suicide," he averred. He added, "That is why the rate of suicide on our college campuses has doubled in the past 10 years."

In a belated response to Bachus' startling claim, the Safe and Secure Internet Gambling Initiative, an industry group, cites McGill University gambling and addiction researcher Jeffrey L. Derevensky, who says:

This assertion, which is reportedly based upon our empirical research, is not predicated upon any factual evidence. None of the studies conducted with adolescents or college students, to the best of my knowledge, have looked at a connection between Internet wagering and suicide attempts.

In a June 25 press release, Bachus revised his claim, saying, "A study by McGill University found that nearly one-third of teenage compulsive gamblers attempted suicide" (emphasis added). That sounds a little more plausible, depending on how compulsive gambling is defined. But according to Derevensky, Bachus is still wrong to cite McGill research in support of his assertion. In any case, given that only 7 percent or so of online bettors qualify as "problem gamblers" (according to a 2007 survey by the British Gambling Commission), throwing everyone who has ever gambled online into that category is a pretty big mistake. Then, too, while Bachus said suicides on college campuses have doubled in the last decade, the CDC says suicides among 15-to-24-year-olds fell by 28 percent between 1990 and 2003, then rose by 8 percent in 2004 before falling by 3 percent in 2005, the latest year for which data are available (PDF).

You can watch Bachus rail against online gambling here. I explain why financial institutions are vexed by the proposed UIGEA regulations here.

Addendum: Several commenters wondered whether Bachus is conniving or clueless. Last summer, after Radley Balko testified at a hearing on Internet gambling before Frank's committee, he described an exchange with Bachus that supports the latter interpretation.

San Francisco May Damn-Near Outlaw Smoking

rbalko@reason.com (Radley Balko) — Wed, 16 Jul 2008 15:51:00 EDT

Two new proposals on the table in San Francisco:

Smokers would find it harder to buy their cigarettes and light up in public under two proposals under consideration by the San Francisco Board of Supervisors.
Mayor Gavin Newsom has proposed prohibiting tobacco sales in pharmacies, including Walgreens and Rite Aid. The city's public health chief said the proposal is modeled after rules in eight provinces in Canada but has not been tried anywhere in the United States.
Supervisor Chris Daly has proposed legislation that would vastly limit areas where people can smoke.
Gone would be smoking in all businesses and bars, which now make an exception for owner-operated ones.
Gone too would be lighting up in taxicabs and rental cars, city-owned vehicles, farmers' markets, common areas of apartment buildings, tourist hotels, tobacco shops, charity bingo games, unenclosed dining areas, waiting areas such as lines at an ATM or movie theater, and anywhere within 20 feet of entrances to private, nonresidential buildings.
Mitch Katz, director of the Department of Public Health, said he strongly supports both measures - even if they are angering business owners who say it's one more example of San Francisco City Hall overstepping its bounds.
"Tobacco remains the No. 1 cause of preventable death in the U.S. - period," he said. "It's government's responsibility to protect people from obvious risks."

Armed and Dangerous?

schapman@tribune.com (Steve Chapman) — Mon, 14 Jul 2008 07:00:00 EDT

Americans often buy guns for self-defense, a purpose that now has Supreme Court validation. But according to advocates of gun control, those purchasers overlook the people who pose the greatest threat: themselves. Anyone who acquires a firearm, we are told, is inviting a bloody death by suicide.

So says Matthew Miller, a professor at the Harvard School of Public Health. "If you bought a gun today, I could tell you the risk of suicide to you and your family members is going to be two- to tenfold higher over the next 20 years," he told The Washington Post. Since the chance of a gun being used for suicide is so much higher than the chance of it being used to prevent a murder, we would all be better off with fewer firearms around.

It's a rich irony—as though smoke alarms were increasing fire fatalities. But the argument raises two questions: Is it true? And, when it comes to gun control policy, does it matter?

As it turns out, the claims about guns and suicide don't stand up well to scrutiny. A 2004 report by the National Academy of Sciences was doubtful, noting that the alleged association is small and may be illusory.

Florida State University criminologist Gary Kleck says there are at least 13 published studies finding no meaningful connection between the rate of firearms and the rate of suicides. The consensus of experts, he says, is that an increase in gun ownership doesn't raise the number of people who kill themselves—only the number who do it with a gun.

That makes obvious sense. Someone who really wants to commit suicide doesn't need a .38, because alternative methods abound. Gun opponents, however, respond that guns inevitably raise the rate because they're uniquely lethal. Take away the gun, and you greatly increase the chance of survival.

But in his 1997 book, Targeting Guns: Firearms and Their Control, Kleck points out that "suicide attempts with guns are only slightly more likely to end in death than those involving hanging, carbon monoxide poisoning, or drowning." It's not hard to think of some other pretty foolproof means of self-destruction—such as jumping off a tall (or even not so tall) building, stepping in front of a train or driving at 80 mph into a telephone pole.

People who use guns are generally hellbent on ending their lives. So deprived of a sidearm, they will no doubt find another reliable method—rather than swallow a dozen aspirin and wake up in the emergency room. Banning guns is no more likely to reduce suicides than banning ice cream is to curb obesity.

A few decades ago, various European countries changed the type of natural gas used for home heating and cooking—replacing a toxic form with a harmless variety. That step eliminated one time-tested way of killing oneself. Alas, while the number of gas suicides declined, in most of these countries, the death toll didn't.

The same pattern holds for guns. The National Academy of Sciences report noted that any link between firearms and suicides "is not found in comparisons across countries." The number of guns in a nation tells you nothing about its suicide rate.

But let's suppose science could establish that people who obtain firearms do indeed increase their death rate (or the death rate of their family members) from suicide. So what?

Buying a car may shorten your lifespan, since traffic accidents are a major killer. Building a backyard swimming pool creates a potential fatal hazard to you and your loved ones. But nobody says the government should interfere with such decisions.

Personal safety is a far more central matter of individual autonomy than those choices. A mentally stable person living in a crime-ridden neighborhood should be free to judge whether she's more at risk from street criminals than from a spell of intense depression.

Presumptuous paternalists argue that Americans should be deprived of guns because gun owners are their own worst enemies. A lot of Americans would reply: We can't trust ourselves, but we can trust you?

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

How Can You Have Your Pudding If You Don't Drink Your Wine?

jsullum@reason.com (Jacob Sullum) — Fri, 11 Jul 2008 13:14:00 EDT

Writing in Time, John Cloud notes that "the U.S. seems to be in the midst of one of its periodic alcohol panics, this one focused on adolescents," even though drinking by teenagers has been declining since the early 1990s. "The data indicate there are fewer young drinkers," Cloud writes, "but a greater proportion of them are hard-core drinkers." He blames "the all-or-nothing approach to alcohol" that prevails in the United States and makes the case for "the Southern European model of moderate, supervised drinking within families":

The way to produce fewer problem drinkers is to create more drinkers overall—that is, to begin to create a culture in which alcohol is not an alluring risk but part of quotidian family life....There's evidence that drinking with your kids—not buying them alcohol for a party but actually drinking with them at home—is a good way to teach responsible drinking behavior.

In one study, for example, teenagers who drank with their parents (as opposed to getting alcohol from their parents for unsupervised parties) "were about half as likely to say they had drunk alcohol in the past month and about one-third as likely to say they had had five or more drinks in a row in the previous two weeks." The researchers concluded that "drinking with parents appears to have a protective effect on general drinking trends."

But Cloud notes that "social host laws," which hold adults criminally responsible for underage drinking on their property, discourage the modeling of temperate drinking. He laments that "we are encouraging kids to leave their homes (presumably by car) and drink in parks or abandoned warehouses or anywhere else they think they won't get caught and their parents won't get arrested."

The article, which quotes addiction psychologist and reason contributor Stanton Peele (who pointed it out to me), is worth reading in full, not least for the calm, measured tone we have not come to expect from newsweeklies on subjects like this.

I discussed zero tolerance and the "underage drinking epidemic" in a 2002 column.

"If We Could Just Get Our Arms Around the Internet"

kmw@reason.com (Katherine Mangu-Ward) — Mon, 07 Jul 2008 14:41:00 EDT

With gloomy economic news all around, people are fretting a little more than usual about cash flow these days. So thank god Oregon has already taken steps to keep people from safely, legally getting their hands on a little extra cash in an emergency.

Neon signs like the one at right are going out all over the state as three out of every four payday lenders close their doors after the state imposed a cap on the amount of interest they can charge. The storefronts that remain open to wrap up pending business are having to turn away prospective customers:

"The sad part is we have 25 people a day coming into our stores begging to borrow from us," said [Ken Wayco, president of small, high-interest lender], "but we can't lend to them."

