Reason Roundup

New Hate Crime Bill Protecting Cops Passes House Despite Clear 10th Amendment Violation: Reason Roundup

Plus: Why FOSTA is "unambiguously evil" and fighting back against "pasteurization without representation."

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Douglas Graham / Loudoun Now/Newscom

"Protect and Serve Act" passes House. File under bipartisan-is-just-another-word-for-both-sides-licking-the-same-boot: majorities of both Democrats and Republicans in the U.S. House of Representatives have voted in favor of new hate crime legislation that sets up cops as a protected class.

Overall, just 35 House members voted against the bill (H.R. 5698), which isn't far from making it a federal crime to resist arrest. Under the so-called "Protect and Serve Act," anyone who injures or attempts to injure a police officer will be guilty of a federal offense—no matter how small the injury and no matter if it was intentional—if the offense has some connection to or effect on interstate commerce.

The House Liberty Caucus opposed the creation of this new federal hate crime, which it said "violates the Constitution"—the 10th Amendment grants authority to prosecute offenses against state and local cops only to the states—"and furthers the dangerous federalization of criminal law."

An increasing amount of conduct once only punished at the local level is now falling under the purview of the FBI, the Department of Homeland Security's HSI unit, and immigration agents. (If the shift from community policing to more metrics-based and militaristic models has had bad effects on civilian-cop relations and incarceration rates, just think how much more damage FBI and ICE agents can rack up!)

Lawmakers are justifying the Protect and Serve Act using (what else?) the Commerce Clause. But this "does not significantly narrow the range of covered offenses or avoid the constitutional violation," said the Liberty Caucus statement.

A tenuous connection to economic activity cannot transform a criminal law that has nothing to do with economic activity—and that is is explicitly for the purpose of public safety—into a regulation of interstate commerce. If it could, the Commerce Clause would destroy the Constitution's design for a very limited federal role in criminal law enforcement, covering only a few crimes that are clearly federal in nature.

That ship has long since sailed, alas. But good on the (lonely!) Liberty Caucus for at least trying to stand up against Congress' use of the Commerce Clause like an incantation that overcomes the Constitution.

A related bill in the Senate is currently with the Judiciary Committee.

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FOSTA "unambiguously evil," says law professor; bad effects continue to accumulate. When a bill banning prostitution ads passed the Senate, "a four-hour procession of lawmakers ascended the rostrum to congratulate each other on a rare act of bipartisanship," writes Susan Du at City Pages. "The bill in question was never really up for debate. It was sold as way to rein back a modern surge in the sexual enslavement of women and girls, making use of the internet to enable prostitution punishable by up to 10 years in prison." But if the bill, known as FOSTA, was "supposed to protect sex workers, no one bothered to consult them," writs Du. "The threat to their well-being was immediate."

Trump signed FOSTA in April, but we started seeing its effects almost as soon as the bill passed. By now, we've seen the demise of a slew of sites where sex workers advertise, exchange safety tips, and otherwise communicate. It's also forcing everything from sex-education sites to popular social media platforms to ban discussions of prostitution and even all talk of sex-worker rights and safety.

Scott Cunningham, a Baylor University law professor who has studied the effect of the digital sphere on prostitution, called FOSTA "unambiguously evil." From City Pages:

His 2017 study on Craigslist's personals section is the only empirical analysis of online sex ads' effect on violence against women. Its conclusion: The internet reduced female homicides by 17.4 percent.

"If you care about violence against women—and you should—you absolutely need to care about how FOSTA is unambiguously harming these women," Cunningham says. "And if you believe that most of this market is just trafficked women, or if you define trafficking through the sleight of hand that basically says, philosophically, all prostitution is sex trafficking, you need to talk to some sex workers and ask them if they're trafficked."

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