So where are those people going? Online, of course:

In Oregon, officials now worry most about residents going into debt with payday lenders on the Internet, Tatman said.
Internet lenders selling to Oregonians are required by law to register with the state and abide by its regulations, but many do not.
It is difficult for the state to control Internet payday lenders who charge triple-digit interest rates, Tatman said. "If we could just get our arms around the Internet better to make sure people don't jump out of the fire and into the frying pan."

We'll give the final word about this state of affairs to the upbeat Angela Martin, director of economic fairness for Our Oregon, a nonprofit "consumer advocacy group" in Portland.

"It is fantastic for Oregon."

Woo Hoo, a Sparkler!

jsullum@reason.com (Jacob Sullum) — Fri, 04 Jul 2008 15:07:00 EDT

The Portland Press Herald reports that the Maine Fire Marshal's Office prepared for Independence Day by staking out fireworks stores in neighboring New Hampshire:

Mainers suspected of buying fireworks may be stopped and arrested as they cross the border. Penalties range from a $50 fine for having less than $100 worth of fireworks to 10 years in prison for having more than $5,000 worth of fireworks.

While Mainers who want to explosively express their excitement on the Fourth are limited to sparklers and caps, New Hampshirites can legally purchase and use some pretty cool stuff (PDF), including not just multistage fountains but flying and exploding products such as the Aerial Super Seven Shell, the Wolfpack Missile Base, and the nine-shot 4th of July Spectacular. No wonder Mainers are tempted to smuggle.

Although New Hampshire does not allow "firecrackers, bottle rockets and reloadable type shells," its "permissible fireworks list" runs to 57 pages of tiny print. And unlike Pennsylvania, New Hampshire lets people not only buy mortars but use them. When I lived in Northern Virginia, I knew people who would go up to Gettysburg every year to get fireworks that were legal to sell in Pennsylvania, but only for use in other states. They were illegal to use in Virginia too, but police tended to look the other way on Independence Day and New Year's Eve.

I've been disappointed by the fireworks regime in Texas, which I imagined would be wide open. Although the state law is fairly permissive, there are many local restrictions. And Dallas, where I live, bans all unlicensed use of fireworks. If you happen to live in New Hampshire or some other firework-friendly place, please set off some mortars and rockets for me.

Greg Beato and Robert Stacy McCain defend real fireworks.

[Thanks to Michael Graham for the tip.]

"It Is Unclear Why He Did That"

kmw@reason.com (Katherine Mangu-Ward) — Thu, 03 Jul 2008 13:38:00 EDT

A tidy example of how government can corrupt business, rather than the far more frequently chronicled reverse case:

In my idyllic suburban hometown of Wellesley, Massachusetts, the police shut down a brothel a few days ago. According to the Wellesley Townsman, one of those arrested for running the business was a man named William Eastwick.

The paper also notes that six months ago the Wellesley police shut down a similar operation nearby. That police action was based on a tip from the same William Eastwick. Oddly, when referring to the Eastwick tip, the town paper says "it is unclear why he did that."

The temptation to shut down your competitors using the heavy hand of the state is ever-present. This little example of dueling rats is basically the same thing as, say, protective tariffs on steel or corn subsidies. Because the businesses in question happen to be illegal, the instruments are even blunter than usual.

Via Greg Mankiw

Chicago Ain't No Kind of Town

gillespie@reason.com (Nick Gillespie) — Wed, 02 Jul 2008 15:04:00 EDT

In an op-ed in Sunday's Chicago Tribune that is based on the cover story of the August-September cover story for reason (on sale now but why not subscribe already?), Senior Editor Radley Balko noted the nanny-state ways of the Windy City:

At Reason Magazine, we recently took a look at how the 35 most-populous cities in the United States balance individual freedom with government paternalism. We ranked the cities on how much freedom they afford their residents to indulge in alcohol, tobacco, drugs, sex, gambling and food. And, for good measure, we also looked at the cities' gun laws, use of traffic and surveillance cameras, and tossed in an "other" category to catch weird laws such as New York's ban on unlicensed dancing, or Chicago's tax on bottled water.

The sad news, Chicagoans, is that your town came in dead last. And it wasn't even close.

Read the whole thing.

And then check out this response, from Trib columnist Mary Schmich:

[The Reason folks] whimpered about our police cameras, our tax on bottled water, our high cigarette and alcohol taxes, and, in the way of many a 10-year-old, seemed to equate the fact that we can't have whatever fun we want whenever we want it with an assault on our basic freedom. But where some people see paternalism, we weirdos believe that most of Chicago's rules help turn unruly city dwellers into civilized citizens. Big cities are like big families-put a lot of people into a small space and somebody has to be charged with the power to say "Stop it."

Whole thing here.

reason on the nanny state here.

Update: Jeff Walker of OnMilwaukee applauds the relatively positive ranking for Jeffrey Dahmer's hometown (Milwaukee was deemed sixth-most-free city; Las Vegas took top honors) and notes:

"We like to talk about how fat we are, but there are many chubbier cities. Anyway, Milwaukee is far from a city full of nannies and regulations, and one that still knows how to have fun. Should our government be more imposing or should it just let people make their own decisions about health, risk and vice. There's a balance here, for sure."

Now: Cell Phone Check Points

rbalko@reason.com (Radley Balko) — Tue, 01 Jul 2008 16:22:00 EDT

California's "hands-free" cell phone law had only been in effect a few hours before police across the state began setting up checkpoints to nab gabbers.

I would doubt these checkpoints are legal. The Supreme Court has approved checkpoints to find drunk drivers and fugitives and to catch illegal immigrants or drug traffickers near the border, but has generally said they're unconstitutional for other purposes—including, believe it or not, for random drug searches.

MORE: Per the comments, the newscast may have been misleading in calling these "checkpoints." If it's just a matter of police watching from the side of the road as people drive by, it's not a checkpoint. Which, come to think of it, is almost certainly what's happening. If these were actual checkpoints, you'd think most people would have the common sense to hang up as they approach.

Free the Fireworks!

info@reason.com (Greg Beato) — Mon, 30 Jun 2008 15:00:00 EDT

Outside of hardcore porn, is there any art form as static as a Fourth of July fireworks display? Once you’ve seen one, you’ve seen them all, yet year after year, like stoned zombies staring at screensavers, we tilt our heads to the sky and watch amateurs and professionals alike stage the pyrotechnical equivalents of gang bangs. If a dozen silver comets shooting across the heavens are spectacular, 100 are even better! And why not throw some crimson, gold, and turquoise into the mix too? Thus the spectrum expands, the explosions multiply, the choreography grows increasingly byzantine—but the basic plot remains unchanged.

So why are we so crazy about fireworks? In 1976, the year the United States celebrated its bicentennial, American patriots blew up 29 million pounds of fireworks. In 2006, the American Pyrotechnic Association reports, we exploded nearly 10 times that amount—in part, no doubt, because 10 times as many events have become fireworks appropriate. NFL games, casino openings, political conventions, weddings, and even a few funerals now get the sort of schlock-and-aww pageantry we once reserved for the Fourth.

Industry boosters typically attribute the growing popularity of fireworks to better safety standards and fewer regulations prohibiting their use. But the pyrotechnics still do injure people; 9,200 Americans required medical attention due to fireworks injuries in 2006, according to Consumer Product Safety Commission statistics. (In contrast, 220,500 people suffered toy-related injuries that year.) And in most states, regulation remains strong. While prosecution is mainly reserved for individuals caught selling products that exceed Washington’s safety guidelines for “consumer fireworks”—e.g.,
M-80s, quarter sticks, and professional display fireworks that require a federal permit—penalties for much lesser offenses can be comically severe. In New York, for example, you can get three months in the slammer for possessing $50 worth of sparklers.

Thus, while fireworks may splatter the sky with every neon hue Chinese chemists can summon from strontium and copper chloride, they exist in a legal and moral gray zone. They’re kind of safe and sort of permissible, but also sort of dangerous and kind of against the law. All of which, of course, makes them immensely appealing. They offer us a chance to engage in semi-illicit behavior without excessive risk of punishment or serious injury, at least until the NYPD makes zero sparkler tolerance its primary mandate.

If John Adams were alive today, he’d be issuing $500 fines for possessing sparklers too—but only because it would pain him to see us commemorating the Fourth in such timid fashion. In 1776 he exclaimed in a letter to his wife that the anniversary of America’s independence “ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.”

In the decades that followed, Adams’ countrymen readily embraced this edict—or at least the “guns, bells, bonfires” part of it. By the end of the 19th century, however, the social fallout from chaotic Independence Day celebrations began to coalesce into an anti-fireworks movement. In a 1904 letter to The New York Times, a physician lamented the Fourth as “a sad story of amputated little fingers, arms, or legs.” In 1910 a Philadelphia rabbi called it “the annual day of slaughter of the innocents, the day of conflagrations, the day of compulsory self-exile, the day of agony for the sick and feeble.” Newspapers ran stories about drunken mobs firing guns in the streets, shooting Roman candles into crowds, and attacking police officers.

Progressive advocacy groups such as the Playground Association of America, the Russell Sage Foundation, and the American Medical Association began to actively campaign for a “safe and sane” Fourth of July. “In 1903 the AMA began keeping a tally of people who were killed and injured by fireworks,” says James R. Heintze, author of The Fourth of July Encyclopedia. “And out of that movement the legislation began to occur in a number of different cities.”

In her 1989 book Glorious Fourth: An American Holiday, an American History, the historian Diana K. Appelbaum writes that the AMA reported 4,543 fireworks-related deaths from 1903 to 1910. Cleveland, Chicago, and other major cities started banning the private use of fireworks and offering “safe and sane” celebrations that included parades, pageants, and the sort of large public fireworks displays that remain popular today, in the place of unregulated displays of spontaneously combusting patriotism. Individual citizens could no longer be trusted to celebrate the roles independence and liberty played in their lives.

But some Americans will give up their sparklers only when you peel them from their cold, dead, occasionally fingerless hands. Today, fireworks that meet a set of requirements established by the Consumer Product Safety Commission are legal at the federal level, but in states and municipalities where they’re regulated more stringently, the locals simply devise ways to get around the law. In Wisconsin individuals aren’t allowed to buy fireworks. Organizations can, but only after obtaining a permit issued by a local government official.

Some communities allow retailers to sell permits directly to their customers, however, as long as they promise to pass along the fees they collect. Because individuals aren’t allowed to purchase fireworks even with a permit, the retailers establish “user associations” that consist entirely of their customers. The customer buys his stockpile of fireworks, buys a permit, joins the association, and in one seamless transaction is transformed from a guy who’d like to set off some pinwheels in his backyard into an officially sanctioned community organization.

No doubt such ingenuity is as much a testament to the American spirit as the 16-shot “Untamed Retribution” aerial repeater, which comes in a package emblazoned with a bald eagle whose menacing, belligerent glare suggests little tolerance for namby-pamby expressions of patriotism like smoke pots and pie-eating contests.

But should the people of Wisconsin have to resort to such elaborate workarounds just to get their hands on some neutered, prettified sky bombs that even a pacifist floral arranger could love? In the eyes of John Adams, celebrating the nation’s birthday in noisy, incendiary fashion wasn’t just a right; it was a duty! To fulfill that duty in Wisconsin, alas, you have to behave like a Soviet Union bureaucrat trying to wangle himself a few extra vodka coupons.

In the first decade of the 20th century, when as many as 600 citizens were dying from fireworks injuries each year, such regulations may have been easier to tolerate. From 1988 to 2004, according to the Centers for Disease Control, the U.S. averaged approximately 6.4 fireworks-related deaths per year. According to the American Pyrotechnical Association, the number of injuries per 100,000 pounds of fireworks dropped 91 percent from 1976 to 2006. Meanwhile, with professional outfits like Fireworks by Grucci and Pyro Spectaculars by Souza producing massive fireworks blitzkriegs in honor of nothing more than halftime, it’s only natural, in the age of YouTube, Home Depot, and all the other manifestations of do-it-yourself culture, for individual Americans to believe they have the right to emulate such efforts, especially on the one day of the year when we’re ostensibly celebrating our status as citizens of the freest nation in the history of the world.

Thus, as with porn, the escalatory nature of fireworks isn’t just an aesthetic phenomenon but a political one. Just as we test the boundaries of our freedom by pushing from Playboy to Hustler to Little Red Rides the Hood #2, we do the same by pushing from firecrackers to cherry bombs to items with names like Mineshell Mayhem and Live Free or Die. Blowing up huge caches of fireworks doesn’t just celebrate our freedom; it certifies it—a patriotic act our Founding Fathers would have readily endorsed.

Contributing Editor Greg Beato is a writer in San Francisco.

I Swear, Officer, It's Only Marijuana!

jsullum@reason.com (Jacob Sullum) — Wed, 25 Jun 2008 14:38:00 EDT

A Dutch ban on smoking in businesses open to the public takes effect on July 1, and owners of marijuana-selling "coffee shops" are worried. They're not worried because the ban will prevent their customers from smoking pot. Although the combustion products of any dried weed include toxins and carcinogens, cannabis is exempt from the law, which is ostensibly aimed at protecting employees. It's hard to see what purpose this disparate treatment serves, aside from horrifying American conservatives with the prospect of a topsy-turvy world in which you can smoke pot but not tobacco. But since European pot smokers often mix tobacco into their joints, The Independent reports, coffee shop operators are afraid the smoking ban will cut into their business:

"The new rule is nonsense," said Willem Panders, of the Dutch tobacco traders' union. "It will be almost impossible to enforce because how are you going to check if someone is smoking cannabis mixed with tobacco, or pure cannabis?"...
Marc Jacobsen, of BCD, a national association of coffee-shop owners which has been urging the government to give them special status, told the online version of Der Spiegel: "In a cafe you come to drink something. In a restaurant you come to eat. But when you come to a coffee shop you come to smoke, so smoking has to be allowed in a coffee shop."...
Sandy Lambrecht, the manager of the Bulldog coffee shop on the Leidseplein in the heart of Amsterdam, said: "The new rules are absurd. You come to a coffee shop to smoke, after all—it's ridiculous that we have to comply. The new rules are meant to protect employees like me, but the point is that we chose to work here."
Paul Wilhelm, the owner of De Tweede Kamer, one of Amsterdam's most famous coffee shops, founded in 1985, argued: "If the boys are old enough to be sent to Afghanistan, then you can't tell me that people want to protect them from smoke in the workplace. They're old enough to decide on their own. They can vote, they can go to war—but now they won't even be allowed to make this decision?"

These are not arguments for exempting coffee shops from the smoking ban; these are arguments for repealing the smoking ban.

[via the Drug War Chronicle]

Tennessee Takes the Fun Out of Toga Parties

mriggs@reason.com (Mike Riggs) — Tue, 24 Jun 2008 17:38:00 EDT

Tennessee Governor Phil Bredesen signed a measure last week requiring state-funded colleges and universities to notify parents any time their kid violates a school's alcohol or drug policy.

It seems that Bredesen and crew are banking on changes made in federal rules after the Virginia Tech shootings. The Department of Education modified the language in an effort to balance "safety, privacy, and treatment."

In other words, under the guise of keeping students safe, Tennessee lawmakers are forcing state schools to send home behavioral report cards for any kid under the age of 21, whether parents want to know or not.

Bredesen—who either believes (despite available evidence to the contrary) that a freshman or sophomore getting caught with pot or doing upside-down margarita shots constitutes an emergency; or is pretending to believe such a thing in order to force parents into doling out the kind of discipline that deans cannot—has likely gone too far with the new disclosure law.

Students who decide to challenge the law in future, perhaps after mom or dad cuts them off for smoking weed out of an apple, would probably win the court battle.

That is, if their parents don't ground them for getting caught doing a 20-second keg stand while wearing an adult diaper.

Ed Carson for reason on college drinking here.

The Difference Between Informing and Nagging

jsullum@reason.com (Jacob Sullum) — Mon, 23 Jun 2008 13:13:00 EDT

On Friday I attended a CDC-sponsored obesity conference where I participated in a panel discussion about laws requiring the conspicuous display of calorie counts in restauraunts, the topic of Steve Chapman's latest column. Chapman notes "there is little research to suggest that calorie alerts will make any difference in obesity rates," which is why a new study of fast food customers in New York City that was discussed at the conference is bound to be widely cited.

The researchers, all of whom work for the New York City Department of Health and Mental Hygiene, surveyed about 7,300 customers at 275 randomly selected locations of 11 fast food chains before the city's new menu board requirement took effect. (The regulation, which requires calorie counts as big as prices, is still being contested in court, but some chains are already complying.) The health department researchers found that 32 percent of Subway customers said they had seen calorie information, compared to 4 percent of customers at other fast food restaurants. Since Subway promotes a subset of its menu as lower in calories and fat than its competitors' offerings, using a pitchman who lost hundreds of pounds while eating at the chain every day, this disparity is not surprising. But even at Subway, calorie information seemed to make a difference for a minority of customers. Of those who reported seeing the calorie information at Subway, 37 percent (i.e., 12 percent of all Subway customers) said it affected their purchases. Subway customers who said they used calorie information bought about 100 fewer calories (based on data from receipts and survey questions) than those who said they didn't see it and those who said they saw it but didn't use it.

Notably, "there was no significant difference in mean calories purchased by patrons reporting seeing but not using calorie information and patrons who reported not seeing calorie information." In other words, simply making people aware of calorie content is not enough to affect their food choices. It may be that the information's influence is limited to people who are predisposed to count calories, in which case the impact of regulations like New York's will depend on the extent to which those people are not already taking advantage of nutritional information available on fast food chains' websites and on posters, counter mats, tray liners, and brochures in restaurants.

Already supporters of New York-style menu rules are using this study, which is scheduled to be published in the August issue of the American Journal of Public Health, to estimate how many lives can be saved by making calorie information more conspicuous. Given the uncertainty about who would lose how much weight and what the health consequences would be, this is a dubious exercise. Even if the health risks (or benefits) of extra pounds were well understood (they aren't), it's not clear that the Subway results can be applied to customers of other restaurants. Given its emphasis on healthier options, Subway probably is more likely than other chains to attract weight-conscious customers, the sort who seek calorie information and act on it.

Even so, only 12 percent of Subway customers in this study (i.e., 37 percent of 32 percent) said they noticed the calorie information and took it into account. This suggests that the vast majority of fast food customers are not very interested in nutritional information, as does the fact that most chains make it available without highlighting it in the way that the New York City health department thinks is appropriate. The restaurant business is highly competitive. If people are clamoring for impossible-to-ignore calorie counts, why don't more restaurants voluntarily provide them as a way of attracting customers? A legal requirement is necessary not because diners want conspicuous nutritional information but because, by and large, they don't want it. The information apparently does not enhance their dining experience and may even detract from it. Perhaps they prefer to enjoy their food without being reminded about what it may be adding to their waistlines.

Pretty soon, I suspect, customers of restaurant chains (the focus of the regulations, since it's hard for mom-and-pop restaurants to standardize dishes) will no longer be able to exercise their right not to know. In addition to New York City, jurisdictions requiring conspicuous nutritional information in restaurants include San Francisco; Santa Clara County, California; and King's County, Washington. California, New York state, Chicago, Philadelphia, and Washington, D.C. are considering similar requirements. As the restaurant industry faces a multiplicity of demands from various jurisdictions (Santa Clara County, for example, requires fat, carbohydrate, and sodium information as well as calorie counts), it may start lobbying for a national law that establishes a uniform standard.

Radley Balko criticized menu regulations in his Fox News column last week.

Force-Fed the Facts

schapman@tribune.com (Steve Chapman) — Mon, 23 Jun 2008 07:00:00 EDT

The 21st century has many problems, but a shortage of information is not one of them. Trying to avoid being endlessly barraged with facts is like trying to stay dry in a hurricane. But no matter. One government body after another has the idea that some people need more information, and it will be supplied or else.

The targets of this campaign are restaurants. New York City has a new law commanding chain outlets to post the calorie count of every item on menus and menu boards. The legislatures in New York and California are considering state laws to require even more extensive disclosures.

The reason, as the New York City Health Department explains, is that "New Yorkers get a third or more of their calories away from home. The lack of readily available calorie information in food service establishments makes it easy to consume too many calories without realizing it."

Imposing this mandate is supposed to help combat obesity. The Los Angeles County Department of Public Health asserts that if just 10 percent of restaurant patrons cut their intake by a mere 100 calories per meal, we would see a 39 percent decline in weight gain.

But the entire effort rests on assumptions that are unexamined and unfounded. The first is that consumers place a high value on the information being mandated. Actually, most of it is already accessible (online, among other ways) to anyone who is interested. In many places, it is available onsite, on tray liners or pamphlets.

Americans may say they would also like to see dietary information on menus. But providing it costs money, in a fiercely competitive industry. If patrons really wanted such disclosures, no law would be needed. Restaurants, eager to attract customers, would already be providing the numbers—just as they strive to offer other things that bring in business.

Among the attributes that most people look for when they dine out, nutritional information is below tasty fare, reasonable prices, courteous service, pleasant surroundings, agreeable lighting, and free parking. It's probably tied with clean restrooms and free mints at the cashier's counter.

The belief that more facts will generate wiser decisions is appealing but, at least in the realm of food, yet to be proved. No one seems to have noticed that as nutritional labeling has expanded, so have American waistlines. The federal government first required packaged foods to carry such information in the mid-1970s, and today, we are collectively fatter than we were then.

What does that suggest? Either people don't notice what's in the food they buy, or they don't let the knowledge affect what goes in their mouths.

"You can certainly say that most people certainly don't understand the food label," former Food and Drug Administration Commissioner Lester Crawford told the 2004 World Obesity Congress. "And it's not because they can't understand it, it's because they don't care to understand it."

If people don't heed the information they already have, they aren't going to waste effort digesting an additional onslaught of facts. The assumption is that people eat badly because they don't acquire the essential knowledge about their food. But it may be they fail to obtain those facts because they prefer to eat whatever they like. Not everyone approaches dinner as a research project.

There is little research to suggest that calorie alerts will make any difference in obesity rates. In 2004, the American Journal of Preventive Medicine reported that when women of normal weight were given this kind of information, it had no effect on what they ate, and that facts furnished in restaurants were also irrelevant in dining decisions.

A study in the Journal of the American Dietetic Association found that people who dine out frequently are less likely to pay attention to nutritional data than people who eat mostly at home. It suggested that "those who have a less nutritious diet are less likely to use food labels and have less interest in doing so."

As anyone who's ever raised a teenager knows, continually bombarding people with information that is useful or even crucial to their well-being is not always productive. Menu laws may not increase our ability to make good food choices. But they will certainly improve our ability to tune out.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Kneejerk Libertarian

Brendan.ONeill@spiked-online.com (Brendan O'Neill) — Thu, 29 May 2008 12:00:00 EDT

"She incarnates all the nannying, high-taxing, high-spending schoolmarminess of Blair's Britain. Polly is the high priestess of our paranoid, mollycoddled, risk-averse, airbagged, booster-seated culture of political correctness and health'n'safety fascism."

So wrote Tory Member of Parliament (MP) and newspaper columnist Boris Johnson in 2006, in a stinging attack on Polly Toynbee, The Guardian columnist and outspoken supporter of Britain's New Labour government. His Polly-bashing rant encapsulated everything that Boris claimed to loathe about Britain under New Labour: it was fearful, dull, killjoy, illiberal, hectoring, and bossy.

If Polly, impeccably middle-class and more than a little snooty, personified New Labour, then Boris—all shaggy blonde hair, accidental wit, and bumbling persona—personified the reaction against it. Polly wants order and respect and believes you can change the world by taxing fat cats an extra 5 or 10 percent. Boris wants fun and freedom and for the government to withdraw its snout from our everyday lives.

Or so some people believed. How foolish they were. On May 1, Boris was elevated from trouble-making columnist and MP to mayor of the great city of London—and in his first two weeks he has enforced the sort of miserabilist, petty authoritarian measures that will have Polly and her allies nodding enthusiastically as they read their morning papers over bowls of muesli.

First, Prime Ministers Tony Blair and Gordon Brown coated Britain in CCTV cameras, dished out Anti-Social Behaviour Orders (ASBO) to misbehaving kids, brought in new laws to limit free speech, and basically turned Britain into an open prison—and Boris berated them for it. As a libertarian myself (though of the left-leaning rather than the right-wing variety), I wrote numerous articles for Boris when he was editor of the The Spectator, attacking Blair's zero-fun, zero-tolerance approach to life, love, and liberty.

And yet, Boris's first actions as mayor have reeked to the high heavens of Blairite bossiness. The very first thing he did was ban the consumption of alcohol anywhere on London's public transportation system. As of June 1, it will be against the law to sip from a bottle of ale or swig from a can of lager on London buses, trams, and the Tube. Boris says his new law of mini-prohibition is designed to tackle "aggressive behaviour by drunken yobs."

This is the same Boris who once opposed New Labour's ban on smoking in public places. Despite what he says, it isn't true that London's trains and buses are awash with fist-waving drunks. Last year there were a whopping 1.6 billion passenger trips on the London Underground, and only 1,806 reported assaults. That is one assault for every 449,690 commuters, which makes London's tube system safer than Perth railways in sunny Australia, where last year there was one assault for every 222,360 commuters (This is worth pointing out because Brits have a tendency to move to "happy, peaceful" Australia when they tire of the crime and grime here at home).

As John Stuart Mill knew only too well, regulating the consumption of booze is really about regulating the people themselves. Mill argued that attempts by temperance groups and governments to diminish "the occasions of temptation"—by making booze expensive or shutting down pubs—were suited "only to a state of society in which the labouring classes are avowedly treated as children or savages."

So it's a relief to see that some "savages" in London are rising up against Boris's illiberalism by organising an "Anti-Boris Tube Crawl." On the day the ban comes into force, a Facebook-based group of young radicals plans to get on the London Underground or bus network and drink with abandon. In their own words, they will "do a Rosa Parks and slur ‘No I won't get off the fucking bus you fatuous Etonian fuckhead.'"

In his previous life, Boris also bemoaned the way young people were not allowed to kick back, relax, and experiment, but instead were expected—under threat of receiving an ASBO from the courts—to be well-behaved bores.

In 2005, he commissioned me to write an article about Britain's boring, pro-Blairite pop music scene, which "preached safety, caution, respectability and good manners" and turned youngsters into "good little Blairites even before they reach adulthood."

Now, Boris has joined the Blairites in declaring war on youth. He announced that young people who commit even minor misdemeanours on public transport will have their travel passes confiscated, and they won't get them back until they carry out some form of community service. Like a Stalinoid, he'll deny internal freedom of movement within London to any youngster who fails to behave in a Boris-approved fashion.

He used to refer to the fanatical sections of the environmentalist movement as a "new religion," whose adherents like the "sweet moralistic feeling of telling someone to stop doing something." Now he has banned London officials from taking internal flights in the UK because flying farts out too much CO2 into the environment.

Most shockingly, Boris is installing so-called "knife arches"—metal detectors to check if commuters are carrying weapons—in train and bus stations, and he might put them on busy streets, too. He wants to get rid of the "scourge" of rising knife crime. Like all authoritarian rulers, he has twisted the stats: knife crime in Britain is not rising. The most recent crime survey by the Metropolitan Police showed that knife crime has dropped by 15.7 per cent over the past two years, from 12,122 to 10,220 incidents.

Boris's "knife arches" send an important message about the shifting relationship between the state and the individual. If we must pass under a "knife arch" when we hop on a bus or even pop to the shops, then we are no longer free citizens—we are objects of suspicion and potential criminals. These arches, like his booze ban and his threats against misbehaving youth, will radically alter life in London, making its inhabitants feel even more watched and distrusted than we were under his Labourite predecessor, Ken Livingstone.

Why did so many observers, including some American libertarians, get Boris so wrong? The truth is that he was always a kneejerk libertarian—that is, his libertarianism was only a party-political reaction against the New Labour elite. His views were never founded on a trust in the masses to make wise choices and to live as they saw fit. Now that he is in power, Boris has ditched the anti-authority posturing in favour of pushing through his own authoritarian agenda. Londoners, I hope, will react with anger against his illiberal, intolerant regime.

Brendan O'Neill is editor of spiked.

Forbidden Sacramental Wine and Madonna of the Hamptons

kmw@reason.com (Katherine Mangu-Ward) — Wed, 28 May 2008 10:54:00 EDT

The flowers are blooming, the bees are buzzing, and fancy galleries in the Hamptons are debuting photo exhibits featuring Madonna half-naked with a riding crop. Ah, spring.

And what would go better with the aforementioned photo than a glass of vino and a cheese tray? Absolutely nothing, thought 67-year-old Vered Gallery owner Ruth Kalb. The East Hampton police thought otherwise, dropping in for a routine inspection, liquor confiscation, and a good handcuffing. (No, not by Madonna.)

"It's going to take a lot more than that for me to stop doing what I'm doing," [gallery owner Ruth Kalb] told The New York Post.

Like everyone's favorite Mennonite raw milk rebel, Kalb could have gotten a permit, but didn't, and doesn't think she has anything to apologize for.

There a nice snooty weekend home Jets and Sharks aspect to the story as well, with the Southampton cops talking trash about the East Hampton cops' overreaction.

Read more under the New York Postalicious headline "Booze & Hisses."

Via reason contributor Todd Seavey, who writes that this is the kind of incident that "should just cut across ideological divides and unite everyone not simply in thinking 'That sounds excessive' but in thinking 'Government is complete bullshit, and we were not born to be slaves to these uniform-wearing goons.'"

Mommy Government

rbalko@reason.com (Radley Balko) — Wed, 28 May 2008 00:13:00 EDT

Swiped from the latest edition of Cato Policy Report.

But what if I don't want to give a crap?

Your Fingerprints Are Literally All Over This Housing Bill

gillespie@reason.com (Nick Gillespie) — Fri, 23 May 2008 11:39:00 EDT

reason contributor John Berlau looks at the fine print of a Senate housing bill and finds a mess of whorls that might just play havoc with your right to anonymity:

...a measure creating a federal fingerprint registry totally unrelated to national security passed a U.S. Senate committee almost without notice. The legislation would require thousands of individuals working even tangentially in the mortgage and real estate industries - and not suspected of anything - to send their prints to the feds. The database and fingerprint mandates were tucked into housing and foreclosure assistance bills that on Tuesday passed the Senate Banking Committee by a vote of 19-2.
The measure the committee passed states that "an indvidual may not engage in the business of a loan originator without first ... obtaining a unique identifier." To obtain this "identifier," an individual is requiredto "furnish" to the newly created Nationwide Mortgage Licensing System and Registry "information concerning the applicant's identity, including fingerprints for submission" to the FBI and other government agencies.

More here.

True confession: The first merit badge I ever earned in the Boy Scouts on the long path to the rank of Eagle, was Fingerprinting.

Reason #4,862 Why Taco Bell Is a Bad Diet Restaurant

kmw@reason.com (Katherine Mangu-Ward) — Thu, 22 May 2008 14:42:00 EDT

Calorie counts on restaurant menus aren't all they they're cracked up to be, according to an investigation by Scripps Television. Over a period of several months, the station tested "healthy" options at chain restaurants like Chili's and Taco Bell in several cities. The results were, well, disheartening:

The Macaroni Grill sample showed the widest variance from the menu's claims. Its "Pollo Margo[sic] Skinny Chicken," which was supposed to have 500 calories, actually had 1,022, according to the testing. The chicken dinner was supposed to have 6 grams of fat. It had 49....
Taco Bell's products also contained more calories than the company claimed. Its "Fresco Grilled Steak Soft Taco" had four times as much fat and almost twice as many calories as advertised. The steak taco is supposed to have 4.5 grams of fat and 160 calories; testing showed it to actually have 20 grams of fat and 297 calories.

This is a classic case where fraud should be punished--lying to your customers about nutrition info is already a legal no-no--but mandating widespread calorie reporting probably won't make counters more honest, it will just make this kind of dishonesty more widespread.

But there may not have been malice here. Most likely, somewhere in a lab at Macaroni HQ, there is a perfect, Platonic, and rather smallish preparation of Pollo Magro's Skinny Chicken that fits the specs described on the menu. (Actually, this menu[PDF] from Macaroni's corporate parent website claims a mere 330 calories for the dish.)

But short of going for some pretty unappealing options, like sending everything pre-packaged to every location (which would undermine various claims to freshness, homemadeness, etc.) the food will always be pushed and padded, shrunken or swollen, depending on customer taste, local custom, and whether or not the line cook's girlfriend broke up with him last night.

Getting a few more calories than you intended is a risk you take by eating out, and one that every adult understands. Again, lying to customers on purpose is unacceptable, but bound to happen in the world of individually-prepared restaurant dishes. And as Jacob Grier, from whom this link originated, points out, a little common sense is called for as well: the "skinny" meal involves a big hunk of chicken and a decent amount of feta cheese.

Some Bets Are Off

jsullum@reason.com (Jacob Sullum) — Mon, 19 May 2008 12:00:00 EDT

On July 16, 2006, the CEO of BetOnSports.com attacked an anti–online gambling bill that the House of Representatives had overwhelmingly approved a few days before. “We want to be regulated,” David Carruthers wrote in the Baltimore Sun. “We want to be taxed. We want to be licensed. Instead of dealing with us constructively to address issues of mutual concern, these legislators prefer to pretend that they can control the Internet. Instead of protecting the public, they would rather waste time on public posturing to their partisan base.”

It wasn’t hard to understand why Carruthers was upset. The bill, part of the “American Values Agenda” championed by House Republicans, would have classified him as a felon, subject to a five-year prison sentence for the crime of accepting bets from Americans. What Carruthers evidently did not realize was that the U.S. Justice Department already considered him a felon. On the very day his plea for legitimacy appeared in the Sun, Carruthers was arrested at the Dallas/Forth Worth International Airport during a layover between London and Costa Rica.

Carruthers, a native of Scotland, thought he was running “the largest online wagering company in the world.” But according to Catherine Hanaway, the U.S. attorney for the Eastern District of Missouri, he was running a racketeering conspiracy. Now awaiting trial in St. Louis, Carruthers faces up to 20 years in prison if convicted of racketeering or mail fraud, which he supposedly committed by advertising that BetOnSports was “legal and licensed.” Never mind that BetOnSports was legal and licensed in the U.K., where it was incorporated, and in Costa Rica, where its operations were based.

Although he had been a highly vocal and visible critic of U.S. gambling policies, Carruthers miscalculated just how determined prosecutors and politicians were to deny Americans the right to bet online. Opponents of Internet betting, including both paternalists afraid of human frailty and domestic gambling interests afraid of competition, are eager to prosecute businesses the rest of the world considers legitimate. They are prepared to go after not just the gambling sites themselves but also third-party payment processors, marketers, even media outlets that carry ads for online poker or sports betting. In doing so the prohibitionists are willing to risk the collapse of international trade agreements and saddle American financial institutions with the onerous burden of monitoring transactions for signs of “unlawful Internet gambling.” All in a vain attempt to stop Americans from doing online what they already do by the millions in convenience stores and delis, at racetracks and casinos, and in poker games and football betting pools throughout the country.

‘The Crack Cocaine of Gambling’
The bill that Carruthers criticized on the day of his arrest was the Internet Gambling Prohibition and Enforcement Act, sponsored by Rep. Bob Goodlatte, a Republican who since 1993 has represented a northwestern Virginia district that includes Roanoke and Lynchburg (home of Jerry Falwell’s Liberty University). Goodlatte had tried for years to ban online gambling, which he calls a “scourge on the Internet.” He was joined in that effort by other conservatives, including Sen. John Kyl (R-Ariz.), who calls Internet betting “the crack cocaine of gambling,” and former Rep. Jim Leach (R-Iowa), who says it “erodes family values.”

In 2006 Goodlatte’s bill was combined with a Leach bill to become the Unlawful Internet Gambling Enforcement Act (UIGEA). The law was tacked onto an unrelated, supposedly urgent measure dealing with port security, which Congress passed just before adjourning for mid-term elections in 2006.

Unlike Goodlatte’s original bill, the UIGEA does nothing to clarify or expand the Wire Act of 1961, which prohibits using “a wire communication facility” to accept bets “on any sporting event or contest.” The Wire Act applies only to people “engaged in the business of betting,” not individual gamblers. It also seems limited to sports betting, an interpretation endorsed by the U.S. Court of Appeals for the 5th Circuit in 2002. Although the Justice Department implausibly maintains that the Wire Act covers other forms of gambling as well, including poker and blackjack, all the defendants it has successfully prosecuted under the law were involved in sports betting. Even in those cases, the equation of the Internet with a “wire communication facility” is questionable, as is the extraterritorial application of the law to businesses with no U.S. presence.

While Goodlatte’s original bill would have updated the Wire Act with the Internet in mind and extended it to cover other forms of online gambling, the UIGEA does neither. It makes accepting money in connection with “unlawful Internet gambling” while “engaged in a gambling business” a federal crime punishable by up to five years in prison, but it leaves the definition of unlawful Internet gambling as fuzzy as ever. “It’s a mess,” says Nelson Rose, a professor at Whittier Law School and a leading expert on gambling law. “Nobody ever read it. There were no debates on it. It’s really a piece of garbage. It doesn’t clarify what’s legal and illegal, so the definition of what is an unlawful Internet gambling transaction depends on other federal or state laws.”

The UIGEA’s definition of unlawful Internet gambling explicitly excludes fantasy sports, in which participants create imaginary teams whose performance is judged by the real-life performance of the teams’ players. The law says these contests are OK as long as the prizes are determined in advance and the fantasy teams are not identical to any actual teams. The latter condition is aimed at preventing fantasy sports contests, which the professional sports leagues endorse, from morphing into actual sports betting, which they oppose. The leagues, which supported the UIGEA, are adamantly against broader legalization of sports betting, currently permitted only in Nevada, because they fear it would have a corrupting effect.

The UIGEA also includes an exemption for intrastate online gambling that is “expressly authorized” by state law, such as lotteries. Whether the law allows online participation in multistate lotteries such as Powerball is unclear. So is the legal status of interstate betting on horse racing via the Internet, offered by sites such as allhorseracing.com and youbet.com. The UIGEA includes an exemption for “any activity that is allowed under the Interstate Horseracing Act of 1978.” Businesses that take off-track bets and the state governments that license them read that law as allowing online betting, but the Justice Department disagrees. The UIGEA explicitly declines to resolve the issue, saying “this subchapter shall not change which activities related to horseracing may or may not be allowed under Federal law.”

Since the Justice Department is not likely to prosecute the officials who run interstate lotteries or the state-licensed businesses that take horse racing bets, the upshot is that the UIGEA leaves unmolested two politically favored forms of gambling that happen to generate government revenue and campaign contributions. (The horse racing industry donated more than $3 million in the run-up to the UIGEA, overwhelmingly to Republicans, including Goodlatte.) The law also lets brick-and-mortar casinos—another source of tax revenue and campaign money—offer remote gambling that does not cross state borders.

“No bill that would completely ban Internet gambling has advanced very far,” says Dan Walsh, director of government affairs at the Interactive Gaming Council, which represents online gambling companies. “It has to have exemptions, and when you have exemptions, you get caught in internecine fights between [Indian] tribes and commercial casinos, between horse racing and dog racing, between states that want to take lotteries online and convenience stores that don’t want the states to take lotteries online. The whole point of the bill is to stay out of those fights.”

Eliot Spitzer Doesn’t Want You to Pay for Fun
Although the UIGEA did not ban online gambling, it made life more complicated for operators of gambling websites. To begin with, it created a new federal charge, “acceptance of any financial instrument for unlawful Internet gambling,” and an additional penalty for people involved in gambling businesses that were already considered illegal. The Justice Department could have included this charge in its indictment of David Carruthers, adding five years to his potential sentence, if only the UIGEA had existed prior to his arrest.

By saying that unlawful Internet gambling includes betting prohibited by the state in which the bet “is initiated, received, or otherwise made,” the UIGEA also may have made it easier to prosecute people who accept online bets on things other than sports. About a dozen states explicitly ban online gambling, and “just about every state either has in their common law or in their state constitutions a flat prohibition on gambling that’s not expressly authorized,” says Behnam Dayanim, an attorney specializing in gambling issues at the Washington law firm Paul Hastings, which represents the Gibraltar-based online gambling company PartyGaming.

Prior to the UIGEA, other federal gambling statutes referred to state law, but none of them mentioned the Internet. Hence it was doubtful that Congress had authorized states to regulate interstate and foreign commerce, a federal power under the Constitution, by criminalizing the actions of website operators in other countries. An online casino also could argue that its acceptance of a bet from a gambler in, say, Salt Lake City occurred in Costa Rica (or wherever its server was located) and therefore did not violate Utah law.

“In one fell swoop, Congress destroyed both of those defenses,” says Dayanim. “As far as the locus [of the violation] goes, they’re saying it doesn’t matter for the purposes of UIGEA where the wager is occurring or where the business is located. And by referencing laws of a state in the definition of unlawful Internet gambling, Congress has said it’s deferring to state law on this.” It’s less clear, he adds, whether the UIGEA changed anyone’s liability under other federal laws, such as the Illegal Gambling Business Act or the Racketeer Influenced and Corrupt Organizations Act.

Nelson Rose disagrees with Dayanim’s reading of the UIGEA, saying “the only thing this statute did is it created a new federal crime of being in a gambling business and accepting money for an unlawful Internet gambling transaction.” Until the Justice Department tries to prosecute someone with no involvement in sports betting for violating the UIGEA, it won’t be clear who’s right. So far there have been no prosecutions under the new law.

Assuming that foreign operators of gambling websites avoid layovers in the U.S., the biggest problem the UIGEA created for them is its chilling effect on the processing of online bets. Under UIGEA regulations proposed by the Treasury Department, U.S. financial institutions will have to adopt “policies and procedures” that are “reasonably designed” to block transactions associated with unlawful Internet gambling. But neither the UIGEA nor the Treasury Department will say precisely which transactions those are. Given the uncertainty, the safest course for banks is to avoid any sort of online gambling, whether clearly illegal, arguably illegal, or clearly legal.

Even before the UIGEA, most U.S. credit card issuers had stopped processing online gambling transactions under pressure from state and federal prosecutors. PayPal, the online payment processor, picked up much of the slack, but in 2002 it reached deals with New York Attorney General Eliot Spitzer and the U.S. Justice Department under which it promised to eschew online gamblers. Spitzer, who got into some trouble of his own involving payments for illegal recreational activities after he was elected governor, said “this case shows that we intend to stop any company who facilitates illegal gambling transactions.” PayPal paid New York $200,000 in “disgorged profits, costs of investigation, and penalties,” a pittance compared to the $10 million the company shelled out to settle federal charges that it had violated the PATRIOT Act by transmitting funds derived from criminal activity.

Neteller, a payment processor based in the Isle of Man, stepped into the breach left by PayPal until January 2007, when company founders Stephen Lawrence and John Lefebvre, both Canadians, were arrested in the U.S. on charges of conspiracy and money laundering. Like Carruthers, they faced prison sentences of up to 20 years for helping Americans place bets via the Internet, a line of work the FBI called “a colossal criminal enterprise masquerading as legitimate business.” Last June, Lawrence pleaded guilty to one count of conspiracy, which carries a maximum sentence of five years; Lefebvre is still awaiting trial. After the arrests, Neteller abruptly abandoned the U.S. market.

Money Wandering
Despite the UIGEA and the Justice Department’s threats, several options remain for Americans who are determined to brave Bob Goodlatte’s disapproval by playing poker or placing sports bets online. “Overseas banks, because they’re not covered by the statute or the proposed regs, are going to look at this as a great opportunity to sell credit cards to Americans,” says Rose. Other methods include foreign-based e-wallets, e-checks, cashier’s checks, money orders, faux phone cards, foreign bank accounts, and payments to overseas intermediaries that do not sound like gambling operations.

“People have been setting up payment processors in all sorts of weird locations, including Russia, specifically to process gambling transactions,” says Jim Murphy, a professional sports bettor. “They’re basically just names to get money to the sports book, but instead of sending it to, say, 5Dimes Sportsbook in Costa Rica, you’re sending it to ABC Investment Consultants or ABC Shipping International in Costa Rica.”

Even an ordinary paper check in the mail will do in a pinch, since the Treasury Department has decided it would be too onerous to demand that banks scrutinize every handwritten payee’s name for gambling connections. “I don’t know of anybody who’s had serious difficulty in actually providing payment to an online operator,” says Joseph Kelly, a professor of business law at SUNY-Buffalo and co-editor of the journal Gaming Law Review.

At the same time, driving online gambling transactions underground increases the potential for fraud and money laundering, two problems Goodlatte and his allies claimed to be concerned about. “It forces people who want to play to find alternative means of funding their accounts rather than just using the most transparent system of all, the U.S. banking system,” says John Pappas, executive director of the pro-legalization Poker Players Alliance. “What we’d like to see is a regulated system that provides consumer protections.”

Passage of the UIGEA, combined with the BetOnSports and Neteller arrests, scared publicly traded gambling companies such as PartyGaming and 888.com out of the U.S. market. But scores of privately held operations, including Bodog, Poker Stars, Full Tilt, and Ultimate Bet, remained. “There still are a number of very reputable sites serving the U.S. market,” says Pappas, and “the people who were playing on the publicly traded sites have simply migrated to these other sites.”

There don’t seem to be any firm numbers on how online gambling revenue—estimated at $12 billion worldwide in 2006, about half of it from the U.S.—has been affected by the new crackdown. In February 2007, right after the UIGEA took effect, the Associated Press cited “industry observers” who estimated that online betting was “down by as much as 50 percent” worldwide. Since that would mean American betting had been completely eliminated, it seems implausible. In any case, business seems to have bounced back. “Every anecdotal response I’ve gotten is that there was a [downward] blip at first but that things are pretty much back to normal,” Kelly says.

For companies driven out of the American market, of course, the number of U.S. customers has fallen to zero. Some, such as PartyGaming, have entered into negotiations with the U.S. Justice Department to avoid civil and criminal charges based on their pre-UIGEA actions. By admitting wrongdoing, paying fines, and agreeing to asset forfeitures, they can eliminate the threat of lawsuits and prosecution while positioning themselves to re-enter the U.S. market should the legal environment become more hospitable.

The Mouse That Gambled
Not all of the foreign-based companies banished by the Justice Department’s threats have taken it lying down. The most conspicuous act of resistance was a World Trade Organization (WTO) complaint filed in 2003 by the tiny Caribbean nation of Antigua and Barbuda, home to 69,000 people and dozens of online gambling companies. Antigua argued that the United States was violating its WTO commitments by allowing some forms of domestic online gambling, including bets on horse races, while trying to stop foreign companies from serving American gamblers. Although the complaint seemed quixotic at first, in 2004 an arbitration panel agreed that America’s gambling policies amounted to a discriminatory trade barrier, a finding that was upheld on appeal a year later. Showing a comical lack of self-awareness, Goodlatte called the ruling “appalling,” saying, “It cannot be allowed to stand that another nation can impose its values on the U.S.”

The WTO said Antigua was entitled to compensatory sanctions, and Antigua asked for $3.4 billion a year, an estimate of the revenue businesses there would lose as a result of being excluded from the American market. It also suggested that, given the relative sizes of the two countries, the sanctions take the form of permission to disregard U.S. intellectual property rights, which would allow it to recoup its losses in the gambling market by selling unlicensed CDs, DVDs, and software. Last December a WTO arbitration panel agreed but limited the proceeds to $21 million a year, 42 times the $500,000 proposed by the U.S. but less than one-hundredth the figure suggested by Antigua. Mark Mendel, Antigua’s lawyer, called the award “absurdly low.”

But Antigua isn’t done. To comply with its trade agreements, the U.S. government could open its online gambling market to foreign companies, the option preferred by Antigua. Alternatively, it could impose a blanket ban on all forms of online gambling, which would eliminate the discriminatory treatment of foreign companies. Instead it has announced its intention to withdraw its trade commitment covering remote gambling. In other words, rather than changing its gambling laws so they comport with its trade commitments, the U.S. has said it will change its trade commitments so they comport with its gambling laws. Rep. Shelley Berkley (D-Nev.), who wants to study the feasibility of legalizing and regulating online gambling, calls this move “the trade equivalent of taking our ball and going home.”

In January, Antigua, joined by Costa Rica, asked the WTO to arbitrate the dispute regarding America’s unilateral revision of its trade commitments. The arbitration process could put the kibosh to deals the U.S. reached in December with the European Union, Canada, and Japan, each of which was inspired by Antigua to file its own gambling-related trade complaint. Under those deals, the U.S. promised broader access to several American service sectors in exchange for cutting remote gambling out of its trade agreements. But now that Antigua and Costa Rica have revived the issue, WTO rules say parties that have reached settlements can reconsider them. Macau and India, which have filed gambling-related WTO complaints that have not yet been resolved, could tag along as well. Meanwhile, at the urging of the Remote Gambling Association, a trade group, the E.U. is looking into the possibility of filing a new WTO complaint arguing that the U.S. government is violating its trade commitments by treating foreign businesses involved in online gambling like criminal gangs, as illustrated by the BetOnSports and Neteller cases.

Antigua’s WTO victory could play a role in those cases. A brief filed last year on behalf of BetOnSports founder Gary Kaplan (who was indicted along with David Carruthers) argues that the U.S. government’s prosecution of Kaplan violates legally binding trade agreements. The brief cites the Charming Betsy doctrine, which derives from an 1804 Supreme Court case involving a schooner of that name: “Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.”

The authors warn that disregarding this principle could have serious international repercussions. “If the United States can today continue to enforce criminal legislation that is not only violative of binding international law norms but that has been definitely condemned by tribunals to whose rulings we have pledged to adhere,” they note, “there is nothing to prevent other countries from following the same course when faced with WTO rulings favorable to the United States and unfavorable to them.”

New York University law professor Joseph Weiler, an international trade expert who advises law firms whose clients could be prosecuted for helping Americans gamble online, took up the same theme in testimony to the House Judiciary Committee last fall. “There is no question that under international law the ban on remote betting by providers situated in WTO countries is illegal,” he said. “Despite this illegality, the executive branch has persisted in indicting and prosecuting individuals and corporations whose activities should have been protected by the binding international obligations.”

That policy, Weiler warned, “is detrimental to the reputation of the United States as a champion of the rule of law” and “is an invitation to other countries…to withdraw commitments rather than honor them.” Should China one day decide it no longer wants to respect U.S. copyrights, or should the E.U. decide to exclude U.S. agricultural products, the United States could not reasonably object to such unilateral revision of trade agreements, given the precedent it is setting in the area of gambling.

Abetting Betting
The international implications of the online gambling crackdown extend beyond trade. According to the U.S. Justice Department, anyone who operates a gambling website that’s accessible to Americans, even if it’s based in a jurisdiction where the business is legal and licensed, is criminally liable in the United States. If he should happen to visit or pass through the U.S., he is subject to arrest, prosecution, and imprisonment.

How would Washington react if an American visiting Tehran or Beijing received similar treatment because he had posted material on a U.S.-based website that authorities in Iran or China deemed indecent or subversive? How would it view a request for the extradition of such a “criminal”? “This is a very dangerous precedent,” says attorney Behnam Dayanim, “because it sets the stage for that kind of activity, and to the extent we object we would be subject to charges of hypocrisy.”

A week after David Carruthers’ arrest, London’s Daily Telegraph quoted “a source close to PartyGaming” who said, “If they start doing this they risk behaving like China.” He was referring to the Chinese government’s effort to prevent Chinese citizens from visiting websites it considers objectionable, an effort in which it had enlisted the assistance of U.S.-based search engines, to the consternation of American politicians. “The U.S. Congress that was appalled by Google’s supine attitude,” the Telegraph noted, “is the same Congress that overwhelmingly passed an anti-online gambling bill last week.”

The comparison with Chinese censorship is not so far-fetched, especially when you consider that the U.S. government has threatened to prosecute people merely for providing information about online gambling. In June 2003 Deputy Assistant Attorney General John Malcolm sent a letter to media trade groups warning that their members could be breaking the law by accepting ads for gambling websites. Under the Justice Department’s theory, running the ads could amount to “aiding and abetting” illegal gambling, a crime punishable by up to two years in prison.

“It was our attempt to be as gentle as we could,” a Justice Department spokesman told The National Law Journal in 2005. “We were letting them know that accepting advertising from an Internet gambling firm is against the law and it could be used in an aiding and abetting statute.…A lot of that pressure has worked.” This intimidation campaign has spurred cable TV channels, radio stations, magazines, search engines, and billboard companies to stop carrying ads for gambling websites.

To people who view online gambling as a legitimate business, the U.S. government’s insistence that citizens of other countries help it protect American gamblers from themselves is all the more galling because the moralism underlying it is so inconsistent. Last fall Massachusetts Gov. Deval Patrick produced a particularly glaring example of politicians’ gambling hypocrisy when he proposed a bill that would authorize three casinos in the state while at the same time banning Internet betting.

Under Patrick’s bill, people who place online bets, including casual poker players and sports bettors, could be punished by up to two years in jail and a $25,000 fine. The idea, it seems, is to protect the casinos from competition and thereby maximize the revenue they generate for the state through license fees and taxes. Similarly, a Washington state law enacted in 2006 treats most online gamblers as felons, subject to penalties of up to five years in prison and a $10,000 fine, but exempts state-sanctioned horse racing.

Protectionism helps explain why, despite all the railing against online gambling by politicians like Bob Goodlatte and John Kyl, the bill that finally passed Congress left the law ambiguous. “For me this is more about driving foreign traders out of action so Nevada and Vegas don’t lose out on business in the future,” a London lawyer told the Sunday Telegraph last year. “The moves being made now give the U.S. time to sort out the legalization of online gaming and give the Vegas brands time to establish [themselves] online.”

The American Gaming Association, which represents brick-and-mortar casinos, was officially neutral on the UIGEA, and it is not backing a bill sponsored by Rep. Barney Frank (D-Mass.), chairman of the House Financial Services Committee, that would create a federal system of licensing and registration for online gambling businesses while allowing states to restrict or prohibit Internet betting within their borders. But the association “strongly supports” a bill sponsored by Nevada’s Rep. Berkley that would commission a one-year National Research Council study of how best to regulate online gambling, including an examination of methods used to block bets by minors and discourage excessive betting.

“They want an objective study,” says Kelly, the law professor. “They’ve got to make the case before the American people. They’ve got to convince some of their own members.…Then the American Gaming Association, I think, would push for regulation.”

Since legal gambling sites have been up and running for years in various countries, it’s not clear why such a study is needed. Excluding minors is, in essence, a matter of identity verification, something that commercial websites ranging from banks to booksellers routinely do. The methods, which include passwords and inquiries about personal information, are not 100 percent effective, but they work well enough for millions of online businesses to function profitably. Gambling sites have a strong incentive to avoid unauthorized transactions, because they bear the burden of charge-backs if a customer turns out to be a kid with a purloined credit card. Preventing bets by self-identified problem gamblers is also a matter of identity verification, and gambling sites use other methods, such as rules against multiple accounts and preset limits on the size or frequency of bets, to discourage excessive gambling.

‘Some Human Beings Enjoy Doing It’
Opponents of online gambling nevertheless warn that legalization would lure millions of Americans into an addiction that will wipe out their savings, break up their families, and drive them to theft and suicide. “Gambling is not a victimless activity,” Goodlatte told the House Judiciary Committee in November. “Online gambling can result in addiction, bankruptcy, divorce, crime, and moral decline…the costs of which must ultimately be borne by society.…Financial ruin and tragedy are not uncommon among online bettors.”

Actually, they are. In a study sponsored by the Austrian gambling business bwin.com and reported in the Journal of Gambling Studies last year, researchers at Harvard Medical School examined the gambling patterns of more than 40,000 online sports bettors for eight months and found that less than 1 percent qualified as “heavily involved bettors” with large losses. A 2007 survey by the British Gambling Commission found that 6 percent of people who had placed sports bets online and 7 percent of people who had placed other kinds of online bets in the previous year qualified as “problem gamblers,” based on American Psychiatric Association criteria. That does not mean they faced “financial ruin and tragedy”; it means they reported at least three of 10 gambling-related problems, such as “chasing losses,” “a preoccupation with gambling,” “a need to gamble with increasing amounts of money,” and “being restless or irritable when trying to stop gambling.” Notably, the overall rate of problem gambling in the U.K. remained unchanged between 1999 and 2007, despite the rise (and legalization) of Internet betting.

Opponents of online gambling focus on extreme cases and imply they’re typical. A June 2007 hearing on Internet gambling held by the House Financial Services Committee featured testimony by an Ohio minister whose college-age son robbed a bank to pay off the debts he incurred while playing online poker. The research firm Ipsos estimates that 15 million Americans play online poker for money; most of them do not end up robbing banks. According to industry data collected by the Poker Players Alliance, the average online player spends $10 to $20 a week. Players like these are neither winning nor losing large amounts of money; they are mainly having fun, a concept that Bob Goodlatte seems to have trouble comprehending.

Barney Frank, by contrast, gets it. In July 2006, during the congressional debate over the UIGEA, Jim Leach averred that “there is nothing in Internet gambling that adds to the GDP or makes America more competitive in the world.” Frank took exception to Leach’s argument:

“If an adult in this country, with his or her own money, wants to engage in an activity that harms no one, how dare we prohibit it because it doesn’t add to the GDP or it has no macroeconomic benefit? Are we all to take home calculators and, until we have satisfied the gentleman from Iowa that we are being socially useful, we abstain from recreational activities that we choose?…People have said, ‘What is the value of gambling?’ Here is the value: Some human beings enjoy doing it. Shouldn’t that be our principle? If individuals like doing something and they harm no one, we will allow them to do it, even if other people disapprove of what they do.”

Senior Editor Jacob Sullum is a nationally syndicated columnist.

Chicago Reverses Foie Gras Ban

rbalko@reason.com (Radley Balko) — Wed, 14 May 2008 16:12:00 EDT

A rare bit of sanity in the Windy City:

With Mayor Richard Daley running the vote, the Chicago City Council on Wednesday repealed its controversial ban on foie gras.

Over the shouted objections of Ald. Joe Moore (49th), the ban's sponsor, the council used a parliamentary manuever to put the ordinance on the floor for a vote.

The council voted 37-6 to repeal the two-year-old ban, which critics argued had made Chicago--and the City Council--a national laughingstock.

"National laughingstock" honors now fall on the entire state of California, which passed a fois gras ban set to take effect in 2012. Ald. Moore is apparently furious:

Moore, whose pleas for a debate were ignored by Daley, warned fellow aldermen "tomorrow it could happen to you."

I'm guessing Moore was referring to the parliamentary meneuver, and wasn't insinuating that America may one day crave the fatted livers of Chicago politicians over fava beans and a nice Chianti.

reason.tv chatted with celebrity chef Anthony Bourdain about foie gras bans last November.